State v. ChakerianState v. Chakerian
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The state appeals, seeking reversal of orders that allowed defendants’ demurrers to charges of riot. The trial court concluded that the statute underlying those charges,
Defendants were charged, in a single indictment, with violating the anti-rioting statute,
The state appeals those orders,
“(1) A person commits the crime of riot if while participating with five or more other persons the person engages in tumultuous and violent conduct and therebyintentionally or recklessly creates a grave risk of causing public alarm.
“(2) Riot is a Class C felony.”
In reviewing the trial court’s determination that that statute is unconstitutionally overbroad, we employ the analysis described in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). In City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994), the court summarized Robertson’s taxonomy of three types of statutes implicating expression:
“The first Robertson category consists of laws that ‘focus on the content of speech or writing’ or are ’ ’’written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication.” ’ Laws within that category violate Article I, section 8, ‘unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.’ The second Robertson category consists of laws that ‘focus[] on forbidden effects, but expressly prohibit[] expression used to achieve those effects. ’ Laws in that category ‘are analyzed for overbreadth.’ Finally, the third Robertson category consists of laws that ‘focus[] on forbidden effects, but without referring to expression at all.’ Laws within the third category are analyzed to determine whether they violate Article I, section 8, as applied.” Id. at 488 (citations omitted; emphasis in original).
The trial court held that
Rather, like the statutes at issue in
State v. Moyle,
299 Or 691, 705 P2d 740 (1985), and
State v. Garcias,
296 Or 688, 679 P2d 1354 (1984),
“The concern of the menacing statute appears to center on preventing harm to the victim in the form of tension, alarm and whatever injury may result from the confrontation. * * * The fact that the harm may be brought about by use of words, even by words unaccompanied by a physical act, does not alter the focus of the statute, which remains directed against attempts to cause an identified harm, rather than prohibiting the use of words as such.” 296 Or at 697.
Similarly, in
Moyle,
the Supreme Court characterized the harassment statute,
“By its terms, the statute does not punish one who conveys a telephonic or written threat unless the threat has the effect of alarming the addressee, and such alarm must be reasonable in the circumstances. Harm to another, in the form of alarm, is the focus of the statute. Speech and writing are merely the means, albeit the only prohibited means, of achieving the forbidden effect — actual and reasonable alarm.” Moyle, 299 Or at 699.
Like those statutes,
The inquiry reduces, then, to whether
The distinction between laws in the second and third Robertson categories is somewhat uncertain. That uncertainty has its roots in Robertson itself. Two oft-quoted portions of the Robertson opinion, which explain how effects-driven statutes should be analyzed, contribute to that uncertainty. First:
“When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth.’ ” Robertson, 293 Or at 417-18.
But compare:
“If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.” Id. at 417.
The first quoted section might be read as stating that if a statute can be violated by a variety of means, and some of those means include expression, the statute is analyzed for overbreadth. Conversely, the second quotation suggests that if a statute can be violated by a variety of means, some of which involve expression, overbreadth is inapposite and a defendant is limited to challenging a statute’s vagueness and its constitutionality on an as applied basis.
Uncertainty concerning the content of Robertson’s second and third categories is exacerbated by the fact that, to the extent we can determine, neither we nor the Supreme Court have ever explicitly assigned a statute to Robertson’s third category. Conversely, there appears to be no reported instance in which an effects-driven statute has been subjected to overbreadth analysis merely because the proscribed means might, but need not, involve expression. Finally, it appears that, in every case in which a statute has been assigned to Robertson’s second category, the.statute has explicitly mentioned speech or some other form of communicative conduct.
Thus, post-Robertson cases have not explicitly acknowledged, much less resolved, the ostensible tension in Robertson’s description of statutes susceptible to over-breadth challenges. However, in State v. Plowman, 314 Or 157, 838 P2d 558 (1992), the Supreme Court described Robertson’s second category as “focus[ing] on forbidden effects, but expressly prohibiting] expression used to achieve those effects.” Id. at 164 (emphasis supplied). The court further described Robertson’s third category as “focusing] on forbidden effects, but without referring to expression at all.” Id. (emphasis supplied). Since Plowman, the Supreme Court and this court have consistently invoked those phrases as shorthand definitions of Robertson’s second and third categories. See, e.g., Miller, 318 Or at 488; State v. Stoneman, 132 Or 137, 140, 888 P2d 39 (1994).
Although a requirement that a statute “expressly prohibit[] expression” might provide a useful “bright-line” distinction between Robertson’s second and third categories, its content and implications bear examination. In particular, what does it mean that a statute “expressly prohibits expression”?
We perceive in
Robertson’s
progeny two classes of statutes that fall within the second
Robertson
category. The first includes statutes that explicitly identify communicative conduct as a proscribed means of achieving a forbidden effect. The statutes at issue in
Moyle
(
The second class of statutes is less obvious. It includes statutes that, although they do not explicitly refer to communicative conduct, can be violated only by means of expression. In other words, regardless of the statute’s particular language, a person cannot violate the statute without engaging in communicative conduct. That class acknowledges the dictates of substance over form. Regardless of the precision — or, perhaps, the studied imprecision — of statutory language, when expression is the only possible means of violating the statute, the statute, necessarily, expressly proscribes expression. 3
We turn again to
“[T]he statute on its face requires tumultuous and violent conduct. Not one of those statutes that — says just speech or even says by word or deed. There, within its language, looks to be directed at acts.”
