Brown v. Kemp

• Docket Number: 21-1042
• Decision Date: 13 November 2023
• Citation: 86 F.4th 745
• Parties: Joseph BROWN, et al., Plaintiffs-Appellants, v. Jeffrey L. KEMP, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

86 F.4th 745

Joseph BROWN, et al., Plaintiffs-Appellants, v.Jeffrey L. KEMP, et al., Defendants-Appellees.

No. 21-1042

United States Court of Appeals, Seventh Circuit

Argued September 27, 2021

Decided November 13, 2023

Appeal from the United States District Court for the Western District of Wisconsin.No. 3:17-cv-00549-wmc — William M. Conley, Judge.

Mark Matthew Leitner, Esq., Jessica L. Farley, Joseph S. Goode, Attorneys, Laffey, Leitner & Goode, LLC, Milwaukee, WI, Kelsey Rinehart Eberly, Attorney, Animal Legal Defense Fund, Cotati, CA, for Plaintiffs-Appellants.

Gabe Johnson-Karp, Anthony D. Russomanno, Attorneys, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants-Appellees.

Before Rovner, Hamilton, and Kirsch, Circuit Judges.

Hamilton, Circuit Judge.

Different constitutional rights collide in this case.Article I, section 26 of the Wisconsin Constitution protects the right to hunt.The First Amendment to the United States Constitution protects freedom of speech.Since 1990, Wisconsin has had a special statute making it a crime to harass hunters in various ways.The Wisconsin legislature amended the so-called "hunter harassment law" effective in 2016 in a way that raises First Amendment issues.The amended law makes it a crime to interfere intentionally with a hunter by "maintaining a visual or physical proximity" to the hunter, by "approaching or confronting" the hunter, or by photographing, videotaping, audiotaping, or otherwise recording the activity of the hunter.Wis. Stat. § 29.083(2)(a)(7)(2016).The three plaintiffs here oppose hunting.Plaintiffs have observed hunters on public land and have sometimes approached and confronted them.Plaintiffs have also photographed and filmed hunters' activities, and plaintiffs intend to continue all these activities.Plaintiffs assert that the prohibitions of subsection (2)(a)(7) violate the First and Fourteenth Amendments to the United States Constitution.

In this pre-enforcement challenge, the district court granted defendants' motion for summary judgment.The district court found that plaintiffs lack standing to bring an as-applied challenge to subsection (2)(a)(7) and that their facial constitutional challenges fail on the merits.Brown v. Kemp,506 F. Supp. 3d 649, 651(W.D. Wis.2020).We reverse and remand.

Part I lays out relevant facts and procedural history.Part II begins our analysis by parsing the statutory text to focus the constitutional issues.Part III explains that plaintiffs have standing to bring both their as-applied and facial challenges prior to formal enforcement efforts because subsection (2)(a)(7) has been used to harass and intimidate them and has caused them to refrain from engaging in activity protected by the First Amendment.On the merits, Part IV explains that the clauses of subsection (2)(a)(7) are unconstitutionally vague and/or overbroad.Finally, Part V explains that subsection (2)(a)(7) discriminates against speech and expressive activity based on viewpoint and that defendants have not offered justifications for the provision that satisfy strict scrutiny.

I.Factual & Procedural Background

A.Facts

Plaintiffs are members of or associated with Wolf Patrol, an organization that opposes hunting and monitors and documents hunting activities on public lands throughout Wisconsin to ensure that hunters comply with state regulations.Plaintiffs also seek to educate the public about hunting in Wisconsin.PlaintiffJoseph Brown, a professor at Marquette University, opposes wolf hunting.He makes documentary films to further debate.He has been filming wolf hunters and Wolf Patrol's monitoring activities for several years as part of a documentary film about the pros and cons of wolf hunting in Wisconsin.Working with volunteers with Wolf Patrol, he has amassed over 300 hours of documentary video of hunting in Wisconsin.

PlaintiffStephanie Losse is an environmental and animal-rights advocate and Wolf Patrol volunteer.She monitors hunting activities for illegal and inhumane conduct and takes photographs and videos of hunting activities to use in educational materials for the public.PlaintiffLouis Weisberg is a journalist who has a professional interest in documenting and reporting on hunting in Wisconsin.Weisberg advocates on behalf of Wisconsin wolves and bears and, through his work, provides an outlet for organizations like Wolf Patrol to share with the public their perspective on issues related to hunting.

