Binkowski v. State6/24/1999
772, 781 (1984); accord New York State Club Ass'n, Inc. v. City of New York, 487 U.S. 1, 11, 108 S. Ct. 2225, 2233, 101 L. Ed. 2d 1, 14 (1988); see also New York v. Ferber, 458 U.S. 747, 768 n.21, 102 S. Ct. 3348, 3360 n.21, 73 L. Ed. 2d 1113, 1130 n.21 (1982). Either way, in advancing a facial challenge to the constitutionality of a statute, the challenger confronts "a heavy burden." Rust v. Sullivan, 500 U.S. 173, 183, 111 S. Ct. 1759, 1767, 114 L. Ed. 2d 233, 249 (1991) (recognizing that a claimant making a facial challenge "must establish that no set of circumstances exists under which the Act would be valid" (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 2100, 95 L. Ed.2d 697, 707 (1987))).
A.
As earlier noted, plaintiffs argue that the Hunter Harassment Statute regulates the content of speech because it punishes those who espouse an anti-hunting message. We disagree. By its terms, the statute plainly regulates conduct. Further, the regulated conduct is not sufficiently expressive to constitute speech. Examining the statute on its face, we conclude that it only seeks to proscribe physical interference with the lawful taking of wildlife.
Conduct does not constitute speech simply because the actor intends to convey a message thereby. O'Brien, supra, 391 U.S. at 376, 88 S. Ct. at 1678, 20 L. Ed. 2d at 679. Otherwise, "an apparently limitless variety of conduct [could] be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Ibid. Indeed, " irtually any law enacted by a State, when viewed with sufficient ingenuity, could be thought to interfere with some citizen's preferred means of expression." Spence v. Washington, 418 U.S. 405, 417, 94 S. Ct. 2727, 2734, 41 L. Ed. 2d 842, 851 (1974) (Rehnquist, J., Dissenting). Nonetheless, the United States Supreme Court has "acknowledged that conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,'" Texas v. Johnson, 491 U.S. 397, 404, 109 S. Ct. 2533, 2539, 105 L. Ed. 2d 342, 353 (1989) (quoting Spence, supra, 418 U.S. at 409, 94 S. Ct. at 2730, 41 L. Ed. 2d at 846). Whether conduct is "sufficiently imbued with elements of communication" depends largely on the context in which the conduct occurs and on whether the actor has " n intent to convey a particularized message ... [as well as] ... the likelihood ... that the message would be understood by those who viewed it," Roulette v. City of Seattle, 97 F.3d 300, 303 (9th Cir. 1996) (en banc) (quoting Spence, supra, 418 U.S. at 410-11, 94 S. Ct. at 2730, 41 L. Ed. 2d at 847) (first alteration and second ellipsis in original).
Roulette involves a facial challenge to the validity of a city ordinance prohibiting "sitting" or "lying" on sidewalks during certain hours of the day. Judge Kozinski, speaking for a majority of the Ninth Circuit Court of Appeals en banc, concluded that, although sitting can possibly be expressive, that "isn't enough to sustain plaintiffs' facial challenge to the Seattle ordinance." Id. at 303. In this regard, Judge Kozinski explained:
"It's true that our ordinary reluctance to entertain facial challenges is somewhat diminished in the First Amendment context. See, e.g., Massachusetts v. Oakes, 491 U.S. 576, 581, 109 S. Ct. 2633, 2637, 105 L. Ed. 2d 493 (1989). However, this is because of our concern that "those who desire to engage in legally protected expression ... may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S. Ct. 2794, 2801-02, 86 L. Ed. 2d 394 (1985). Consistent with this speec
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