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3 Animal L. 129 (1997)
Where Do We Draw the Line between Harassment and Free Speech: An Analysis of Hunter Harassment Law

handle is hein.journals/anim3 and id is 139 raw text is: WHERE DO WE DRAW THE LINE BETWEEN HARASSMENT AND FREE SPEECH?: AN ANALYSIS OF HUNTER HARASSMENT LAW By KATHERiNE HESSLER* L INTRODUCTION This article examines the constitutionality of the Recreational Hunt- ing Safety and Preservation Act of 1994,1 referred to as a hunter harass- ment law, -and offers conclusions about the future direction of constitutional analysis of laws regulating protests against hunting. At its core, the article addresses the right to protest embodied in the First Amendment, and specifically, the protection of symbolic speech as a method of protest. The article considers the new hunter harassment law as a response to protests by the animal protection movement.- The uniqueness of hunt protests presents new legal questions which make traditional constitu- tional analysis incomplete and unsatisfactory. Hunt Protests combine traditional and creative modes of speech with expressive conduct. This combination presents analytical difficulties in establishing the line be- tween permissible speech and impermissible conduct. In hunt protest cases, the mere presence of a protester may inhibit the success of a hunter, which achieves one of the protester's goals. This rare circum- stance, where the means of the protest may secure the desired ends, makes determining which conduct is protected free speech, and which is not, a difficult constitutional question. In other instances such as lunch counter sit-ins, where a combination of traditional and creative methods of protest were tested, the actions of protesters were not protected by the First Amendment.3 However, this article suggests that courts should accord such protection to those who protest hunting. The fundamental question here is: How Highly does soci- * Assistant Professor, Capital University Law School; J.D. 1937, College of ,illiam and Mary, Williamsburg, VA. 1 Pub. L No. 103-322, 108 Stat. 2121 (codified as amended at 16 U.S.C. §§ 5201-5207 (1994)). 2 There are significant distinctions between those who advocate for animal rights and those who advocate for animal welfare. The term animal protection movement is intended to describe both of these efforts. 3 See Garner v. Louisiana, 368 U.S. 157 (1961); but see Brown v. Louisiana, 383 US. 131 (1966). [129]