State v. Ciancanelli

29, 2001; August March affirmed Argued resubmitted en banc and submitted April OREGON, OF STATE Respondent, CIANCANELLI, ROBERT CHARLES Appellant.

98CR2685FE; A108122 P3d Deputy argued Allen, Meredith Defender, Public appellant. cause for With her on the brief was David E. Groom, State Public Defender. Charles Robert Ciancanelli supplemental pro brief filed se. Attorney argued Atkinson, General,

Robert M. Assistant respondent. Hardy the cause for Myers, With him on the brief were Attorney Reynolds, General, and Michael D. Solicitor General. Judge, Deits, Edmonds, Landau,

Before Chief and Armstrong, Haselton, Linder, Wollheim, Kistler, and Judges, Judge pro tempore. Brewer, Collins, LANDAU,J. concurring part dissenting part.

Brewer, J., Armstrong, dissenting. J.,

LANDAU, J.

Defendant a business that offers live sex operates shows to the The state him public. charged with two counts of unlawful sexual conduct in a promoting show, ORS 167.062, one count of promoting 167.012, ORS prostitution, one count of 167.017, ORS and two compelling prostitution, counts of a child in using conduct, of sexual display ORS 163.670, out of the arising of that business. Before operation trial, he moved to certain evidence suppress that police obtained a search of the during premises. The trial court denied the motion. Defendant also challenged constitu- of the two tionality statutes that prohibit unlawful promoting sexual conduct in a show and promoting prostitution, ORS 167.062 and ORS 167.012 respectively. According defendant, the conduct of his business is protected by the free of Article expression guarantees of the Oregon Constitution, the First Amendment to the United States Constitution. The trial court rejected those challenges well. Defendant was convicted foregoing charges, (1) he now appeals, arguing that the trial court erred in deny- (2) the to ing motion in suppress, the constitution- upholding (3) ality 167.062, of ORS and the upholding constitution- ality of ORS 167.012. We affirm as to the denial of the motion without suppress further discussion. As to the constitu- tional challenges, we also affirm for the reasons that follow.

Because the state at prevailed trial, we state the evi- dence in the light most favorable to it. State v. Thompson, 328 Or 248, 250, 971 P2d 879, cert den 527 US 1042 Defendant an operated Angels, “adult-oriented” business that Roseburg offered various “shows” to individuals or small The customers would select a groups. show, a and pay fee, retire to a small room in which the shows would be performed.

Two undercover officers visited Angels. They paid to view a A “toy show.” woman took them a performer $100 small room with a couch and a CD She started the player. music and a She masturbated and performed striptease. her her fingers inserted into and her anus. also vagina She vagina. activi- continued those into her She a dildo inserted tip performer gave and The officers for 25 minutes. ties left. following and week returned

The two officers They girl to a paid were taken a “two show” $150. to view lingerie performance dressed two women room, which striptease, performed sat on the offi- music, some turned on laps, chests. on officers’ and rubbed their breasts cers’ vagina, into her while then inserted a dildo the women One of manipulated other, each kissed, touched it. The two the other Shortly engaged after one another. in oral sex with executed a search performance, the officers obtained per- Angels defendant and arrested both warrant formers. by charged indictment with Defendant was offenses. aforementioned indictment, demurred trial,

Before defendant his arguing ORS 167.012 violate 167.062 and that ORS expression guaranteed the state and federal rights of free argued Specifically, ORS 167.062 is he constitutions. facially that both stat- invalid and therefore overbroad applied The trial to this case. utes are unconstitutional the demurrers. overruled court assigns trial appeal, error to the first defendant

On charges brought on the demurrer decision court’s under argues, court, to the trial as he did He ORS 167.062. facially and unconstitu- unconstitutional the statute argument support applied. under the state his In tional as App 953, House, 66 Or State v. constitution, he relies on (1984), ajfd App 360, 681 P2d 173 Or recons 68 P2d this grounds in which 698 P2d 951 on other (1983) that portions of ORS 167.062 court held “genitals, pubic touching area or prohibited According unconstitutionally overbroad. buttocks” applied to strike down be now should House defendant, argument the fed- his under As for 167.062. of ORS balance briefly that the statute contends defendant constitution, eral any legit- necessary to further than it is broader because fails imate state Pap’s support A.M., is Erie v. in Cited interest. L Ed 2d 265 1382,146 S Ct 277,120 529 US arguments replies that, as to defendant’s The state distinguishable and, in constitution, the state House under According wrongly any state, to the our decided. event, was analyze opinion the statute in accordance in House failed 649 P2d 569 Robertson, 402, 412, with State analysis, progeny. the Robertson the state and its argues, Under regu- must first determine whether the statute we expression; inquiry ends, because Arti- not, lates if it does protects only expression. case, cle In this section argues, regulates only state specifically the statute in fact conduct expression. conduct”—not Even assum- “sexual ing regulates expression, continues, that the the state statute proper inquiry regu- Robertson, under then is whether it expression; does, lates the content ofthe if it then it is uncon- wholly excep- stitutional unless contained within a historical According tion to Article section 8. state, case, this wholly the statute is indeed contained within a historical exception. Thus, concludes, the state whether the statute is regarded regulating expression not, or it does not violate arguments Article I, section 8. As for defendant’s under the the replies Pap’s federal constitution, that, state A.M., upheld constitutionality United States Court government prohibition dancing. a local on nude 167.062(3) provides “[i]t

ORS unlawful any person knowingly manage, present direct, finance * * * public participants engage live show in which the sex- ual conduct.” The term “live show” means “a beings, appear bodily show in which human animals, or both 167.062(5)(a). spectators before or customers.” ORS “Public “any show,” turn, means entertainment or exhibition advertised or in some other fashion held out to be accessible 167.062(5)(b). public.” ORS means, “Sexual conduct” among things, other “human masturbation, sexual inter- * * * apparent grat- course in an act of sexual stimulation 167.060(10). ification.” ORS begin

We with defendant’s contention that ORS 167.062violates the state constitution. At the outset, we note agrees applies that defendant that the statute to the conduct Specifically, have there we described. is no debate that performers inwas, fact, what did “sexual conduct” and that in that conduct a performers engaged “public show,” as those terms are defined in the relevant statutes.1 I, Constitution,

Article section Oregon provides: passed restraining expression

“No law shall be the free write, or opinion, restricting right speak, print whatever; freely any subject every person but shall be responsible right.” for the abuse of this The constitution thus restraints on prohibits expression. whether conduct may be question “expression” protected federal free is state or speech guarantees notoriously See, H. Tribe, difficult one. Laurence American e.g., (2d 1988) 12-7, Law 825-32 ed dif- (detailing Constitutional § ficulties with a distinction between and con- drawing speech duct). sense; All is conduct some likewise much con- speech duct in the sense that it communicates an law, however, or a Under opinion message. merely necessarily because conduct is does not establish expressive I, that it is Article section 8. In and protected by Huffman Wade, Co. v. 857 P2d 101 Wright Logging six of “Earth First!” climbed on top members example, of and chained themselves from logging equipment banner read: “FROM they suspended large which - HERITAGE TO SAWDUST EARTH FIRST!” When owner of the obtained logging equipment compensatory in an action for the defendants punitive damages trespass, verdict, of the challenged constitutionality arguing their conduct was under Article sec- expression protected that, 8. The court tion stated

“[a]lthough undoubtedly those acts had a communicative effect, purposive activity in the sense that most human something about the frame of mind of the communicates actor, conduct, speech.” the acts were performance Judge questions “inter Brewer whether amounted to (Brewer, J., course,” concurring opposed to masturbation. 181 Or at 39 n 7 as part dissenting part). likewise are not certain that the conduct at We meaning argues of the statute. But defendant issue is “intercourse” within the statutory implicates components prohibition conduct at both issue conduct,” against public the state does not take issue with shows of “sexual Moreover, analysis way depends in no on whether the conduct at issue that. our “intercourse,” opposed to “masturbation.” amounted to at 449-50. Id. the statute case,

In this defendant contends 8, because expression protected by restrains sexual conduct in a show. According it prohibits defendant, expressive. before an audience any performance As view, In our is not so resolved. question simply clear, merely Co. makes Wright Logging Huffman in conduct to attract the attention of an audience engaging does not transform the conduct into necessarily protected Homicide, for is conduct. expression. Performing example, in front of an audience does not transform it into protected expression. need not determine, however,

We whether defen- dant’s conclusion that ORS 167.062 nev- prohibits expression ertheless is correct. Even that the statute restrains assuming we conclude the expression, restraint does not run afoul I, of Article section 8. outset,

At the we must determine the proper analysis I, under Article 8. The section assume that parties the analysis is dictated Robertson and by its In progeny. Stranahan v. Fred Meyer, Inc., 38, 54-55, 11 P3d 228 (2000), however, the Court held that of Supreme provisions the original Oregon Constitution are subject constitu- tional analysis Pearce, described in Priest v. 411,415- Or 16, 840 P2d the focus of which is the “intent of * * * framers and of the who it.” people Stranahan, adopted 331 Or at 54. In the court held that that method of particular, analysis I, to Article section 8. Id. at n applies 19. The court did not Robertson, under which analysis mention I, 8, section different. The somewhat court declined I, actually apply case, Priest to Article section in that because had it with brief- parties neglected provide any as to the ing intended of that section with meaning respect in that dispute Stranahan, case. 331 Or at 66 n 19.