After subsection (2)(a)(7) of the amended hunter harassment law took effect in 2016, plaintiffs Brown and Losse had a number of encounters with hunters and law enforcement officers, including repeated stops for questioning by law enforcement and harassment by hunters, in the course of plaintiffs' monitoring and documenting activities, including photographing and filming of hunting.All activities relevant to this case have occurred on public lands where both hunters and plaintiffs were legally entitled to be present.

While monitoring hunters on Wisconsin public lands, plaintiff Losse has been stopped by hunters who have accused her of harassment and called law enforcement to the scene.Losse testified that despite her best efforts to comply with the hunter harassment law, she and her colleagues are "regularly stopped and questioned by sheriff's deputies, state police, and DNR officers."On one occasion, a hunter stepped out into the road to stop a Wolf Patrol vehicle that Losse was riding in and told her that "there's a law in the state now that [you] can't be in the area."On another occasion, in 2015, a Polk County sheriff's deputy told Losse that she would be cited for violating the hunter harassment law even before the amendments on photography and video recordings took effect.The deputy did not issue the citation because he experienced technical difficulties when trying to prepare one.In other words, Losse was taken right to the brink of an enforcement action against her for protected activity.

Plaintiff Brown too has had encounters with both hunters and law enforcement that have also gone to the brink of an enforcement action against him.Hunters, seeing Professor Brown and Wolf Patrol filming, have "become irate," approached Brown, and demanded that he and the film crew hand over their footage.Hunters have confronted Brown and Wolf Patrol monitors, surrounding them, using their vehicles to prevent Brown and the others from passing through public roads, and detained them "for hours at a time" while waiting for law enforcement to arrive.During these confrontations, in addition to "yelling" and "name-calling," hunters have threatened Brown and the Wolf Patrol monitors.One hunter told Brown (incorrectly) that he"cannot legally videotape a hunt in Wisconsin."Brown believes, quite reasonably, that this was a reference to the new subsection (2)(a)(7) in the law.He also claims that hunters have, during these encounters, asserted to him and to the Wolf Patrol that they, the hunters, were themselves "officer[s] of the law."Regardless of Brown's account of the statements directed to him, it is undisputed that hunters have repeatedly told Brown that they cannot be photographed and that hunters have repeatedly referred to the hunter harassment law when speaking to law enforcement officers responding to their calls for help in stopping Brown from continuing to film and observe them.

Plaintiffs' standing and claims in this case are not based, however, on hunters' misstatements or exaggerations of the law.Law enforcement officers have also "many times" stopped Brown and Wolf Patrol members he has been working with to ask them why they were "making multiple passes through an area."On one occasion, "the responding officer questioned [Brown] and the Wolf Patrol members for over an hour," taking that time to "explain[]" the hunters' concerns and to obtain information about Brown and the Wolf Patrol members' activities.

The most significant such incident took place in January 2018, shortly after this case was filed.Brown and Wolf Patrol members were doing documentary work in Forest County.A large group of hunters surrounded Brown and the Wolf Patrol members with their trucks, barricading them in while law enforcement was called.One hunter said, "Block 'em in so we can wait for the game warden to get here.We've got 'em f***ed."The hunters proceeded to berate Brown and the Wolf Patrol members, "using foul language and threatening to beat them up and run them over."At one point in the angry confrontation, a hunter drove his pickup truck to bump a member of the Wolf Patrol multiple times.The hunters called law enforcement.

Forest County sheriff's deputies responded, and Brown was questioned about his filming activities.Thinking that Brown may have recorded disputed events in this angry confrontation, deputies seized all of Brown's filming equipment and footage, including four cameras, two memory cards, a microphone, batteries, all videography accessories, and a cellphone.Law enforcement told Brown that they would be seeking a warrant to search his footage.

Twelve days later, deputies applied for and obtained a warrant to search Brown's devices and to view his film footage.The warrant application said that Brown's devices and footage could constitute evidence of violations of Wisconsin's hunter harassment law, as well as four other Wisconsin statutes.¹After searching and viewing all videos and footage seized from Brown, the Sheriff's Department sent the recordings to the District Attorney, defendantCharles Simono, for review.In August 2018, a little more than a year after this lawsuit was filed, District Attorney Simono stated by sworn declaration that no charges would be brought against Professor Brown based on the January 2018 incident.Around that same time, Professor Brown's equipment and recordings were returned to him, roughly seven months after they were seized.

In...