State v. Babson, 326 P.3d 559

Darr and co-defendants protested deployment on the capitol steps; they were cited for second-degree criminal trespass after remaining on the steps past 11:00 p.m. under a 7:00 a.m.–11:00 p.m. LAC overnight-use guideline.
LAC had historically allowed overnight use via the Legislative Administrator, then amended in January 2009 to prohibit overnight use entirely, removing discretion to authorize overnight occupancy.
The February 2009 citations followed the amendment; trial court convicted defendants of trespass; Court of Appeals upheld facial validity under state constitutions but remanded for as-applied testing via questioning of LAC leadership about enforcement.
Appeals court allowed questioning of two LAC co-chairs about enforcement, and the state argued the Debate Clause barred such questioning; the case returns to trial court for as-applied analysis.
The issue centers on whether enforcement of a neutral, time/place/manner rule was directed at defendants’ expression or merely enforced as a nonexpressive trespass violation.
The Oregon Supreme Court affirms the Court of Appeals on facial validity but remands for testimony from the LAC co-chairs to determine if enforcement was content-neutral and reasonable, affecting the as-applied challenge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Face validity under Article I, §8	Babson argues guideline targets speech via its overnight restriction.	Guideline is directed at harmful effects, not speech and is not overbroad.	Guideline facially valid under §8.
Face validity under Article I, §26	Guideline restricts assembly and related rights on capitol steps.	Remains assembly-neutral and not directed at protected rights.	Guideline facially valid under §26.
As-applied challenge and enforcement versus expression	Enforcement targeted defendants’ expressive activity; testimony from LAC leaders would show suppression.	Enforcement was based on trespass, not expression; testimony should be limited by Debate Clause.	Remand for testimony from LAC co-chairs; trial court must assess if enforcement was neutral or targeted expression.
First Amendment applicability	Guideline burdens protected speech and assembly.	State constitutional analysis suffices; federal claim premature pending state-law resolution.	Not reached; state-law analysis governs first.

Robertson, 293 Or 402 (1982) ( Robertson framework for Article I, §8 analysis (three categories).)
Stoneman, 323 Or 536 (1996) (context/legislative history may illuminate Robertson category decisions.)
Moyle, 299 Or 691 (1985) (statutory wording that mirrors speech cannot evade speech-protection analysis.)
Illig-Renn, 341 Or 228 (2006) ( facial challenge limits and application of Robertson categories; speech-neutral statutes.)
Outdoor Media Dimensions v. Dept. of Transportation, 340 Or 275 (2006) (time/place/manner restrictions; three-factor test for reasonableness and alternatives.)
Tidyman, 306 Or 174 (1988) (time/place restrictions may be permissible if not aimed at speech as such.)
Purcell, 306 Or 547 (1988) (limits on solicitation; demonstrates limits of content-neutral regulation.)
Miller, 318 Or 480 (1994) (as-applied analysis; content-neutral regulation may burden protected speech.)
Ausmus, 336 Or 493 (2004) (assembly conduct protected unless law is targeted and neutral in application.)
Coffin v. Coffin, 4 Mass 1 (1808) (Speech or Debate Clause breadth and protection of legislative function.)