We conclude that Robertson still controls our dispo- sition of I, cases under Article section 8. arising Although Court has that —at least in the Supreme suggested abstract —a different method of the fact analysis applies, remains that it has Moreover, not overruled Robertson. as in

Stranahan, in this case have not parties argued any- other than Robertson in this case. thing Lacking any applies assistance from we decline to undertake on our parties, own an of Article from the analysis departs method set out in Robertson. Robertson, In Court Supreme explained: * * * any pass

“Article section 8 forbids lawmakers to law ‘restraining expression opinion, restricting the free or write, freely any subject what- right speak, print or ever,’ beyond any injured by providing remedy person for right. enactment of ‘abuse’ of this This forecloses the any any law written terms directed to the substance any ‘subject’ communication, ‘opinion’ scope unless the wholly of the restraint confined within some historical well first Ameri- exception was established when the guarantees expression adopted can of freedom of were guarantees demonstrably that the then in 1859 Examples perjury, intended to reach. are solicitation or ver- crime, theft, bal assistance in forms forgery some fraud and their contemporary variants.” (footnote omitted). 293 Or at 412 That means that we are (1) there to determine whether was a restriction on required that was “well-established”2 the relevant during (2) and, so, historical if whether the stat period;3 challenged If “wholly ute falls within” that historical ORS exception. explain it meant a “well- Court did not in Robertson what exception. Long, Requiem William R. Robertson: The established” historical Cf. Free-Speech Oregon, and Death 34 Will L Rev Framework Life (1998) (a per the court “well-established” historical “means whatever case). exception had existed for ceives it to mean” in each It could mean that the many years adoption excep before the of the constitution. It could mean that the case, widely by acknowledged It In this as we tion was that time. could mean both. below, explain exceptions existed for centu some detail the relevant historical Oregon well-nigh that Constitution was ries and were universal at the time the requires; adopted, precisely test what so we need not decide what the Robertson requires, ever it the historical evidence is sufficient this case. 3 referring period,” generally In historical we refer to the time to the “relevant excep adoption Oregon of of Constitution. Given that the focus of the historical the analysis Oregon would have under tion is what the framers of the Constitution 510, 521, stood, (1987) Henry, 732 P2d to make sense. See State v. 302 Or 9 seems I, guar (objective analysis is to determine whether the of Article section replace” restrictions “were not intended to earlier antees freedom of Robertson, (characterizing objective expression); as determin on 293 Or at 412 I, previously ing well- whether Article section was “intended” to reach language regulation). thatalso forms of There is Robertson established state adoption of “the first American refers to the state of the historical record as of century. eighteenth guarantees expression” 293 Or at 412. of freedom of in the late

9 I, to Article a historical falls within wholly 167.062 4 ends. analysis 8, our section com sexual conduct —which of public Regulation nudity public to include even understood was monly —has for several hun legal landscape feature of the a regular been Charles 1663,5 when Sir least as as early dred years, on a himself naked for “shewing fined was Sydlye balcón/’ “contra at the below of urine bottles throwing Sir Charles the Government.” to the scandal of pacem, (KB 1663).6 William 1146, 1147 Case, 83 Eng Rep Sydlyes common English commentaries Blackstone —whose of American to the development so influential law were “cogni notorious lewdness” was “open law7—noted 4 Com Blackstone, courts.” William by temporal zable ed., 64 vol (Chitty the Laws England, mentaries on years adoption Constitution Why before the of the state of the law 60 difference, however, case, entirely it makes no clear. In this control is not would periods time as to the difference between those there is no substantial because exception. of a historical existence 4 Thus, wholly well-established challenged contained within a if the statute is necessary is overbroad. exception, whether the statute it is not to address historical expression protected only regulates overbroad to the extent A statute is (1999) 294, 299, Rangel, 977 P2d 379 section 8. See State v. 328 Or under Article (“An speech proscribes or conduct that the constitu is one that overbroad statute excep wholly protects.”). contained within well-established tion If the statute 8, logically, it cannot be overbroad. tion to Article back private ecclesiastical courts dates Regulation of sexual conduct English courts ecclesiastical from 1475 to 1640 show even further. Records of the disciplinary moral life of the members control over the “exercised a wide incontinency, adultery, church,” trying parishioners for such offenses 1956). (7th Law, Holdsworth, History English ed 1A incest. William colorful, significance, way, for Sydlye, by academic is of much more than by nine very America that was much-cited proved well-known decision in it teenth-century to be a support for the conclusion that and courts as treatise writers Russell, E.g., A Treatise William Oldnall actionable at common law. nakedness was (1845) Wharton, Sydlye); A Misdemeanors, (citing Francis 325 n b on Crimes and 1855) (3rd (citingSydlye). States, ed the Criminal Law the United Treatise on Transfer, explained v. Gresham Oregon Supreme in Smothers Court As the widely sold Inc., 83,98,23 Commentaries were P3d Blackstone’s principal the colonists’ information means of “and became one of the in America Boorstin, The English general.” also Daniel J. law in See about the state of (1996) Commentaries, 3,4 Essay Mysterious the Law: An on Blackstone’s Science of (“In were not century independence, the Commentaries the first of American law; lawyers they there study constituted all merely approach most an * * * years during scarcity earliest In of lawbooks of the law. view was frontier, surprising that it is not on the Republic, and the limitations of life lawyers.”). American became the bible of Blackstone’s convenient work 10

1870). Such indictable conduct included houses “frequenting of ill-fame” and “[e]xposing party’s person to the public view.” Id. at 64 n 25. Parliament enacted a statute declared a man who his “Person” to a exposed woman was as “a punishable Rogue 5 Geo ch Vagabond.” IV, 83, 4§ in 64 The reprinted Statutes at Large the United Ireland, Great Britain and Kingdom 5 George IV1824, 382 (1824). The mere act of stripping sea, to bathe without other act of “wanton any indecency,” was apparently enough the attention of the provoke criminal English justice sys (KB 1809). Crunden, tem. Rex v. 1091, 1091 Eng Rep “The law will not tolerate such exhibition,” an the court held. Id. “Whatever his be, intention might necessary tendency of his conduct was to outrage and to decency, corrupt the pub lic morals.” Id.

The American colonies where the picked up English Indeed, left off. early colonists, particularly New England puritans,8 devoted an extraordinary amount of energy regulation only of public immorality, but also of entirely conduct, private including adultery, fornication, bug- gery, and —with particular bestiality. See generally zeal — Hall, Kermit L. The Magic Mirror: Law in American History, (1989). 32-33 By the mid-nineteenth century, nearly every state the crime recognized of public indecency or lewd- ness. As Lawrence Friedman observed, in the enactment of laws, those colonists, example, “leniency” English Massachusetts for decried the dealing juris ecclesiastical courts in with moral offenses and transferred the entire justice system diction of the ecclesiastical courts to the civil so that sexual conduct regulated by colony keeping principles. could be See more in with biblical Authority Early George Haskins, Study Law and Massachusetts: A Lee (1968). Design, 90,183

Tradition and regulation This obsession with the of sexual conduct was not limited to puritans, colonies, Massachusetts but is reflected in the laws of other such as Virginia, York, Pennsylvania, generally Maryland, as well. See New David H. America, Early Flaherty, Law and the Morals in in Law in Enforcement of (Donald History, 203,213-14 American Fleming Bailyn 1971); & Bernard eds. Traci Stratton, Messing No More Around: Substantive Due Process Shallbetter Challenges Fornication, Prohibiting to State Laws L Rev Wash any fine, punished The colonies forbade fornication of sort and the offense lashes Id.; back, interestingly—marriage. see also John D’Emilio & Estelle B. on the and — (1988) (describ- Freedman, History America, Sexuality Intimate Matters: A fornication). ing punishments different colonial rich, tradition, period carried on colonial republican “the (or, accurately, repres- more to sexual control committed sion). law, By no break with the abrupt past. There was any life at entitled to kind of sex only people married was not only Everything within narrow limits. else all, and * * * crime, sin, Adultery was a was a only a crime. (of course) fornication, incest, and ‘the detestable nature, with or with against crime committed mankind described, though crime so awful it was not even beast’—a presumably Any ‘open, was people most knew what meant. gross and lascivious behavior’ was also an offense. lewdness Similarly, people’s it was a crime to cater to other lewdness.” and in American Friedman,

Lawrence M. Crime Punishment (1993) (footnotes omitted). 127-28 History, of specific language early-nineteenth-century Some, Arkansas’s, prohib- laws varied. such as specifically ited or nudity body: “obscene exhibitions” of public naked, or

