concurring in part and dissenting in part:
I agree that section 2(c) of the Illinois Hunter Interference Prohibition Act (720 ILCS 12572(c) (West 1996)) is facially invalid under the first amendment to the United States Constitution (U.S. Const., amend. I). I write separately because I have come to that conclusion for somewhat different reasons from those advanced by the majority. In addition, I believe the majority is incorrect in upholding the remainder of the statute. In my view, the entire statute is constitutionally infirm and should be invalidated.
Hunter harassment statutes, such as Illinois’ Hunter Interference Prohibition Act, proliferated during the years between 1981 and 1996. Through efforts of the Sportsman’s Caucus and the Wildlife Legislative Fund of America, a prohunting lobby based in Washington, D.C., every state in the nation has enacted some version of the law. K. Hessler, Where Do We Draw the Line Between Harassment and Free Speech?: An Analysis of Hunter Harassment Law, 3 Animal L. 129, 161 n.21 (1997). Most of the state statutes are based on model legislation drafted by the Wildlife Legislative Fund. Comment, The Right to Arm Bears: Activists’ Protests Against Hunting, 45 U. Miami L. Rev. 1109, 1111 n.14 (1991).
The hunter harassment laws were enacted in response to a growth in antihunting protests by activists who regard hunting as cruel to animals, bad for the ecosystem, and morally wrong. 45 U. Miami L. Rev. at 1114-17. Historically, the protests have taken a variety of forms. These include walking along with hunters in the field and speaking to them about the violence and cruelty of hunting (see Dorman v. Satti, 862 F.2d 432, 434 (2d Cir. 1988)); standing in the hunters’ way and engaging in other conduct, such as screaming and waving, that causes them to miss opportunities to shoot their prey (see State v. Casey, 125 Idaho 856, 857, 876 P.2d 138, 139 (1994)); forming a semicircle around a hunter and refusing to move from the line of fire after verbal entreaties to him to desist fail (see State v. Ball, 226 Conn. 265, 268, 627 A.2d 892, 895 (1993)); staging demonstrations, with signs and chanting, at the entrances of wildlife refuges and other hunting sites; spreading deer repellant (see B. Roegge, Survival of the Fittest: Hunters or Activists? First Amendment Challenges to Hunter Harassment Laws, 72 U. Det. Mercy L. Rev. 437, 439 (1995); 45 U. Miami L. Rev. at 1115); and making loud noise with sirens or bullhorns in order to scare animals away from hunting areas (see Woodstock Hunt Club v. Hindi, 291 Ill. App. 3d 1051 (1997)).
The constitutionality of hunter harassment laws has been the subject of a substantial amount of litigation (see State v. Miner, 556 N.W.2d 578 (Minn. App. 1996); State v. Casey, 125 Idaho 856, 876 P.2d 138 (1994); State v. Lilburn, 265 Mont. 258, 875 P.2d 1036 (1994); State v. Ball, 226 Conn. 265, 627 A.2d 892 (1993); State v. Bagley, 164 Wis. 2d 255, 474 N.W.2d 761 (1991); Dorman v. Satti, 862 F.2d 432 (2d Cir. 1988); Opinion of the Justices, 128 N.H. 46, 509 A.2d 749 (1986)), and academic commentary (see K. Hessler, Where Do We Draw the Line Between Harassment and Free Speech? An Analysis of Hunter Harassment Law, 3 Animal L. 129 (1997); Comment, State v. Lilburn and State v. Casey: Harassing Hunters with the First Amendment, 32 Idaho L. Rev. 469 (1996); B. Roegge, Survival of the Fittest: Hunters or Activists? First Amendment Challenges to Hunter Harassment Laws, 72 U. Det. Mercy L. Rev. 437 (1995); J. Grafton, Hunter Harassment Statutes: Do They Shoot Holes into the First Amendment?, 96 W. Va. L. Rev. 191 (1993); Comment, State v. Ball: Connecticut’s Hunter Harassment Statute Under First Amendment Fire, 13 Bridgeport L. Rev. 783 (1993); Comment, Wyoming’s Hunt Interference Law — Anarchy in the Woods: How Far Afield Does the Right of Free Speech Extend?, 27 Land & Water L. Rev. 505 (1992); Comment, The Right to Arm Bears: Activists’ Protests Against Hunting, 45 U. Miami L. Rev. 1109 (1991); S. Wozniak, Validity & Construction of Statui °s Prohibiting Harassment of Hunters, Fishermen, or Trappers, 17 A.L.R.5th 837 (1994)).
