State v. Smith, 319 Or. App. 388

Defendant lived across from an apartment whose residents were predominantly LGBTQ+ and some had AIDS; over months he used homophobic slurs toward them.
On the day in question, after being ignored, defendant threatened to kill the residents and to blow up their building while using homophobic epithets.
State charged defendant under ORS 166.155(1)(c)(A) (2017), which makes it a crime to intentionally, because of a person’s perceived protected characteristic, subject that person to alarm by threatening serious physical injury or to commit a felony against them.
Defendant demurred, arguing ORS 166.155(1)(c)(A) is facially unconstitutional under Article I, §8 of the Oregon Constitution and the First Amendment.
Trial court denied the demurrer; defendant pleaded no contest while reserving the right to appeal the constitutional ruling.
Court of Appeals affirmed the denial of the demurrer and defendant’s conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ORS 166.155(1)(c)(A) is overbroad under Article I, §8 (Robertson framework)	The statute targets forbidden effects (alarm from threats) and can be reasonably construed to reach only proscribable threats (imminent, unequivocal, objectively serious threats with specific intent).	The statute is facially overbroad and chills protected expression because it can criminalize non‑threatening or non‑imminent speech.	Statute is a Robertson category‑two law but not overbroad when narrowly construed (alarm = actual fear of imminent serious personal violence; threats must be unequivocal and intentionally made). Demurrer denial affirmed.
Whether ORS 166.155(1)(c)(A) is an impermissible content‑based restriction under the First Amendment	The statute punishes unprotected threats and thus is not a content‑based prohibition of ideas; it targets violent threats motivated by bias, not mere expression of bias.	Because the statute requires bias motivation, it unlawfully discriminates on the basis of content/ viewpoint (impermissible under R.A.V.).	Statute is not a content‑based First Amendment violation: it criminalizes threats (unprotected speech) motivated by bias, not the expression of bias itself; demurrer denial affirmed.

State v. Robertson, 293 Or 402 (establishes Article I, §8 analytical framework and categories)
State v. Moyle, 299 Or 691 (narrowly construed "alarm" to mean actual fear of imminent personal violence)
State v. Rangel, 328 Or 294 (applied Moyle narrowing to stalking statute)
State v. Johnson, 345 Or 190 (harassment provision facially invalid for lacking imminency requirement)
State v. Babson, 355 Or 383 (discusses Robertson categories and analysis)
R.A.V. v. City of St. Paul, 505 U.S. 377 (struck bias‑motivated ordinance as impermissible content‑based regulation)
Iancu v. Brunetti, 139 S. Ct. 2294 (principle that government cannot disfavor speech based on ideas/opinions)