“Every person appear making public public places who shall his partly the intent of exhibition of with any per- shall his nudity, or who make obscene exhibition of son, be deemed of a guilty shall misdemeanor.” art Ark, 51, VIII, 1, (1858); Stat ch 377 see also Rev Stat p § (1843) NH, XTV, 113, nudity ch 221 6, title p (prohibiting § view house or any purpose swimming road “for or otherwise, Code, or NY Penal without bathing, necessity”); (1865) (Field Code) VII, title X, 363(1), (any person ch 134 p § his thereof’ who or the or “[e]xposes person, private parts misdemeanor). another Others procures guilty do so See, “notorious,” “public or lewdness.” prohibited any “open,” (1845) ch Ill, 30, 127, “open Stat 174 e.g., p (prohibiting Rev § Ind indecency”); or other notorious act lewdness, public (1852) 433 lewdness 22, Rev Stat “notorious p (prohibiting § Courts, 86,§ or Stat Laws Terr Iowa indecency’); other public (1839) notorious lewdness, or other p “open 165 (prohibiting 5, p 684 Me, 124, act of Rev Stat ch indecency’); § (1857) lewdness and lascivious (prohibiting “open, gross (1864) 165, 6, (prohib behavior”); Mass, Gen Stat ch p § behavior”); Pa and lascivious iting and lewdness “open gross (1860) lewd 44, IV, p (prohibiting “open title 394-95 Laws, § Stat, Vt Rev indecency”); or notorious act of ness, any (1846) ch 99, (prohibiting and lewdness “open gross § and behavior”); Code, 54, lascivious Va title ch 197, p § (1849) (prohibiting and lewdness and “open gross lascivious- ness”). Still others prohibited “lascivious carriage,” obviously referring something See, other than a horse-drawn buggy. (1835) Stat, Conn title e.g., 21, 79, p “las- (prohibiting § behavior”). civious carriage was no different. In 1854, the Territorial

Legislature prohibited “open lewdness and gross lascivi- ous behavior.” Rev Or, Stat Terr An Act to Crimes Define Misdemeanors, and Regulate Criminal ch Proceedings, A decade p later, the legislature § more got specific:

“If any person wilfully shall lewdly expose his per- private parts thereof, son or the any public place, or in any place where there are present persons other to be * * * annoyed offended or thereby, or any make other exhi- public view, bition of himself to any or to the view number persons, such as is decency, offensive to adapted thoughts acts, excite vicious or lewd person, upon such thereof, conviction shall be punished by imprisonment in county jail, months, not less than three nor more than year, by one fine not fifty, less than nor more than five hundred dollars.”

General Laws of 48, ch Oregon, 632, 559 1845- p (Deady § 1864).9 9 Oregon recognized that, law, open The courts also at common and notorious lewdness, including “roaming exposure [and] the streets naked the indecent ofthe person highway public place,” well-recognized on a or in punishable were they outraged public decency against good “because and were morals.” State v. (1905) (citations omitted).

Nease, 433, 440, 46 Or 80 P 897 Judge citing published Brewer takes us to task for statutes and cases that were adoption authority, after the of the Constitution. Without citation to he significant light contends that such historical sources “shed no on the framers’ (Brewer, J., concurring part dissentinginpart). intent.” 181Or at 39 n 6 in and Judge Armstrong similarly complains that our reliance on such materials is improper. respect, mistaken, logic precedent. With both are as a matter of and Logically, significant later-enacted statutes can serve as sources of informa- times, particularly tion about the state ofthe law in earlier when the statutes were merely codify See, doctrines, intended earlier common-law as is often the case. (1960) e.g., Jackson, 337, 343, (observing State v. 224 Or 356 P2d 495 that statute codify long no “does more than in this what has been the common law rule of construction state”).

13 did not Nineteenth-century legislatures stop pub- conduct, either. Even sexual conduct was private lic sexual of the regulatory considered well within prerogatives a man state at the time. Statutes and woman liv- prohibiting “in or fornication” were ing together adultery commonplace. (1857) (unmarried See, Me, Rev Stat ch e.g., p § “lewdly lasciviously cohabit”); not and Gen Stat persons may (1864) (unmarried Mass, 165, 6, ch p may persons § and lasciviously associate and cohabit “lewdly together”); (1848) Miss ch Code, 64, 58, 939 p (prohibiting “adultery § (1849) fornication”); Code, 197, 7, Va title ch p (“any § other, white not married persons, to each [may lewdly not] and lasciviously associate and cohabit together”); see also Donal Sex, Crime, E.J. MacNamara & Edward Sagarin, (1977) (fornication Law, was made eventually illegal America). in all jurisdictions

True, many instances, state statutes did not define the precisely “lewd,” “lascivious,” terms or “indecent.” Courts and of the time legislators con- notoriously cerned with “the chastity records,” of our v. Commonwealth (Pa Sharpless others, &Serg 91,103 1815), Rawle See, were disinclined to describe sexual conduct in any detail. (1848) (“Courts v. e.g., People Girardin, 90,91 1 Mich will never [their] allow records to be polluted by bawdy matters.”). obscene Nevertheless, it is entirely possible— indeed, conclude that easy the terms included the —to sort of conduct at issue case, is, in this intercourse and masturbation. precedent, Oregon Supreme frequently As for Court has to later- resorted meaning enacted example, statutes determine the constitution. For

Jory Martin, 278, 293-95, 56 P2d 1093 the court determined the meaning to, among things, legislative of the constitution reference other enact- during 1860, 1862, 1893, 1895, legislative ments recently, and sessions. More Smothers, meaning the court determined the intended ofArticle sec- part by relying Deady who, noted, tion on the views of Matthew the court — president Oregon served as the Constitutional Convention in 1857— years expressed adoption some 30 the of the constitution. 332 Or at 122. The after jurisdictions court also relied on case law from this and other from 1879-88 to earlier, is, determine state of the the tort law two to three decades that at adoption time of of the state constitution. Id. at 129-31. defined the dictionaries

Mid-nineteenth-century the unlawful indul- terms: “Given to in sexual term “lewd” dissolute; or adultery; to fornication lust; of addicted gence Webster, Dictionary 2 An American Noah lustful; libidinous.” (1828).10 1839 law Bouvier’s English Language of reference to With obvious more explicit. was even dictionary “indecency,” the term Crunden, it defined and Sydlye indecency, are of such following examples “The explaining: on a bal- person a man of his naked by namely, exposure 1A Bouvier, John view, bathing public.” cony, public and Laws to the Constitution Dictionary, Adapted Law of America, Several States and States United of Union, 492 American that lewdness and similarly report treatises Early and, in particular, pub- sexual conduct referred to indecency “ n indecent [a] Wharton, example, explains nudity. lic indictable offence.” view is an person public exposure States Law United A Treatise on the Criminal Wharton, crime for a mas- it likewise was a noted that 804. Wharton in the public highway “to about pass his servant ter to permit ref- observed with Bishop Id. at 805. of nakedness.” in a state lewdness there is no doubt to earlier cases erence indul- intercourse, irregular illicit sexual “includes Joel Prentiss lust, public private.” whether gence Crimes Statutory on the Law § Commentaries Bishop, A Treatise on Crimes Russell, also (1873); see p (“In all lewdness grossly general, open at 325 Misdemeanors at the common law: indictment is punishable scandalous that whatever be an established principle appears morals, is injurious and is decency, outrages openly misdemeanor.”). reflects the universal case law Nineteenth-century “indecent” on “lewd” and that prohibitions understanding and, conduct least, sexual included, very at the conduct deci- Court’s The Indiana nudity. particular, illustra- State, 10 Ind in McJunkins sion the term case, acknowledged the court In that tive. 145. Nev- indefinite.” Id. at “vague indecency’ “public come to be commonly it had held, court ertheless, pages. not have numbered edition did The 1828

15 the displays mean “public the courts to understood exhibition of sale, the publication, [and] naked person, Id,.11 The in Britain v. Similarly, and prints.” obscene books Hum) (3 the defendant was (1842), 204 203, 22 Tenn State, his slaves to go for “permitting] of “lewdness” convicted * * * Likewise, in of nakedness.” a state country about the Bat) (1 the court 208, 209 18 NC Dev & State v. Roper, on the defen- for indecent based exposure a conviction upheld nudity, commenting public exposure “[a] dant’s public most offensive of those out- the among the naked person, The State v. See also decency morality.” rages (1859) is an Hazle, 156, (public nudity 20 Ark 159 Mary (12 Mass Lambert, v. 94 offense); indictable Commonwealth (1866) (“We Allen) [lewdness] have no doubt 177, intercourse, and the indul- irregular illicit sexual includes Miller lust, private.”); whether gence 1849) (NY 203, nudity requires Barb (public People, (1846) 18 Vt 577-78 intent); Millard, (public State v. lewd, “is and is lewdness gross of a exposure person’s genitals * ** animadversion proper subject [and] was criminal jurisprudence”). any

It be that we have failed to may objected report of ORS 167.062 in directly language statutes that parrot and masturbation. intercourse prohibiting public hesitate to conclude that That is true. We nevertheless do not mid-nineteenth-century understood framers sexual con- authority regulate public that the state had of the as sexual intercourse and public exposure duct such for several reasons. reach that conclusion We genitals. a his- not read Robertson to such First, require we do To the contrary, Oregon Supreme torical “smoking gun.” consist that a historical does not Court emphasized instead of a well- but statutory prototype, of a particular evidenced other by, among of law established principle judicial vagueness Interestingly, response concerns about “lewdness,” Legislature clear later amended the statute to make the Indiana term “mak[ing] any exposure any person uncovered and indecent prohibited from that it illustrating person,” again well-understood connection once of his or their State, 64 Ind public sexual conduct. Williams v. The “lewdness” and between

things, statutes and case law from the relevant times. Robertson, 293 Or at Thus, 434. in the cases decided since Robertson, Court Oregon Supreme has canvassed a wide array historical sources from which to draw inferences about the framers’ intentions. In Henry, for example, court literature, statutes, examined cases, and treatises from the seventeenth and eighteenth centuries to determine whether there existed a well-established historical exception for the regulation “obscene” publications. 302 Or at 515-23. Similarly, State v. Moyle, 696, 705 P2d 740 (1985), the court examined from precedents both English American from the legal history early-eighteenth to the mid- nineteenth centuries to determine whether the state consti- tution was intended to protect nonextortionate written threats. In this case, we have followed same analytical approach, examining English and American from precedents the seventeenth to the nineteenth centuries to determine what the framers most likely intended with to the respect regulation of sexual conduct.

