422 P.3d 341
Or. Ct. App.2018Background
- Defendant used an amplified bullhorn to preach outside a Fred Meyer store; officers had previously warned him to stop using the bullhorn but not the content of his speech.
- Neighbors across a highway (hotel, restaurant, gas station) and store employees repeatedly complained that the amplified speech was loud, persistent, and disruptive; few could understand the words at distance.
- Officers told defendant he could speak but not at that volume; after he refused to surrender the bullhorn they arrested him and charged him under ORS 166.025(1)(b) for recklessly creating a risk of public inconvenience, annoyance, or alarm by making unreasonable noise.
- At trial the court denied defendant’s motion for judgment of acquittal, found he was prosecuted for noise (volume/duration) not speech content, and convicted him of second-degree disorderly conduct.
- On appeal defendant argued ORS 166.025(1)(b) is unconstitutional as applied under Article I, §8 of the Oregon Constitution and the First Amendment, and also raised a vagueness claim; the court declined the vagueness claim as unpreserved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 166.025(1)(b) as applied violated Article I, §8 (Oregon) | State: statute applied neutrally to noncommunicative elements (volume, duration) and thus is constitutional | Pucket: application targeted expressive conduct/content and thus violated free expression | Affirmed: application was content-neutral (time/place/manner); prosecution based on noncommunicative noise, not message |
| Whether ORS 166.025(1)(b) as applied violated the First Amendment | State: satisfies time/place/manner test (content-neutral, narrowly tailored, ample alternatives) | Pucket: amplified preaching is protected expression; statute improperly restricted content | Affirmed: content-neutral restriction passes Ward time/place/manner analysis |
| Whether Marker requires a different/stricter First Amendment standard | State: later cases (Robertson, Rich) control; Marker addressed only First Amendment and predates those decisions | Pucket: relies on Marker to argue broader First Amendment protection against noisy expressive conduct | Rejected: Marker is not controlling here and does not conflict materially with Robertson/Rich framework |
| Vagueness of "unreasonable noise" in ORS 166.025(1)(b) | State: claim not preserved for appeal | Pucket: statute is unconstitutionally vague | Court: decline to address; not preserved |
Key Cases Cited
- State v. Robertson, 293 Or. 402 (framework distinguishing content-based laws and laws focused on forbidden results under Article I, §8)
- State v. Rich, 218 Or. App. 642 (construing "unreasonable noise" as addressing noncommunicative elements—volume/duration—placing statute in Robertson category three)
- State v. Babson, 355 Or. 383 (application test under Robertson: whether enforcement targeted content, advanced legitimate interests, and left alternatives)
- Ward v. Rock Against Racism, 491 U.S. 781 (time, place, manner test for First Amendment)
- State v. Marker, 21 Or. App. 671 (earlier First Amendment analysis on overbreadth of "disturbing the peace" statutes)