Although the courts and commentators are not uniform in their analysis of the statutes, there is no serious dispute that these laws implicate rights protected by the first amendment to the United States Constitution. In undertaking their constitutional analysis of the Illinois statute, my colleagues focus on section 2(c)’s use of the term “dissuade.” This approach is apparently based on the dual assumptions that only section 2(c) embraces verbal communication, and that only verbal communication is subject to first amendment protection. Neither of these assumptions is valid.
Section 2(c) is not the only portion of the statute applicable to traditional speech. The remaining subsections apply to verbal conduct too. As the United States Court of Appeals for the Second Circuit recognized in Dorman v. Satti, 862 F.2d at 436-37:
“The Supreme Court has determined that statutory language prohibiting acts such as interference or harassment encompasses verbal as well as physical conduct. Houston v. Hill, 107 S. Ct. at 2511-12. Like the city ordinance struck down in Hill, the statute at issue here ‘deals not with core criminal conduct, but with speech.’ Id. at 2508. Consequently, the right of the government to prohibit such communicative expression is circumscribed by the first amendment. See Perry Educ. Ass’n v. Perry Local Educs. Ass’n, 460 U.S. 37, 45, 103 S. Ct. 948, 955, 74 L. Ed. 2d 794 (1983).”
In addition, first amendment protection is no longer limited to expressive speech. It extends to expressive conduct as well. See, e.g., Texas v. Johnson, 491 U.S. 397, 406, 105 L. Ed. 2d 342, 354, 109 S. Ct. 2533, 2540 (1989) (conduct can be sufficiently imbued with elements of communication to trigger first amendment protection). Accordingly, in analyzing the statute under the first amendment, we must be mindful of its relationship to what antihunting protestors do, not simply what they say.
In determining whether the Illinois version of the hunter harassment law passes muster under the first amendment, the threshold question we must resolve is whether it was aimed at what Professor Tribe has described as “communicative impact.” L. Tribe, American Constitutional Law 580 (1978). In other words, is the statute content-based? The principal inquiry in making that determination is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. Ward v. Rock Against Racism, 491 U.S. 781, 791, 105 L. Ed. 2d 661, 675, 109 S. Ct. 2746, 2754 (1989). The purpose or justification of regulation will often be evident on its face, but even a facially neutral regulation may be content-based if its manifest purpose is to regulate speech because of the message it conveys. Turner Broadcasting System v. Federal Communications Comm’n, 512 U.S. 622, 645, 129 L. Ed. 2d 497, 520, 114 S. Ct. 2445, 2461 (1994). Regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content are subject to the most exacting scrutiny. Turner, 512 U.S. at 640-41, 129 L. Ed. 2d at 517, 114 S. Ct. at 2458.
Proponents of the hunter harassment laws have argued that the laws are actually content-neutral and should be evaluated according to a less stringent level of review. They contend that the statutes are simply intended to permit hunters to hunt, as the law allows, and that the statutes do not single out any particular point of view for suppression. Although a few courts have accepted this argument (see, e.g., Woodstock Hunt Club v. Hindi, 291 Ill. App. 3d at 1054; Lilburn, 265 Mont. at 268, 875 P.2d at 1042-43), it is fundamentally unsound. In its origins and application, the statute “clearly is designed to protect hunters from conduct— whether verbal or otherwise — by those opposed to hunting.” Dorman, 862 F.2d at 437.
That the statute is intended to target an antihunting point of view is manifest in section 2(c)’s use of the word dissuade, as the majority points out. It is also apparent, however, in the remaining portions of the law. Although the other sections contain no explicit content-based limitation on the scope of prohibited conduct, the absence of such limitations will not save a statute from a first amendment challenge where it is nevertheless clear that the government’s asserted interest is related to the suppression of free expression and concerned with the content of such expression. United States v. Eichman, 496 U.S. 310, 315, 110 L. Ed. 2d 287, 294, 110 S. Ct. 2404, 2407-08 (1990). Such is the case here.
Under every section of the statute, not just section 2(c), culpability is limited to those whose intent is to prevent the taking of wild animals. While those in favor of hunting may very well disturb wild animals or their fellow sportsmen, it is difficult to envision a scenario where their aim is to prevent an animal from being taken. As a practical matter no one who favors recreational hunting is going to engage in conduct prohibited by the law. Correspondingly, no one in favor of recreational hunting is going to be found guilty of violating the statute. The law affects one group and one group only: those who are morally or philosophically opposed to capturing or killing animals. The proof is in the case law. The State has not cited and I have not found a single instance in any jurisdiction in which a hunter harassment law was enforced against anyone other than an antihunting protestor.