Second, relevant historical sources repeatedly attest to the of the authority state to regulate ‘lewd,” “lascivious,” and “indecent” behavior and explicitly define those terms to See, include sexual intercourse. e.g., Bishop, Commentaries on the Law Statutory Crimes 716 at 459 (noting § with ref- erence to case law that prior lewd behavior “includes illicit sexual intercourse, and the irregular indulgence lust, (12 whether or public private”); Lambert, see also 94 Mass Allen) (“We at 179 have no doubt that includes [lewdness] * * * illicit sexual intercourse whether or public private.”).

Third, from that, apart eighteenth- and nineteenth- statutes and case century law reflect the widespread —if regulation public See, exposure genitals. universal — 48, 632, General Laws of ch e.g., Oregon, p it a (making § crime for any person ‘lewdly his expose person the pri- thereof’). vate parts Logically, evidence leads to one of two conclusions about the possible framers’ intentions with of sexual respect regulation intercourse and mastur- hand, bation. On the one it that, could be inferred because the framers so relentlessly even as little prohibited as public follows that nudity, necessarily intercourse public masturbation would have been as even more odious regarded more to state On the obviously subject regulation. and even the framers hand, that, other it could be inferred although understood could be public nudity regulated, they nudity understood that while apparently public engaged (or intercourse or masturbation could not that both were per- on). as the their long missible offenders clothes kept the evidence that Frankly, given we have described about morals, statutes, antebellum and case law, we find the latter remote, be the least. possibility say

Fourth, there is likewise abundant evidence of the regulation of even private adultery fornication See, mid-nineteenth century. Code, Miss ch e.g'., (pro- § fornication”). hibiting “adultery We find it highly unlikely the framers would have understood that, although state could legitimately regulate private adultery forni- cation, conduct was protected expression.

It may also be objected of nine- ubiquity teenth-century sexual conduct laws does not necessarily reflect the extent to which those laws were enforced. Friedman, that, observes example, early-nine- teenth sexual conduct century, private statutes do not appear to have been vigorously Friedman, enforced. Crime and Punishment in American at 128. He History notes, also how- ever, that, while enforcement attitudes with changed respect to wholly sexual conduct such private as fornication and adul- tery, nineteenth-century attitudes towards sexual public conduct remained Moreover, Id. 130.12 for our unchanged. is not whether purposes, point sexual conduct laws were enforced; rather, is whether the framers believed that state had the to authority enforce them. No one questioned that in the early-nineteenth century. 12Flaherty similarly exasperation details colonial with the enforcement of morality, concerning public leading extra-legal laws to efforts enforce commu to morality. nity Flaherty, Early standards of Law Morals in Enforcement of that, although prohibitions

America at 225-45. Others have observed colonial against tone, judicial illicit in sex were harsh enforcement of them often was See, practice. e.g., Godbeer, Early Richard restrained Sexual Revolution in (2002). America, 101-02

Constitutional to the of the challenges authority state to regulate public conduct, fact, unknown before the Civil War.13 The conventional view is the notion that the state or federal government lacked the constitutional authority regulate sort of conduct was not until well after suggested the turn of the twentieth See, century. e.g., Bradley Bobertz, C. The Brandéis Gambit: Freedom,” The Making America’s “First 1909-1931,40 Wm of (1999) (“At & LMary Rev the end of the nineteenth the most century, remarkable of our aspect ‘first freedom’ was that no one practically it, talked about wrote it, about it.”); sued to enforce White, G. Edward The First Amendment Comes Age: Emergence Free Speech Twentieth- of (1996) America, Century 95 Mich L Rev 299 (tracing origins of new of free conceptions twentieth cen- speech early More tury).14 revisionist historical that, scholarship suggests earliest, at the such “libertarian radicalism” in the emerged last decade of the nineteenth See David M. century. generally (1997) Rabban, Free in Its Speech Forgotten Years, 23-77 of new (tracing origins of free conceptions speech theory the Free and its Speech League turn-of-the-century opposi- 1873). tion to the Comstock Act of then, Even the focus was challenge constitutionality obscenity There was one of a federal stat 1873,18 ute —the infamous Comstock Act of §USC 1461—-before the United States Supreme shortly Court the Civil War. The Court held: after only question constitutionality "The for our determination relates to the of the act; and of that we have no doubt.” (1877). Jackson, 727, 737,24 Ex Parte 96 US L Ed 877 As late as the United States Court held that the First indeed, Rights the entire Bill of Amendment — —was lay any principles government, simply “not intended to down novel but embody guaranties certain and immunities which we had from inherited our ancestors, English subject and which had from time immemorial been to cer- well-recognized exceptions arising tain from the necessities of the In case. incorporating principles these into the fundamental law there was no intention disregarding exceptions, recognized they which continued to be as if had (art. 1) formally expressed. Thus, speech press been the freedom of and permit publication libels, blasphemous articles, does not or indecent publications injurious private reputation!.]” other morals or (1897). Baldwin, 275,281,17 326,41L Robertson v. 165 US S Ct Ed 715 Even a dec later, Holmes, Court, writing explained guarantees ade Justice for the that the prohibit freedom of contained in the First Amendment were intended to only prior regulation speech restraints and that after-the-fact state was consti long injure Colorado, speech tutional so as the tended to morals. Patterson v. 454,462-63,27 205 US S Ct 51 L Ed 879 sexual private, not protection public, the constitutional Id.15 conduct. century to us a short, may seem quaint

In however later, beyond per- historical record establishes a half the did the Oregon the framers of Constitution that adventure 8, to provide protection understand sexual intercourse of public state regulation against notion that the state To the contrary, masturbation. was sexual conduct public constitution protected federal into We therefore century. until well the twentieth unknown ORS that same conduct under that regulation conclude histor- contained within a well-established wholly 167.062 is ical exception. in Armstrong, Brewer and

Judges separate opinions, note that neither contests our essential thesis— disagree. We inter- the framers did not understand They constitutionally protected. course or masturbation be that historical that, reasons, assert number of simply matter. fact does not have

Judge complains inappro- Brewer first we issue in this case —con- assumed that conduct at priately occurred in a small room in an establishment duct “that to be only paid can be seen who have there”— by patrons in mid-nineteenth “public” have been regarded would (Brewer, century. J., coneurringin at 39 part in part). dissenting with, that, foregoing we note begin making

To that, as of assertion, point Brewer misses Judge regulated sexual conduct had been private both See, constitutionality. e.g., question the state without (to “obscene “the Hazle, prove place 20 Ark exhibition” Rawle at 101 Serg & Sharpless, need not be public”); [,] in a indecency “public shop indictment charged (although * * * difference”) (emphasis original).16 no that can make noted, thought Moreover, emergence of radical such as White has fully century reflective of what lawmakers cannot be seen as late-nineteenth White, authority The First generally thought at the time. about the state Age, n 25. 95 Mich L Rev at 311 Amendment Comes of similarly complains and statutes Judge that some of cases Brewer adultery pertaining to and fornication —concern have as those we cited—such that,

But aside from Judge Brewer simply wrong that what ORS asserting is, 167.062 sex- prohibits —that ual conduct performed during any “entertainment exhibi- tion” that is “accessible to the not have been public” —would considered in the mid-nineteenth “public” “Public” century. commonly houses to understood refer to places open for entertainment. 2 Webster, An E.g., American (1828); Dictionary Alexander A Burrill, M. 2 Law Dictionary (1867). and Glossary, 352 that Bishop similarly reports “any may be made place public by a temporary assemblage,” and fact some are people excluded from room does not being its Joel “prevent Bishop, such.” Prentiss 1 Commentar- Law, ies on the Criminal 181, 225-26 Courts like- § wise held that rooms in which members of the public paid view sexual conduct were in “public.” Directly point 1875). (NY regard 221 People Bixby, Barb In that case, five men paid money watch women group engage in “indecent ain closed room in a brothel. exposure” Citing treatise, Bishop’s the court concluded that the room was “public”: may be “Any place public by made a temporary [,] and assemblage this is so when the especially assemblage to witness gathered an exhibition for hire.” Bixby, Barb at 222. Brewer

Judge then turns his attention to the extent to which we have demonstrated that ORS 167.062 is “wholly contained” within a exception. historical He insists that we must establish the precise boundaries of the historical excep- may tion before we know whether the modern statute is wholly (Brewer, J., contained within it. 181 Or at 40 App con- in and curring part part). Judge in Brewer never dissenting explains why so, that is As a matter of logic, however. he is incorrect. we Merely because do not know the boundaries of a lake does not mean that say we cannot with confidence that a stone is contained within it. More wholly important, as a matter of incorrect; he likewise is as we precedent, have Robertson fit noted, expressly that an exact with a provides (Brewer, nonexpressive entirely App conduct and thus 181 Or are irrelevant. at J., however, concurring part dissenting part). again, in and in Once he has missed point: century, pervasively legislatures regulated In the mid-nineteenth state conduct, nonexpressive. private, expressive both Given that fact, only in case historical regarded by we can conclude that the conduct at issue this was not constitutionally protected. the framers as is not 293 Or statutory prototype required. historical specific at 434. insists have miscon- Brewer also we

Judge under Article a “historical qualifies exception” strued what he “do not says, trap section 8. “True” historical exceptions, Instead, of our own device.” he warp argues, us in a time unstinting pedigree values whose “they reflect timeless conjure there is no occasion to their mean- patent is so ing or contours.” J., in and dissent- (Brewer, concurring part App Thus, Brewer, the historical

ing part). says Judge excep- have identified is because it unacceptable, tion that we of toler- contemporary “makes no sense standards light (Brewer, J., ance.” 181 Or at 41 concurring part dissenting part).