Instead, the trial court’s overbreadth holding seems to rest on its belief that the statute can only be violated by means of expression:
“Then when you look at the definition and the commentary about what that means, going back to where we were this morning, that it has to be threatening, which under these other cases threats are necessarily expressive, either speech or expressive conduct. That is part of the analysis they go through in the coercion statute. You can’t threaten somebody without communicating that something bad is going to hap pen.” (Emphasis supplied.)
Thus, the court’s conclusion flowed from its reference to the Criminal Law Commission’s commentary to the Oregon Criminal Code, and its interpretation of that commentary as limiting the prohibited conduct to communicative conduct.
The commentary to which the trial court referred reads:
“The term ‘tumultuous and violent conduct’ is intended to represent more than mere loud noise or disturbance. The language is designed to imply terroristic mob behavior involving ominous threats of personal injury and property damage.” Proposed Oregon Criminal Code 212, Commentary § 218 (1970).
We assume, without deciding, that the trial court’s resort to the commentary was appropriate under the principles of statutory construction expressed in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). Nonetheless, we conclude that the court’s interpretation of that commentary, as limiting the proscribed conduct to expressive conduct, was incorrect. That interpretation flowed from the erroneous assumption that “threats are necessarily expressive.” Although the term “threat” can describe an expressive act, it also describes a much wider range of referents, which serve as “an indication of something impending and usually undesirable or unpleasant.” Webster’s Third New International Dictionary 2382 (unabridged 1976). In the particular context of the statute at issue here, human beings can produce “threats” of personal injury or property damage by engaging in entirely nonexpressive behaviors — e.g., overturning cars, throwing Molotov cocktails, and breaking storefront windows. Thus, we reject the trial court’s apparent conclusion that the statute can be violated only by means of expression. 4
Defendants argue that their demurrers should, nonetheless, be sustained on the alternative ground that the phrase “grave risk of public alarm” in
A statute is unconstitutionally vague if it fails “to inform those who are subject to it of what conduct on their part will render them liable to its penalties.”
State v. Graves,
299 Or 189, 195, 700 P2d 244 (1985). In
Goodwill,
the
defendants asserted, in general terms, that
Goodwill is, however, no longer persuasive. In State v. Norris-Romine/Finley, 134 Or App 204, 894 P2d 1221 (1995), we disapproved Goodwill’s gambit of resorting to extrinsic materials to render otherwise arguably vague language constitutionally precise:
“Although a statute challenged for vagueness may sometimes be ‘saved by a judicial interpretation that gives it required definiteness,’ the statute itself must speak its meaning to the ordinary person. We cannot rely on the legislative history to provide a meaning that is not apparent from a reading of the statute in its context. A term that has no meaning to the ordinary person without reference to the legislative history cannot withstand a vagueness challenge.” Id. at 210 (citations omitted). 6
Our inquiry, then, is straightforward: Is the term “grave risk of public alarm,” as used in
Statutes that describe prohibited effects in terms similar to those employed in
“[W]e interpret the term ‘alarm’ to mean the dictionary definition: ‘fear or terror resulting from a sudden sense of danger.’ ‘Fear or terror’ are words of common understanding. Furthermore, the alarm can only be caused by specific categories of wrongful conduct, threats to inflict serious physical injury or to commit a violent felony involving the person or property of that person or any member of that person’s family.” 299 Or at 706.
The same is true of the phrase “grave risk of public alarm” in
Defendants argue, finally, that
Moyle
is materially distinguishable because, while the harassment statute at issue there prohibited only that conduct causing objectively reasonable alarm,
Defendants are correct that the harassment statute in Moyle embodies an element of objective reasonableness:
“While it is true that there may be wide variations in the kinds of threats which subjectively instill alarm in different individuals, the statutory phrase ‘threat reasonably * * * expected to cause alarm’ has been construed herein to require not only that the addressee have a reasonable belief under the circumstances that the threat actually will be carried out, hut also that the factfinder finds this to be objectively probable.” Id. at 706.
Defendants are wrong, however, in asserting that
Reversed and remanded.
Notes
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Defendants also demurred on federal constitutional grounds. However, the parties appear to agree, albeit for different reasons, that the free speech protections extended by the United States Constitution are not at issue in this appeal. Consequently, we confine our analysis to the Oregon Constitution.
Our affirmance of the trial court in that particular disposes of defendant’s first cross-assignment of error, which asserted that the trial court erred in characterizing the statute as effects-driven, rather than content-driven.
Cf. Moyle, 299 Or at 699:
“The constitutional prohibition against laws restraining speech or writing cannot be evaded simply by phrasing statutes so as to prohibit ‘causing another person to see’ or ‘to hear’ whatever the lawmakers wish to suppress.”
Although we do not believe that the trial court subscribed to such an analysis, its comments could, less plausibly, be interpreted as stating that
That approach is untenable. It would destroy the integrity of Robertson’s analysis by permitting virtually all as applied challenges to be asserted as facial overbreadth challenges, thus collapsing Robertson’s third category into its second. Under such an approach, the only cases remaining in Robertson’s third category would be those in which the statute’s proscribed means did not, and could not, involve expression, but defendants were, nevertheless, charged for engaging in communicative conduct.
Defendants do not argue that the phrase “violent and tumultuous conduct’ ’ is vague.
Norris-Romine/Finley did not refer to Goodwill, but its inconsistency with Goodwill is obvious.