NEXT SATURDAY the bow-and-arrow hunting season will open in Maryland. For some, the killing of deer and other animals with steel-tipped arrows is a sport, a great way to spend a crisp fall afternoon in one of the wildlife areas around the state. For others, hunting is cruel under any circumstances, but particularly when bow and arrow are used, since half the animals hit are not killed, but rather escape to die of wounds and infections over a number of weeks. Whether guns or bows and arrows are used, however, licensed hunting is legal in Maryland. Ironically, though, speech that interferes with hunting or scares away the animals is a crime; you can get arrested for quietly asking a hunter not to kill a deer.
Thirty-five states have these so-called "hunter harassment" laws, and Congress is considering legislation to cover activity on federal lands. In Connecticut four years ago, a woman was arrested on state forest property open to the public for talking to goose hunters and attempting to dissuade them from killing the waterfowl. She did not obstruct the hunters, verbally abuse them or touch them physically, she only spoke to them. When she challenged the law on First Amendment grounds, federal trial and appellate courts ruled that it was unconstitutional on its face. The laws in Maryland and other states, however, still stand, and last year two separate groups of animal-rights advocates were arrested and prosecuted in Montgomery County for talking politely to hunters and rustling leaves while they walked. One defendant, 28 year-old Heidi Prescott of Gaithersburg, refused on principle to pay her $500 fine and was handcuffed, strip-searched and sent to jail for 15 days. Protesters will be back on Saturday, and a new court test of the Maryland law is expected.
Speech -- peaceful discourse on public property that does not provoke riot or wake the populace -- is protected. The state cannot prohibit or even regulate it without a compelling reason, and, as the U.S. Court of Appeals for the Second Circuit ruled, there is no compelling state interest in protecting hunters from speech they'd rather not hear. The laws of dozens of states cannot withstand a challenge on constitutional grounds, and Congress should not compound their error by copying it.