Here, Brewer veers wide of Judge especially relies on decency mark. He standards contemporary evaluate whether an well-established otherwise truly “historical.” That to reconcile with impossible Henry17 Robertson and its in and progeny, particular, Moyle does us in a “time That is it refers warp.” why Robertson trap in the fram to a “historical” defined terms of what exception, ers in statutes modern-day judges examining 1857—not the lens of moral sensibilities— through twentieth-century See, about of state In re thought scope authority. e.g., (1983) P2d 855 Lasswell, 121,124, (regulation 296 Or “a histori is unconstitutional unless it falls within speech intend established that the framers did not cally exception” constitution). Henry, to abandon upon adoption much different —and shorter— would have been a example, Court Supreme Brewer correct. opinion, Judge and amount of effort cases evaluating a considerable spent to the nineteenth centuries statutes from seventeenth Constitution what the framers of the determine nineteenth-century Moreover, Judge premise Brewer’s factual —that (Brewer, J., morality, App longer at 41 no reflect conduct statutes recently dissenting part) concurring part in at least debatable. As in —is exposure. v. Glen prohibit See Barnes states continued to indecent (1991) Theatres, 2456,115 (reporting Inc., 560, 568, L Ed 2d 504 501 US 111 S Ct exposure regulation). current indecent thought about regulation Not obscenity. once did the court appeal contemporary morality evaluating reg ulation of as a obscenity well-established historical exception.

Judge Brewer attempts draw support for his novel from analysis familiar criticism of originalism in general, namely, framers sometimes were “intolerant, nar- row-minded, and bigoted” that reliance on their inten- tions will lead “inevitably to results that make no sense” to the modem citizenry. 181 Or at 41-42 App (Brewer, J., con- curring part dissenting in part).18 We will not debate the merits of a jurisprudence of original intent, however. For our purposes, debate is irrelevant. The Oregon Supreme Court has plainly described the exception under analysis in historical —not contemporary —terms. concerns Any as to the propriety of the analysis must await Court’s reexamination of its own case law. Per- haps this case will present an opportunity for the court to do that. In the meantime, we are persuaded that what we have described and is what the applied court’s cases require. Brewer

Judge also claims for his support approach in our decision in House. 181 Or at 40 App (Brewer, J., con- curring part dissenting part). Candor us to requires House, acknowledge indeed, employed an approach sim- ilar to the dissent’s. House also is plainly wrong. This court held that the statutory prohibition on public touching was genitals unconstitutionally overbroad, scarcely mention- ing Robertson, much less it. In applying particular, the court never addressed the whether the question challenged statute was wholly contained within a well-established historical Instead, exception. after listing number of contemporary theatrical works that conceivably could run afoul of the stat- ute, the court simply declared, dixit, ipse the statute obviously was overbroad. House, 66 Or at 958.19 House, 18 Judge that, passing Brewer also in

Finally, Judge that, Brewer if we complains are cor- rect about the of state constitutionality of regulation Theatre, nudity, then, under A.M. and v. Glen Pap’s Barnes Inc., 2456,115 501 US 111 S L Ct Ed 2d 504 (1991), reg- ulations of conduct that are expressive permitted by Constitution be Oregon prohibited by would the First Or (Brewer, J., Amendment. 181 at 44 concurring in part in indeed, and That is a dissenting part). argument, curious in Pap’s for both A.M. and Barnes, the United States Supreme upheld Court of statutes constitutionality pro- nude What is hibiting dancing. more, Barnes, in the Court noted that the Indiana statute at public indecency issue that case because, was constitutional centuries, for precisely the courts have recognized states’ interest legitimate in pro- tecting public morality. The Court even so far went as to cite Sydlye: public indecency

“The is clearly statute within the consti- tutional power the State and gov- furthers substantial * * * purpose [T]he ernmental interests. statute’s protecting morality societal order and is clear from its text indecency history. and Public statutes of this sort are of ancient and origin presently exist in at least States. Pub- indecency, nudity, lic including was a criminal offense at law, common this Court recognized the common-law roots of the offense of‘gross open indecency,’ in Winters York, 507, 515[, v. New 333 US 68 S Ct 92 L Ed 840] nudity Public was considered an malum in act se. LeRoy Sidley, [83 Eng Rep indecency Public 1146-47.] statutes such as the disapproval one before us reflect moral tough square certainly framers are first to make that with the historical evidence. We are not the See, Comment, point. e.g., Barnhart, Oregon Daniel Bill of Rights Obscenity: Jurisprudence History, How Constitutional Confounded (1991) (noting Supreme Henry ignored L Rev Or decades of that the Court in over six illustrating obscenity). regulation case statutes and law state interesting question: Supreme gen- That raises an When the Court makes such history, legal by them, comments American are eral about lower courts bound even If, they demonstrably example, when are incorrect? Court decides Lincoln, by that John Wilkes Booth did not are assassinate Abraham we bound “decision”in future cases? Fortunately, question. that, do not need are we to answer We confident necessary history holding the extent that the court’s comments about are not decision, by aof we are not bound them. That is so in None of the court’s this case. Henry rugged pioneer about comments indispensable and robust forebears the like were holding that decision. among strangers the nude appearing people places.” certainly Our decision does

Barnes, 501 US at 567-68. that analysis.22 conflict with that a assuming necessary implication

But even permitted by is that some analysis regulations our the federal Constitution turn out to be prohibited to us that means that constitution, entirely why it is unclear to assume that our Brewer analysis wrong. Judge appears Constitution must be more of individ- protective the Oregon is, however, than the federal constitution. There no ual rights for that basis whatever assumption.23 echoes Brewer’s contention Judge Armstrong Judge the outcome of this case is controlled 181 Or by Henry. J., noted, at 50-51 As we have App (Armstrong, dissenting). however, decision, was a narrow a different Henry involving historical and a different statute. exception Judge Armstrong also claims from support this court’s decision State 118, (2000), 168 Or 5 P3d 1142 den Maynard, App rev (2001), Or 137 which he rejected reads as the same having analysis historical on which we in this case. 181 Or rely App 22 Judge support also Brewer claims from a recent decision of the Court of (7th Circuit, City Cumberland, Appeals for the Seventh Schultz v. 228 F3d 831 of 2000). enough, hardly Cir While the citation to the case is accurate the case itself See, majority Miller, 900,904 e.g., reflects an uncontested view. Farkas v. 151 F3d (8th 1998) (upholding constitutionality prohibiting, among Cir of state statute things, public performance any upon place [a] other “simulated of act or in of sex (10th business”); Dodger’s Cty. of Com’rs, Bar & Grill v. Johnson Bd. 32 F3d 1436 1994) (upholding constitutionality county barring public Cir actual or simulated sexual acts); resolution show of intercourse, masturbation, and assorted other sexual (6th 2002) Nichols, (upholding seealso Richland Bookmartv. 278 F3d 570 Cir constitutionality Deja dancing regulation); of nude Yu Nash. v. Metro Gov’tof (6th 2001) Nash., (upholding regulation dancing); Hang 274 F3d 377 Cir of nude (5th 1995) On, City Arlington, (upholding Inc. v. 65 F3d 1248 Cir constitutional ity regulating dancing). of ordinance nude law, fact, contrary. Div., Employment is to the In Smith v. 301 Or example, Oregon Supreme 721 P2d 445 for Court determined that the protective clause than counter state free exercise part. is less its federal constitutional Oregon Supreme ultimately disagreed The United States Court with the Div., reading Employment Dept, of the First Human court’s Amendment. Ore. Smith, Res. v. 494 US 110 S Ct 108 L Ed 2d 876 But the fact that, law, Oregon remains has determined that it does not as a matter of state constitutional Court that, merely necessarily follow because the protective rights, Constitution sometimes—even often—is more of individual always must be so. at J., 50-51 (Armstrong, Once dissenting). again, Judge Armstrong to understand that this case neglects involves a different historical and a different exception statute from the ones at Moreover, issue in he Maynard. ignores the fact that held that it majority Maynard only was not necessary to address whether the statute issue that case was wholly contained within a well-established historical excep- tion. See 168 Or at 137 Maynard, the dissent App (criticizing for a “different method following analysis, which causes it to detour into an examination of unnecessary the historical doctrine”). next

Judge Armstrong that our historical complains analysis flawed because it is based on an examination of laws regulating both and conduct. According Judge historical Armstrong, only evidence that “matters” is evidence of nineteenth-century statutes restrict expression. J., at 51 (Armstrong, dissenting). That, noted, as we have incorrect. Robertson itself simply cautions that the historical exception analysis is not limited searching particular statutory 293 Or at prototypes. Instead, 434. focus is on the intentions proper of those constitution, who adopted gleaned from historical any materials that shed on those intentions. light Id. at 412 focus is what the (proper framers intended with respect 8).24 scope Thus, in cases following Robertson, Court has examined a Supreme wide array historical involving regulations of conduct as well sources — See, as determine the speech intentions of the framers. —to at e.g., Henry, Or 515-25.

