Charleston, South Carolina. -- Too bad. The Supreme Court last month decided not to review Lilburn v. Montana, and that's a pity. The case offered a great opportunity for the high court further to define the difference between protected speech and unlawful conduct.
John Lilburn is an animal lover. More to the point of this case, he is a bison lover. Montana ranchers are not bison lovers. They complain that the buffalo wander into Montana from their sanctuary in Yellowstone National Park, and some of them bring the disease brucellosis with them.
To cope with the situation, the Montana legislature in 1987 adopted "an Act to Prohibit Harassment of Hunters and Trappers." The law makes it a misdemeanor for any person "to disturb an individual engaged in the lawful taking of an animal with the intent to dissuade the individual or otherwise prevent the taking of the animal."
Apart from the brucellosis threat, the state legislature had another justification for the harassment act. When animal lovers take to the woods with bullhorns and boom boxes, the better to scare game to cover, accidents can happen. The act is intended to keep potential conflict from turning into bloodshed.
Early in 1990, a small herd of bison left Yellowstone and ambled or stampeded -- whatever buffalo do -- over the line into Montana. The State Department of Fish, Wildlife and Parks authorized a bison hunt for March 13. Word went out, and Mr. Lilburn and a dozen other protesters went to the Gallatin National Forest south of Bozeman. The objectors felt morally bound to break up the hunters' sport by spooking the bison back to Wyoming. They tried, but failed.
The state's brief in the Supreme Court describes what happened next:
"Petitioner Lilburn then attempted to prevent one of the licensed hunters, Hal Slemmer, from making a shot. As Slemmer sighted in on a bison through the scope of his hunting rifle, he saw petitioner's head and torso suddenly appear in his scope. Petitioner had taken up a position directly between Slemmer and his target. Slemmer did not fire and raised the barrel of his rifle.
"A nearby game warden confronted petitioner, and Slemmer selected another target animal and prepared to make his shot. As Slemmer began to squeeze the trigger of his rifle, he again saw petitioner's head and torso suddenly appear in the scope.
"Slemmer jerked his rifle skyward to avoid shooting petitioner, who had again assumed a position directly between Slemmer and his target, roughly 10 to 12 feet from the muzzle of Slemmer's rifle."
At this point the accounts differ. Mr. Lilburn says that he cried, "Don't shoot!" as Mr. Slemmer took aim. Game warden Dave Etzwiler, an eyewitness, denied that Mr. Lilburn said anything at all. In any event, a jury found Mr. Lilburn guilty of violating the harassment act and the judge gave him 10 days in jail.
On intermediate appeal, the Gallatin County District Court reversed, holding that the statute violated Mr. Lilburn's right of free speech. Then Montana's Supreme Court reversed the district court, and found no constitutional problem with the law. As of a few days ago, Lilburn was still free on bond.
Forty-eight states and the U.S. Congress have adopted hunter-harassment laws. The federal statute, a part of last year's omnibus crime bill, makes it unlawful "intentionally to engage in any physical conduct that significantly hinders a lawful hunt." Anticipating a challenge, Congress added a section saying that the term "conduct" does not include free speech protected by the First Amendment.
It is immaterial if Mr. Lilburn actually spoke the words, "Don't shoot!" Supreme Court decisions make it clear that freedom of speech embraces all kinds of wordless expression. In the abortion-clinic cases, courts have sanctioned silent prayer on a sidewalk. A famous case involved students who wore black armbands to protest the war in Vietnam. Flag-burning offers another example.
Where do you draw a line? Suppose Mr. Lilburn had attempted simply to engage Mr. Slemmer in conversation: "Please, sir, don't kill that defenseless bison." Mr. Slemmer doubtless would have been annoyed, but the First Amendment protects speech that "disturbs" us. It does not protect conduct that prevents an abortion clinic -- or a Montana hunter -- from engaging in lawful pursuits.
I believe the harassment laws are constitutional. Anyone who stands 10 feet in front of a loaded and aimed .30-06 is not just flapping his gums. That's conduct, son, and dangerous conduct at that.
James J. Kilpatrick is a syndicated columnist.