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Binkowski v. State6/24/1999
h-protective purpose, the Supreme Court has entertained facial freedom-of-expression challenges only against statutes that, "by their terms," sought to regulate "spoken words," or patently "expressive or communicative conduct" such as picketing or handbilling. See Broadrick v. Oklahoma, 413 U.S. 601, 612-13, 93 S. Ct. 2908, 2916, 37 L. Ed. 2d 830 [(1973)]. Seattle's ordinance does neither. By its terms, it prohibits only sitting or lying on the sidewalk, neither of which is integral to, or commonly associated with expression." [Id. at 303-04 (footnotes omitted) (emphasis added).]
Employing this approach, it is plain that the Hunter Harassment Statute by its express terms prohibits only conduct that is not "integral to or commonly associated with expression." The statute sets forth a core of easily identifiable and constitutionally proscribable conduct. Specifically, it prohibits a person, "for the purpose of hindering or preventing the lawful taking of wildlife," from "block , obstruct , or imped , or attempt to block, obstruct or impede a person lawfully taking wildlife." N.J.S.A. 23:7A-2a. It also prohibits a person from "mak or attempt to make loud noises or gestures," or from performing a number of other physical activities "in order to disturb, alarm, drive, attract, or affect the behavior of wildlife or disturb, alarm, disrupt, or annoy a person lawfully taking wildlife." N.J.S.A. 23:7A-2g.
Further, we are convinced that the statute is not intended to favor pro-hunting advocates because there is a myriad of purposes behind the Legislature's decision to regulate hunting. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 2754, 105 L. Ed. 2d 661, 675 (1989) ("A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages and not others.").
For instance, at least as to the deer population, the State maintains that " unting has been and continues to be the major deer population control methodology employed by the Division [of Fish, Game and Wildlife] to maintain numbers at levels that minimize adverse impacts to both native vegetation and croplands." The State further asserts that controlling the excessive deer population is necessary to reduce the escalating " roperty damage and personal injury due to deer-auto collisions." It also certified that the State budget is benefitted through license fees, the proceeds of which contributes to further acquisition of green acres properties. Hence, even if the purpose of the statute is not evident on its face, it is clear that the purpose is not to protect the hunter from the anti-hunting viewpoint, but to advance public safety and welfare.
Judge Kozinski points out in Roulette that no case decided by the United States Supreme Court after Broadrick v. Oklahoma, 413 U.S. 601, 93 S. Ct. 2908, 37 L. Ed. 2d 830 (1973), a facial overbreadth case, has entertained a facial challenge under the First Amendment against a statute unless by its express terms it sought to regulate spoken words or patently expressive conduct. Roulette, supra, 97 F.3d at 303 & n.6. Indeed, virtually all of the "expressive conduct" First Amendment cases decided by the United States Supreme Court are "as applied" cases, not cases involving facial challenges to the terms of the statute as plaintiffs make here. The fact that plaintiffs can argue that, in some worst case scenario, they may be charged with a violation of the statute for doing one of the proscribed statutory acts while expressing their anti-hunting message does not mean the entire statute should be struck down as facially invalid.
Even in a First Amendment case, federal
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