That the statute is specifically designed to silence those who oppose recreational hunting is further demonstrated by the liability provisions of the law. Those found guilty of violating the statute are not simply subject to criminal penalties. They also face the extraordinary prospect of having to pay civil damages, including punitive damages, to hunters whose efforts were thwarted by the protestor’s efforts. Among compensable items of recovery are expenditures for travel, guides and special equipment and supplies. 720 ILCS 125/4(b) (West 1996). These penalties serve no governmental interest of any kind. Their only function is to protect the personal, pecuniary interests of sportsmen and quell dissent by those who oppose the hunt.1
Because the Illinois statute is content-based, it can withstand first amendment scrutiny only if it “is necessary to serve a compelling state interest and *** is narrowly drawn to achieve that end.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 74 L. Ed. 2d 794, 804, 103 S. Ct. 948, 955 (1983). Accord Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, 502 U.S. 105, 118, 116 L. Ed. 2d 476, 488, 112 S. Ct. 501, 509 (1991). The majority is right to hold that section 2(c) does not meet this exacting standard, but it should have reached the same conclusion with respect to the remainder of the statute.
Sportsmen may be entitled to engage in lawful hunting, but they do not have the right to do so free from annoyance, harassment and confrontation. Hunting and the treatment of animals present important moral, social and political issues. For some, those issues are every bit as compelling as racial equality, gender discrimination, and abortion. Under the first amendment, we cannot circumscribe the debate on those questions any more than we can limit the debate on the rights of women and minorities or the state’s role in regulating reproduction. As in all of those areas, opposition to the protestors’ views may be strident, but
“ ‘ “[T]he fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.” ’ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988) (quoting FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978)). ‘ “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” ’ United States v. Eichman, 496 U.S. 310, 319 (1990) (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).” Simon & Schuster, 502 U.S. at 118, 116 L. Ed. 2d at 488, 112 S. Ct. at 509.
The state may worry that a hunter may be so antagonized by a protestor’s complaints that he may attempt to do bodily harm to that person. Such concerns are purely speculative and reflect a distrust for recreational hunters I do not share. There is no reason to assume that just because a hunter is willing to take game he might also be willing to shoot another human being. Even if the state’s concern had some demonstrable basis, however, our constitutional system requires that the efforts of the government be directed at protecting the protestor rather than silencing him, for “the duty of the police ordinarily must be to protect the speaker’s right of expression — whatever the reaction.” L. Tribe, American Constitutional Law 620 (1978).
In any event, concerns about violence during the course of a hunt cannot justify the expansiveness of the prohibition imposed by the Illinois statute. In contrast to the version of the statute at issue in Lilburn, 265 Mont. at 266-67, 875 P.2d at 1041, the Illinois law does not limit its proscriptions to activities which occur in the field during an otherwise lawful hunt. It prohibits interference even when the hunter is merely traveling, camping, or engaged in “other acts preparatory to the taking” of an animal. 720 ILCS 125/l(b), 125/2 (West 1996). So broadly drafted is the statute that even a proponent of hunter harassment laws has acknowledged the Illinois version to be constitutionally infirm. See 72 U. Det. Mercy L. Rev. at 446 n.58.
For the foregoing reasons, I would affirm the judgment of the circuit court, but declare section 2 of the Illinois Hunter Interference Prohibition Act to be unconstitutional in its entirety. In addition, I would overrule the appellate court’s opinion in Woodstock Hunt Club v. Hindi upholding the statute’s constitutionality.
Although the majority had no occasion to address this feature of the statute, it is important to observe that it is flatly unconstitutional. States may not impose damage awards to punish those who engage in protests protected by the first amendment. See National Ass’n for the Advancement of Colored People v. Claiborne Hardware Co., 458 U.S. 886, 918, 933-34, 73 L. Ed. 2d 1215, 1240, 1249, 102 S. Ct. 3409, 3428, 3436 (1982).
An equally objectionable feature of the statute is that it would authorize a court to enjoin an antihunting protest in advance upon application of any person who “reasonably may be affected by such conduct” where that person can show “that such conduct is threatened” or that it has occurred in the past “and that it is not unreasonable to expect that under similar circumstances it will be repeated.” 720 ILCS 125/4(a) (West 1996). This is a classic prior restraint (see Alexander v. United States, 509 U.S. 544, 550, 125 L. Ed. 2d 441, 450, 113 S. Ct. 2766, 2771 (1993)) and is presumptively invalid under cases such as Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 29 L. Ed. 2d 1, 5, 91 S. Ct. 1575, 1578 (1971).