From Brown v. Kemp, decided Monday in an opinion by Judge David Hamilton, joined by Judge Ilana Rovner:
[A Wisconsin law] makes it a crime to interfere intentionally with a hunter by [two or more acts of] "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….
[The prohibitions on] "maintaining a visual or physical proximity" to a hunter and "approaching or confronting" a hunter … are unconstitutionally vague…. They fail to specify, or even to offer any guidance about, how far away a person must stay to avoid engaging in unlawful interference….
Defendants argue that "visual or physical proximity" means "close enough" to impede or obstruct a hunter. That logic takes into account the statutory element of intent to interfere with hunting. But it still leaves the law impermissibly vague. What does "close enough" mean in the context of hunting? Five feet? Fifty feet? Five hundred feet? Five hundred yards? With modern rifles, the distance could be well beyond earshot. Stealth is part of hunting….
The vague statutory language also leaves too much room for arbitrary and discriminatory enforcement, chilling plaintiffs who are reasonably concerned about over-enforcement. The lack of objective criteria in subsection (2)(a)(7) means that enforcement authorities, like individual citizens, cannot know when the line between lawful and unlawful conduct has been crossed…. If the uncertainty and threat of arbitrary enforcement by public officials were not enough, plaintiffs are also subject to arbitrary enforcement at the hands of hunters and hunting parties [via citizen's suits authorized by the law]….
Clause (c) prohibits "photographing, videotaping, audiotaping, or through other electronic means, monitoring or recording the activities of" a hunter or member of a hunting party. Such monitoring activities are prohibited "regardless of where the act occurs." On its face, the text of the statute carves out no exemptions for monitoring and recording activities that aim to contribute to public discourse. It treats newsgathering and silent-protest monitoring the same as recordings made for solely individual use….
