2016 Ore. App. LEXIS 894
Deschutes Cty. Cir. Ct., O.R.2016Background
- Defendant posted on Craigslist offering $20 for someone to bring an unfilled official ballot, let him fill it out, then sign and return it; he admitted it was internet "trolling" and intended it as satire, and no one responded.
- State charged him under ORS 260.715(9) for "offer[ing] to purchase, for money or other valuable consideration, any official ballot."
- At trial the court accepted an objective definition of "offer" (no requirement of subjective intent to complete transaction) and rejected defendant's demurrer contesting the statute's facial constitutionality under Article I, §8 of the Oregon Constitution.
- Trial court convicted defendant after denying his motion for judgment of acquittal; he was placed on bench probation and appealed.
- The Court of Appeals held (1) defendant’s posting objectively constituted an "offer to purchase" a ballot, and (2) the statutory ban on making such an offer is facially unconstitutional under Article I, §8 because it criminalizes content-based speech that is not within a well-established historical exception.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Does the Craigslist post constitute an "offer to purchase" under ORS 260.715(9)? | The post objectively proposed to buy a ballot; "offer" means a communication that would reasonably be understood as a proposal to buy. | The post was satirical/trolling; "offer" should require subjective intent to complete the purchase. | Held: Yes — an "offer" is judged objectively; the post qualified as an offer to purchase. |
| 2. Does "purchase" require permanent acquisition (ownership) or can it include temporary acquisition/use? | The statute’s plain meaning of "purchase" includes acquiring an object; the post sought acquisition even if temporary. | "Purchase" should be read to require transfer of ownership, so the post was only an offer to use a ballot, not to purchase it. | Held: Court need not decide full scope; sufficient evidence supported finding of a purchase (temporary acquisition suffices). |
| 3. Does "offer" require proof of subjective intent to follow through? | State: No — "offer" is an objective communication; no intent element is required. | Defendant: Yes — statute should be read to require intent to complete the transaction; otherwise it criminalizes mere speech. | Held: "Offer" is objective; no subjective intent element is required. |
| 4. Is the statute (prohibiting offers to purchase ballots) facially constitutional under Article I, §8? | State: The statute targets harmful effects on elections (appearance of fraud) and fits within historical exceptions like solicitation/assistance in crime or permissible election regulation. | Defendant: The statute is content-based regulation of speech and not confined to a historical exception, so it is facially unconstitutional. | Held: The statute is content-based and not within a well-established historical exception (solicitation requires intent); the provision is facially unconstitutional and demurrer should have been granted. |
Key Cases Cited
- State v. Briney, 345 Or 505 (gives undefined common-usage terms their plain meaning)
- State v. Robertson, 293 Or 402 (framework for analyzing speech restrictions under Article I, §8)
- State v. Moyer, 348 Or 220 (statute criminalizing certain false campaign communications treated as content-based under Robertson)
- Vannatta v. Oregon Government Ethics Comm., 347 Or 449 (laws prohibiting certain offers of gifts to officials are content-based and implicate Article I, §8)
- State v. Babson, 355 Or 383 (discussion of Robertson categories and speech analysis)