*1 3, 1975, Argued remanded June December reversed and OREGON, Respondent, STATE OF
v. BROOKS, MARIE Petitioner. CHRISTEIN (C74-05-1335 Cr) OREGON, Respondent, STATE OF
v. BROOKS, Petitioner. CHRISTEIN MARIE Cr) (C 74-03-0930 OREGON, Respondent, STATE OF
v. SHANNON, MURIEL Petitioner. DIANE (C Cr) 74-08-2469 OREGON, Respondent, STATE OF
v. SHANNON, MURIEL Petitioner. DIANE (C Cr) 74-11-3620 OREGON, STATE OF Respondent,
v. WHITE, L. PEGGY Petitioner. (C Cr) 74-06-1918 OREGON, STATE OF Respondent,
v. GANT, RENEE MARIE Petitioner. (C Cr) 74-05-1580 OREGON, Respondent, STATE OF
v. CHRISTENSEN, Petitioner. CHERI LYNN (C Cr) 74-07-2277 OREGON, Respondent, STATE OF
v. CHRISTENSEN, Petitioner. CHERI LYNN Cr) (C 74-07-2278 OREGON, Respondent, STATE OF
v. ASHER, Petitioner. LINDA KAREN Cr) (C 74-06-1981 *2 OREGON, Respondent, STATE OF
v. ROGERS, Petitioner. JUANITA Cr) (C 74-04-1054 OREGON, Respondent, STATE OF
v. ROGERS, Petitioner. JUANITA Cr) (C 74-06-1983 OREGON, Respondent, OF STATE
v.
ROGERS, Petitioner.
JUANITA
Cr)
(C 74-08-2470
Donald L. General, Assistant Attorney Salem, argued the cause for With him respondent. on Johnson, the brief were General, Lee Attorney and W. Gillette, Michael Solicitor General. j.
McAllister, *4 j.
McAllister, The seven defendants each convicted of were indecency in violation of 163.465. The convictions were affirmed the Court of Or 30. by Appeals. App granted We review.
ORS 163.465 reads in pertinent part as follows: "(1) person A public indecency commits the crime of in, of, if while or in view public place a he performs:
‡ ‡ ‡ ‡ ‡ "(c) An exposing act of genitals his with the intent of arousing the sexual desire of himself or person.” another It stipulated at trial that each of the defen- dants did knowingly her expose genitals with the intent of arousing the sexual desire of another while dancing on the stage of the Old Chelsea Theatre in Portland. It was necessary for any individual a pay fee of gain to$5 admission to the theater and no one could see the performance except portion from the the theater where the patrons were seated. The Old Chelsea Theatre did not allow anyone under the age of 18 years to enter the premises and advertised fact and further indicated type entertainment offered and warned that those who would be offended by nudity should not enter.
Defendants challenge their conviction on two grounds. They first contend that they did not violate ORS 163.465 because the theater they per- formed was not a public place as defined 161.015(9). They also contend that ORS 163.465 is unconstitutional because does require finding of obscenity as a prerequisite to proscribing constitu- tionally protected expression.
The term public place 161.015(9), is defined in ORS as follows: " place’ 'Public means a general to which the includes, to, has access but is not limited hall- ways, lobbies and other parts apartment houses
hotels not constituting apartments rooms designed or for *5 places highways, residence, streets, schools, and
actual parks, playgrounds premises amusement, in used of and public transportation.” passenger connectionwith indecency public 163.465, statute, was ORS part Oregon passed of 1971 as a of the Criminal Code replace apparently intended the former sta- and was to usually exposure, proscribing indecent which was tute committed places public free to the had access. Oregon part 167.060, a the which was also of obscenity and 1971, deals with
Criminal Code performance an obscene related offenses describes play, picture, show, dance, other or to mean "a motion * * * performed presentation before an audience » * * * 161.015(9) part of as a was also enacted
Since ORS Oregon that of 1971 it seems clear Criminal Code the legislature a the definition of pub- if the had intended performed performance an obscene to include lic in ORS have indicated an audience would so before 161.015(9). legislature public place Instead, a to defined places include where the at will. The enter 161.015(9) "places is used term of amusement” in ORS conjunction "play "parks” with the terms grounds” to include and we think was intended plays, pictures, shows, dances, theaters where motion "performed presentations before an or other audience.” intentionally could be legislature apparent It seems "public place” differentiated between is and theaters and like where entertainment "performed before an audience.”1 408, Conrad, People 70 Misc2d was reached in v. 1A similar conclusion 180, 183, 334 NYS2d where court said: "* * * scope application, reason- it cannot be the exact Whatever performances ably apply a build- argued this inside section is anyone here, of said ing outside be observed which cannot as building.” indecency statute particular interest because our This case is turn, statute, which, on the copied was based Connecticut was from the indecency. proscribing New York statute [ 176 ] In revising Oregon obscenity laws regulating of the Criminal Code part legislature defined "obscene make performance,” but chose to performances exhibition of such when it only a crime 167.060(6); to minors. ORS 167.075. The displayed official Criminal Law Revision Commission Commen- tary to the Proposed Oregon Code Criminal outlined the purpose of new obscenity law as follows: [now "Sections 256 to 259 167.080] 167.065 to
comprise obscenity the heart of the article which is prohibiting aimed at *6 the dissemination of obscene mate- young. rials to the
"* * * The draft points: focuses on two the dissemina- types minors, tion of certain of public materials to and displays of attempt certain materials. is made No to con- any trol or limit activity other adult in this area.” added.) (Emphasis Commentary at 248. The public displays referred to were the dis- plays nudity of or sex for advertising purposes, codified in ORS 167.090. Commentary The to that sec- tion stated:
"This section attacks problem public displays the of may materials persons offend unwillingly who are * * *” added.) subjected to them. (Emphasis Commen- tary at 253. In 1973 the legislature expand chose to the obscen- ity by enacting laws ORS 167.062 which proscribed sadomasochistic abuse or sexual in live public conduct and shows ORS 167.087 which the dissemi- proscribed nation of obscene material to These laws were adults. referred by to the people petition referendum for a vote in the November 1974 and went general election 5, into effect on December 1974.