Judge Armstrong finally our histori- complains cal analysis because the crimes at issue in unnecessary, this case are not “conventional crimes.” 181 Or at 53 App J., (Armstrong, That, however, is not the dissenting). simply vein, Judge Armstrong In a similar that we contends have misstated proper inquiry, focus of which he insists should be whether there is evidence specifically particular type regulation that the framers intended the at issue to J., adoption (Armstrong, survive the senting). of Article section 8. dis view, phrasing negative In our of the test —whether in the or the affir question in mative —does matter this case. In either event the is what the fram understood, that, believe, ers would have we is clear from the historical evidence. Court’s cases in any Supreme reflected that is analysis correct, if Indeed, Judge Armstrong since Robertson. amounts to Henry in analysis historical then the extensive no support We find unnecessary dictum. entirely of the case. reading are of ORS 167.062 the challenged portions

Because historical excep- a well-established contained within wholly chal- that defendant’s tion, we conclude challenge his First Amendment fails. That leaves lenge much less discussion. of with statute, may disposed be which defendant, ORS 167.062 violates According it amounts to a Amendment, regulation because First any than to serve necessary legit is broader interest. Defendant cites support imate government Court’s decision the United States Supreme argument that, case, in that Defendant fails to out point A.M. Pap’s a local ordinance government pro Court upheld a First Amendment chal nude hibiting dancing against that nude danc members of the Court concluded Four lenge. the outer ambit of the First Amendment’s “falls within ing But the Court also concluded that 529 US at 289. protection.” to a de minimis intrusion on expres the ordinance amounted local government’s legitimate sion that was justified at 296- health and welfare. Id. protecting public interest members of the Court concluded that con 97. Two other amount expression subject did not even duct involved (Scalia Id. at 307-10 of the First Amendment. the protection JJ., Defendant does not Thomas, concurring). explain, sexual intercourse and understand, do not how public and we under the First Amendment can fare better masturbation A.M. than nude did dancing Pap’s deci- error to the trial court’s Defendant next assigns under ORS brought his to the charges sion on demurrer That statute 167.012, promoting prostitution. prohibiting in part: provides, promoting prostitution the crime of

“A commits person person promote prostitution, if, intent with knowingly: “(a) manages, supervises Owns,controls, or otherwise place prostitution prostitution

maintains a or a enterprise[.]” 167.012(1).“Prostitution,” turn, ORS occurs when “(a) person engages agrees The in or offers or engage in sexual conductor sexual contact in return for a fee;or “(b) person pays agrees pay or offersor a feeto

engagein sexual conductor sexual contact.” 167.007(1). purposes prostitution ORS For the stat- utes, “sexual conduct” refers to “sexual intercourse or deviate 167.002(4), intercourse,” ORS and “sexual contact” “any touching organs refers to parts of the sexual or other intimate person purpose of a not married to the actor for the arousing gratifying party,” the sexual desire of either ORS 167.002(5). argument

There is no that defendant’s conduct did promoting prostitution not amount to as defined in ORS 167.012. Defendant’s sole contention is that the statute vio- targets expression. I, lates Article because it According performers defendant, because the were engaged protected expression, promotion defendant’s expression protected by also I, must be Article section 8. argues simply

The state that defendant is incorrect asserting performers engaged protected that the expression, promotion much less that his of that conduct is protected expression any argues, as well. In event, the state promotion prostitution wholly contained within guarantee historical of free in Article reflected section 8. agree assuming that,

We with state even promoting prostitution protected expression, the fact wholly excep- remains that it is contained within a historical Regulation tion to Article section 8. of the “most ancient profession profession probably in the world”25is as old as the Deuteronomy e.g., See, 23:17-18. In itself. the context of legal system, Anglo-American it dates back least to White, Rudyard Kipling, In Black and century, no “femme I ordered that when Edward thirteenth city gener- See within the of London. should dwell coursable” ally Maitland, 2 The & Pollock Frederic William Frederick 1898).26 (2d History English Law, more, n 5 ed What 543 of solely “night target English them- did not the walkers” law promoted regulated As selves; those who the business. it also reported, “bawdy-houses” law, at were Blackstone common may “public upon nuisances, indictment considered to be and e.g., suppressed see, 168; and fined.” 4 Commentaries at be 1712) (husband (QB Rep Regina Eng and 91 334 Williams, v. renting jointly be for liable for out room to used wife held 1706) (QB Eng Rep prostitution); Regina Pierson, 91 333 (indictment upheld permitting for for room to be used prostitution). particularly colonies, as the devel-

In the American opment spurred development trade of ofmaritime the coastal eighteenth century, prostitution and main- cities in the bawdy-houses a common concern of state tenance of became governments. generally Freedman, See D’Emilio & local Sexuality History A in America at 50-52. Intimate Matters: of By century, every every major state mid-nineteenth city prostitution. keeping of outlawed the of houses See generally Friedman, Crime and Punishment American History 224. Examples statutes of antebellum state include (1854) pp (prohib

following: § 87, title Stat, 21, Conn 324-25 iting purposes keeping fame, “a ofill resorted for the house lewdness”); § prostitution, Ill, 30, 127, 174 or Rev Stat ch of (1845) keeping place (prohibiting “a house for the lewd fornication”); practice p § Iowa, Courts, 86, Laws Terr of Stat (1839) place (prohibiting keeping “a house or 165 lewd 26 Albus, of, among things, municipal ordi Liber collection other London 1419, reports proclaimed “no compiled in that Edward I nances “articles” residing brothel-keeper within the walls of the [or] common shall be courtesan City Liber Albus: The White Book City, imprisonment.” pain of under of of 1861). London, Riley II, similarly (Henry ed., proclaimed that Edward Thomas 239 bawd, scold, life, courtesan, or be resident in the Ward.” “no of lewd common woman II, During reign common Id. at 287. of Richard a woman found be a courtesan hand, cloth, striped carry required a white wand her and be taken was to dress in proclaimed pillory accompanied was be minstrels where her crime to a jail. Repeat people, was be marched off to offenders which time she after city. Id. at 395. required their hair cut were exiled from to have of practice fornication”); Me, Rev Stat ch 124, 9, 685 p § (1857) (prohibiting “a house keeping ill-fame, of resorted to for the purpose prostitution lewdness”); Mass, Rev Stat (1836) 130, 8, ch p § (prohibiting keeping “a house of ill fame, resorted to for the purpose prostitution or lewd- (1859) ness”); Minn, Stat ch 96, 9, 729 p § (prohibiting keep- “a house of ill ing fame, resorted to for the purpose prosti- (1860) tution or lewdness”); Laws, Pa IV, title 43, p § “a (prohibiting keeping common bawdy house, or place for the practice of fornication”); RI, Rev Stat XXX, title ch 216, 6, p§ (1857) “a (prohibiting keeping house of ill fame, resorted to for the purpose prostitution or lewdness”); Va Code, title (1849) 196, 10, ch p § (prohibiting “a house keeping ill-fame, resorted to for the purpose prostitution or lewd- ness”). was among states that recognized offense as a matter of statute. Rev Or, Stat Terr An Act to (1854) Crimes and Misdemeanors, ch p § Define (prohibiting “a house keeping fame, of ill resorted to for the lewdness”).27 purpose prostitution or The offense also was See, at recognized common law. (2 Mon) e.g., (1842) Ross v. Commonwealth, 41 B Ky 417 fine (upholding against individual who leased his house to another who used it as a bawdy-house); Smith v. State, 6 Gill (Md 1848) (even 425 if not a statutory offense, a leasing house for use as a bawdy-house indictable law); common (17 Pick) (1835) v. Commonwealth, 34 Jennings Mass 80 (keeping a house of ill fame is indictable both under statute (NY and at law); common The Erwin, People 4 Denio 129 1847) indictment (upholding out a leasing house to person who used it for prostitution).

Contemporaneous treatises —so often relied on by frontier lawyers legislators declared that the —likewise of houses of keeping was an prostitution offense at common See, law. e.g., Bishop, Commentaries on the Criminal Law § 379 at 419 (noting a keeping “bawdy-house” is an offense at common law); Russell, A Treatise on Crimes and (“It Misdemeanors at 322 is clearly agreed that a keeping bawdy-house nuisance, is a common as it the endangers century. Laws, VI, Oregon That statute survived well into the twentieth See XIX, VII, 2089, p title ch § and debauched dissolute together peace by drawing tendency corrupt an apparent and also has persons; of lewd- such an sexes, by open profession of both manners ness.”) Treatise on Wharton, in original); (emphasis an that it is (noting States at Law United Criminal lucre”). a of ill fame for offense house “keep indictable there no about what legisla- And was mistake A courts, talking about. tors, commentators prostitution.” was house of lewdness and “bawdy-house” “[a] (1828).28 “Prostitution,” Webster, An Dictionary American with than hint of turn, well understood —albeit more was body mean act or of offering “[t]he sexism —to practice men; intercourse with common lewdness an indiscriminate Id. a female.”