It appears from the stipulated facts that the nude dancing by the defendants on 1974 would be April encompassed by the perform definition of "obscene ance” but obscenity was not prohibited under laws in effect at that time as not for minors or performed displayed advertising for It purposes. stipulated the defendants touched faces
that on occasion facts with their bare These various breasts. patrons 5, performance indicate that after December in a live proscribed have been sexual conduct would under ORS 167.062. public show sta- It to as a interpret is reasonable ORS 163.465 from unwanted designed protect tute to A are displays. patrons theater where shocking limited is those viewing patrons forewarned to definition of a satisfy statutory does not Theatre the Old Chelsea performance place. willing prohibited to was not was limited viewers and 163.465, prohibited be by although now under 167.062. with is Appeals
The case remanded the Court of court. to reverse the of the trial judgment instructions BRYSON, J., dissenting. legislature, this
There is one issue in case. Did enter- by enactments, its aduit intend Portland, tainment, Old be such as Chelsea Theatre consisting offer live entertainment of nude allowed to the purpose women their for dancing exposing genitals facts sexually arousing posed its customers? The stipulated are both question parties. *7 violating ORS The defendants were convicted of 163.465, which provides:
"(1) indecency public of person A commits crime in, of, public performs: he place if while or view a "(a) intercourse; An act of sexual or "(b) intercourse; or An act of deviate sexual "(c) of the intent exposing genitals An act his with of himself or another
arousing sexual desire of person. "(2) indecency A is a misdemeanor.” Public Class theater, which such argue The defendants who are age of years persons over only admits at entering $5 before performance of type of aware place. head, is not a per ]178 161.015(9) ORS provides: "(9) place’ 'Public general means a which the to includes, to, has access and but is not limited hall- ways, parts lobbies and other apartment of houses and constituting designed hotels not rooms apartments or for residence, schools, highways, streets, actual and amusement, parks, playgrounds of premises and used in connection with passenger transportation.” added.) (Emphasis 161.015(9) ORS 163.465 and were enacted as both part Oregon of Criminal Code of 1971. Assuming, while not conceding, the above definition of "public place” is ambiguous, we turn to the intent of the legislature the lan- construing guage of the statute. The Minutes of the Criminal Law Commission, Revision Subcommittee No. October 22, 1969, show:
"Representative Carson provisions assumed the of the section apply would not something to Bullfrog like Four or Woodstock because neither would be classed a 'public place’. Mr. Wallingford they thought apply would in that these festivals would be 'public place’ classed a general public because the has access. It would be the same as a theatre. Senator Jemstedt commented that the adoption the section apparently would eliminate the appearance certain types plays state. (1) (2) Wallingford "Mr. did think subsections (a) [paragraphs (b), (1), 163.465] subsection plays, avant-garde apply because even in the most would (3) (c), [paragraph the acts are simulated. Subsection only the act (1), apply 163.465] would Subsection if sexually the audience.” arouse was done with the desire to added.) (Emphasis Thus, it is clear from the legislative history that members of the legislature intended that "public place” would include a so-called theater a public place.
The majority opinion points out that neces- "[i]t was sary any for individual pay a fee gain admis- $5 sion to the theater” and that "patrons are
[ ] 179 the the as point This seems to be beside forewarned.” gen- as where "the one "public place” statute defines has The fact that admission eral access.” charge of admis- consequence. of little The charged is Also, one be at 10 cents. could placed sion could be would pre- an unlawful act but this forewarned of being it to the public. vent from accessible facts, it of the stipulation the defendants’ Based on the crime of they that are each guilty would appear 163.465(c) com- by in indecency defined the general the acts in "a to which mitting said has access.” the that stipulated defendants also contend is a form of communication dancing nude type and, there- by is the First Amendment which protected fore, not be without "dancing may restricted such Supreme The United States finding that is obscene.” types some position reiterated its that Court has First of the dancing protection nude are within where regulated but be Amendment See Amendment. Twenty-first under the alcohol is sold 390, EdL Rue, 109, US 93 S Ct 34 v. La 409 California (1972), which 2d 342 states: " an apparently that accept cannot variety view 'We "speech” can labeled of conduct be limitless conduct intends person engaging in the whenever 376, 2d US, 20 L Ed 391 at thereby express an idea.’ at 672.” 409 US 117-18. 922, Inn, Inc.,
In v. Salem 422 US 95 S Ct Doran (1975), 2d Supreme 45 Led Court of an granting injunction affirmed the lower court’s non- against authorities would have restricted dancing. obscene the form of No topless conduct stipulated court the acts yet pronounced has within they are would be case "non-obscene” contrary 167.062, the 1973 adopted by legisla- to ORS election general ture and the voters at approved in November of 1974. type conduct
I the view accept cannot anything performed free in this case has to do with *9 speech. dancing express an idea to the view- only obscenity. say ers but could be one of To imagination. the Old Chelsea is a theater stretches the It might be "amusement” to some. For the I the Court of above reasons would affirm Appeals, upheld of the defen- conviction dants in the lower court.
[