Thus, what ORS 167.062 what prohibits precisely at the time routinely universally prohibited states not—if — Oregon Constitution, section was adopted. statute “maintaining] place pros- modern prohibits 167.012(l)(a). titution.” also did the 1854 ter- Oregon ORS So other either statute or at every ritorial statute state common law. short, ORS

In of whether either 167.062 regardless ORS conduct or neither vio- prohibit expression, 167.012 of Article guarantee lates free expression Constitution. Nor does ORS 167.062 violate Amendment First guarantee free The trial court therefore did United States Constitution. err in defendant’s demurrer the indictment. overruling Affirmed.

BREWER, J., part dissenting concurring part. below, I dissent from

For reasons explained a wholly 167.062 falls within conclusion that ORS majority’s Con- I, to Article section historical written, protected 167.062, infringes ORS as stitution. procure; pro “bawd,” “[t]o the verb which meant The term derived from Webster, Dictionary English purposes.” American 1An vide women for lewd Language expression, in violation of Article 8. I, Therefore, section I would reverse defendant’s convictions for unlaw- promoting ful sexual conduct in a public However, show. for different reasons from those given I agree Article majority, section I, 8, does shield his defendant from conviction for promoting prostitution and, would affirm that accordingly, conviction.

Defendant was charged with and convicted pro- moting unlawful sexual conduct show, ORS public 167.062, and promoting ORS 167.012. He prostitution, in the trial argued court that both statutes are unconstitu- they tional in that violate free his expression rights under state and federal constitutions. Specifically, defendant argued and, that ORS 167.062 hence, is overbroad facially invalid under Article section and that both are statutes unconstitutional to his applied case. trial court rejected defendant’s as does arguments, majority here. As below, I explained would hold that ORS 167.062 unconsti- overbroad under tutionally and reverse defendant’s conviction under that statute.

ORS 167.062 provides, part: “(3) any person knowingly direct, It is unlawful for manage, present public finance live show in which the * * * participants engage in sexual conduct. * * * * * * *

“(5) used As this section unless context requires otherwise:

“(a) public ‘Live show’ means a show in which animals, bodily human beings, appear spec- or both before tators or customers.

“(b) any ‘Public show’means entertainment or exhibi- tion advertised or in some other fashion held out to be club, accessible or member of a whether or not charge an or other admission levied or collected and whether or not minors are admitted excluded.” 167.060(10)

ORS defines “sexual conduct” for pur- of ORS 167.062 as follows: poses

33 “ masturbation, means human conduct’ ‘Sexual areas or intercourse, any touching genitals, pubic or of the female, or the male or of human breasts buttocks or or members of the same female, alone between whether in an act of and animals sex or between humans opposite gratification.” stimulation or apparent sexual a presented is as to whether defendant raised question No show,” engaged or whether the performers “live public The statute. conduct,” as those terms are defined “sexual unconstitutionally is is ORS 167.062 whether only question defined in ORS because the “sexual conduct” overbroad 167.060(10) under activity expressive encompasses protected section 8. I, has addressed similar issues

This court previously Robertson, v. Or the test enunciated in State 293 and applied 402, (1982), P2d statutes and ordinances that con- 649 569 “adult entertainment.”1 Those earlier cases cern so-called Plowman, test in Court summarized the Robertson State (1993), 157,163-64,838 (1992), Or P2d 558 cert den 508 US follows: [Robertson], evaluating . this court a framework for whether “In established First, I, recognized a a law the court distinction violates Article section 8. speech writing on the or and laws that focus

between laws that focus content proscribing pursuit accomplishment or results. 293 Or at on 416-17. The court reasoned that a law the of forbidden type, former a law ‘written any “opinion” “subject” any directed to the or communi- terms substance cation,’ 8, violates Article section “ wholly scope within histori- ‘unless restraint confined some guaran- American cal tees offreedom of that was well established when first adopted guarantees expression then or demonstrably 412. in 1859 were not intended to reach .’Id. at results, type, can divided “Laws of the latter which focus on forbidden be effects, category categories. but further into two The first focuses on forbidden those ** * expressly prohibits expression Such laws are used to achieve effects. analyzed for overbreadth: “ however, proscribed speech writing, a include or even “When means * * * must be scrutinized to deter- law written to focus on forbidden effect appears privileged or mine whether it to reach communication whether interpreted “overbreadth.” ’Ibid. can be avoid such effects,but refer- on forbidden without “The second kind oflaw also focuses ring category, Of this court wrote: at all. “ effects, causing only against [a] [is] the forbidden ‘If statute directed causing by language gestures be person would effects accused such claim) vagueness could not con- (apart from a that the statute left to assert expression, stitutionally applied particular be to his words other contrary [A]rticle at 417.” section 8.’Id. that it was drawn and enacted (Emphasis omitted.) original; footnotes demonstrate how “sexual conduct,” as defined in ORS 167.060(10), to be treated under the framework. Robertson In order to put context, case into its I present proper legal review that case law in some prior detail.

In our initial opinion House, State v. 66 Or App 953, 957, 676 P2d recons 68 Or 681 P2d on other afpd grounds Or 698 P2d 951 (1985), we held that ORS 167.062 was overbroad because it prohibits by that is expression protected Article section 8. In that case, a male danced tables stripper among while audience members genitals touched his buttocks and and placed money in Id. his at 955-56. G-string. We observed: ballets,

“In operas, dramas, musicals and whether tragic, satirical, performer, or comic one either in human costume, may buttocks, animal touch the or geni- breasts of performer. tals another other person may, touched performance, of part respond per- so that reasonable son in the perceive performer audience will that sexually touched gratified. is stimulated or aTo reasonable person, touching is ‘in act apparent an of sexual stimu- gratification.’ lation or That is message per- that the convey. formers seek to is touching It that the statute makes criminal. It also that protected section 8. Live that public shows would fall under sweep Shakespeare’s the statute include ‘Romeo and Juliet,’ Pacific,’ ‘Hair,’ the musicals ‘South ‘Oh! Calcutta,’ Lake,’ Swan,’ the ballets ‘Swan and ‘Leda and the and Tennessee Williams’ dramas ‘Sweet Bird of Youth’ and ” ‘Cat a Hot Tin Roof.’ Id. at 958.

On reconsideration, we narrowed our holding case, facts of the statute concluding portion “any area concerning touching genitals, or but- pubic * * * tocks in an act of sexual stimulation or apparent grati- fication” was but portion overbroad the statute was severable from portions remaining concerning House, “human masturbation” and “sexual intercourse.” 68 Or App review, at 365. On Court Oregon Supreme to reach declined the constitutional question, declaring instead that the state had failed to an element of the prove crime because there was no evidence that “defendant ever gratifi- sexual stimulation or in an act of apparent engaged 82, there “was no evidence that House, 299 Or at cation,” the touch- gratified by was stimulated sexually defendant * * customers Id.2 of women ing to our constitutional We have adhered subsequently Or Gatewood, City App in House. In Portland holding (1986), we distin- (1985), rev den 300 Or 708 P2d 74, from the indecent exposure an ordinance guished prohibiting to a nar- House, issue it was susceptible because statute We that would render constitutional. interpretation rowing under in House directly that “the statute consideration noted No construction was speech. limiting burdened primarily Or Portland, Id. at n 5. In Sekne v. City App possible.” (1986), (1987), we 637, 726 P2d 959 rev den 302 Or 615 that “[n]udity cited House and Gatewood the proposition does not take dance out of the realm of protected alone We concluded that the ordinance at issue expression.” the course of a case, prohibited exposure which genitalia or floor to a inter- stage show, narrowing was susceptible pretation pro- thus was overbroad because it reached Maynard, tected Id. at 640. in State v. expression. Finally, 138 Or 910 P2d 1115 vacated and remanded 964 P2d 264 to on 168 Or (1998), adhered remand 118, (2001), 5 332 Or P3d 1142 rev den we App House, Henry, 510, relied on as well as State v. 302 Or (1987).3 to Maynard P2d 9 our particularly important in the Maynard case because the decision on analysis present remand was made in of the Court’s light Oregon Supreme test in pronouncements on Robertson application Stoneman, 323 Or P2d 535 State Maynard, In at issue concerned furnish- statute obscene materials the same incorporated minors ing of “sexual conduct” that is at issue here. ORS definition Linde, Campbell, joined by only in the result Justice Justice concurred by majority. petition granted the review in “[w]e reached He wrote that this by Appeals. I case to consider constitutional issue decided the Court of would J., concurring). Appeals (Campbell, Court of on that at 82-83 affirm the issue.” Id. 3 Henry, facially a statute In the court struck down unconstitutional prohibited concluding of obscene after dissemination materials exception expression. 302 Or at section contained no historical for obscene 515- 25. 167.065(1). opinion, In that, our first we noted after House, only the definition of “sexual conduct” included “human mas- App turbation” and “sexual intercourse.” Or at 652. Nonetheless, we concluded that a content-based restriction distributing depicted on materials to minors that “sexual con- justified by duct” could not “be either a historical by purpose preventing an identified actual effect or harm.” Id. at 656. Oregon Supreme

The Court remanded Maynard light this court for reconsideration in of Stoneman. The court purpose pre- in Stoneman held that a statute could have a venting harmful effects even if it “did not describe the com- specifically munication, the forbidden, commerce which is light in terms of harmful effects.” 323 Or at 545. In Stoneman, we concluded in our second in Maynard decision 167.065(1) did, fact, that ORS forbid harmful effects. Maynard, at 133. But we continued: prohibit expression pro “However,the statute does that is may judicial through tected, and it not be narrowed inter pretation remedy Therefore, that defect. hold we 167.065(1)‘impermissibly right speak, ORS restricts the print freely any subject write, or on whatever under Article Constitution. It is uncon [v. stitutional.’ Fidanque Oregon Govt. Standards and [969 (1998)]rid. Practices], [1,]9, 328Or P2d 376 necessarily These cases lead to the conclusion that 167.060(10), “sexual conduct” as defined in ORS even as lim- may expressive. ited the court in be The state does House, argue appeal. urging Rather, otherwise on us to disa- argues proper line cases, vow House the state that the question is whether the statute at issue focuses con- tent or whether the statute in fact focuses on 167.060(10) posits state that under ORS “sexual conduct. conduct,” “sexual intercourse” and “human masturba- i.e., necessarily primarily tion” conduct, and the fact that it may expressive under some circumstances be does not mean proscribing facially that a statute the conduct is invalid as expression. directed the content of argument goes. sound, The state’s far as it as nothing inherently necessarily expressive There is about agree state’s with the I or masturbation. sexual intercourse general cannot proposition forbidden conduct otherwise protections I, Article section bring within itself person performing conduct merely the forbidden because generally expression. doing See as a form so Huffman Logging P2d Wright 445, 452, Or Wade, Co. (a (1993) punishable engaging person’s con- reason expression, protected conduct into not transform duct does punishable speech accompanying conduct transform nor does such conduct proposition, protected expression). That unremarkable into issue here. the statute at however, does not save prosecuted did defendant was under which The statute attempt prohibit of sexual in the form “sexual conduct” prohibited pres- generally; masturbation intercourse or participants public in which of a “live show entation * * * 167.062(3) (emphasis engage added). conduct.” ORS sexual gravamen the offense is not the “sex- short, In perfectly circumstances, is which, under most conduct,” ual only performed when, when, lawful, but it is conduct public “live above, As noted of a “live show.” in the context spec- performers appear public before show” is one which 167.062(5)(a). “public Moreover, a ORS tators or customers. something provides “entertainment or exhibi- show” is 167.062(5)(b). conduct,” Thus, while “sexual tion.” ORS inherently expressive or com- statutes, is not defined in those spec- performed before conduct” that is municative, “sexual inher- or exhibition is for entertainment tators or customers ently communicative. only prohibits sexual conduct sum, ORS 167.062

In public that sexual It is irrelevant oflive shows. context inherently necessarily expressive, because conduct is not general. prohibit conduct in does not the statute only prohibit in the context sexual conduct seeks statute inherently shows are show,” and live a “live expressive. in terms directed is “written Thus, ORS 167.062 subject Robertson, communication, of’ a to the substance it falls unless and violates exception Arti- wholly historical a well-established within 8.4 cle section concerning present “forbidden argument case no in the makes The state

effects.”

The state that the House line of cases suggests is, should be overturned there fact, because in a historical to the of Article exception protections section for live pub- lic shows sexual conduct. The state an involving to points statute, Oregon territorial An Act to Crimes and Define Misdemeanors, and Regulate Criminal Proceedings, chapter 11, section 8 (1854), provided: which

“Every person fame, who shall keep a house of ill purpose lewdness, resorted to of prostitution or on conviction, punished by shall be imprisonment in the county jail year, not more than one nor less than six months, hundred, or fine not exceeding five nor less than one hundred dollars.”

The Henry, however, court in rejected very similar noted, argument. As involved Henry of a constitutionality statute of prohibiting dissemination obscene materials. 302 Or 512. The state that argued a historical of protections existed as to such mate- rials, of given existence an 1854 statute that prohibited distribution of certain materials “containing obscene lan- or obscene guage prints, or other pictures, figures, descrip- tions, manifestly tending corruption morals youth Id. at 522. The court rejected argument, [.]” that noting that the statute contained no question definition obscen- ity it concluding “certainly any does not constitute well-established historical exception to freedom of expression ** * is way in no equivalent libel, statutes punishing and the like.” Id. perjury, forgery A similar exists here. The 1854 problem statute contains generic reference to “lewdness.”5 The question “lewdness,” term like the term in Henry, “obscene” discussed is not susceptible ready definition. Lewdness has been lust; defined as unlawful indulgence fornication, “[t]he or “[l]icentiousness; as well as adultery,” shamelessness.” Noah Webster, An American Dictionary the English Language (1828). an According early law lewdness was dictionary, term for general “[a] conduct sexual involving expressing circumstances, desire in unlawful that offend ways or tend to demoralize others.” 2 Law Abbott’s issue, “prostitution” Insofar as is at I address it the discussion below. it is conduct is lewd because If sexual Dictionary, because it is that makes it unlawful then a statute unlawful, as to what spe- little guidance circular and provides lewd is intended to be prohibited. cific conduct was a cluster of early public majority, focusing The and an Oregon other jurisdictions statutes from “lewdness” the same acknowl- concerning subject, territorial statute definition.6 subject easy the term is not edges that, by saying to avoid attempts problem majority to conclude “that easy [the lack of clarity, despite conduct at issue in this included the sort of lewdness’] term intercourse and masturbation.” case, is, can sure of no such thing. at 13.7We be assumes that the con- majority In the first place, that in the at issue here was as term was used “public” duct it refers. It seems indecency statutes to which many public at issue here —sexual con- that conduct of the sort unlikely that duct that occurred in a small room an establishment who have to be there —is only by patrons paid can be seen that statutes prohibiting of conduct type “open” “public” were intended to If sex- nudity indecency prohibit. to between adults in rooms rented consenting ual activities consid- them in establishments be open unlawful, hence then married every couple ered “lewd” and house relations while staying boarding that had sexual a crime so. That is by doing inn would have committed the least. indecent unlikely, say Legislation prohibiting hand, do the statute at which has to with nothing exposure (and to) consenting between visible expression involves an audience. unwilling rather than the adults, subjection Oregon statute is An Act to Crimes Misdemeanors The territorial Define majority’s Proceedings, chapter Regulate section 8 The Criminal Constitution, adoption includ enacted after the reliance on statutes 1845-64), (Deady Oregon, chapter ing section 632 General Laws was misplaced. that were on the books when the constitution is While laws analysis, provide appropriate laws enacted adopted context for a constitutional significant light framers’ intent. shed no on the afterward really majority altogether clear, presume Although I that the does not it is not activity any “sexual suggest involved in this case constituted that mean clear, my premise I that the sexual conduct defendant So that note intercourse.” presenting defined was “masturbation.” That term is not was convicted of statute. variety “public indecency” Thus, the on of “lewdness” statute majority which the relies does establish historical exception wholly which into ORS 167.062 fits.

Virtually examples majority all of the other that the cites as evidence of the existence of a historical also legislatures point. formerly miss ized fact that criminal- adultery example, nothing fornication, tells us proper analysis may about the this case. Whatever we prohibitions, seriously think of such no one could contend they expression. agree that majority Likewise, focus I with the prostitution has been criminalized since time beyond memory; accordingly, no court ever has held that prostitution expression amounts to that is entitled to consti- protection. legislature explain tutional As I below, the law- fully may prohibit promotion prostitution girl” occurred in connection with the “two shows. majority require-

Second, the has misconstrued the expression wholly ment that a restraint on be contained exception. requirement within a historical That is not con- prohibitive cerned with whether the reach of a statute be can reduced to a rotten core of uniformly vile the framers Rather, would have condemned. it is concerned “scope expressed with restraint,” whether the ofthe as in the “wholly exception. statute, confined” Plowman, within respect 314 Or at Or at 163;Robertson, 412. Even with simply what remains ORS 167.062 after House, is not recognized many stage per- the case As here. we in House, from formances—both modern and earlier eras —have con- yet generally recognized being tained sexual scenes are literary commonly works of and artistic merit that would not regarded depicting indulgence be as the “unlawful of lust.” explicit House, Under the Or 958. terms of ORS performances 167.062, some of those be would unlawful participants engaged because the in “masturbation” as the 167.060(10). Broadway production term is ORS used in The example. may stage of “Hair” current hit is one The “Freak” be another.8 House, above, opinion In our on reconsideration in as we struck a noted down * **

part regarding “touching genitals of of or ORS 167.062 the whether alone reflects such controversy over performances

The of society’s sense of segment collision between one classic obscenity. of and another’s perception acceptable expression However, new. is nothing debate such matters over True histor the view untenable. majority’s illustrates why of free guarantee expres to the constitutional exceptions ical not us in a and fraud —do trap sion —such as peijury, forgery, Instead, reflect timeless devising. they time of our own warp there values whose is so pedigree patent and unstinting rs.9 or contou Contrast conjure is no occasion to their meaning historical excep those with majority’s proposed examples tion, depiction is so broad to contain which apparently television, nudity, whether any or of human presentation theater, or Such a makes no sense postulate simply a movie. standards of tolerance. contemporary in light

I not shrink from the that —as majority’s point do doctrine elaborated in Robertson —the historical eighteenth- focuses on the intentions of nineteenth- framers: all the more reason to century apply constitutional no Although many the doctrine with surgeon’s scalpel. indeed, some and, visionary doubt were admirable people, between members of stimulation intercourse” and “masturbation” reflection, includes “stimulation other that the tiated from makes worth be identical The court concluded that Tremblay R., lish criteria for I find that distinction dependent in a school leave at will. The court only Webster’sThird New and the clients knew perplexed by gratification,” consenting Although bodily constitutionality it is yard upon “touching those or contact”). noting gratification” entirely their ^[1993] adults whether ORS involved here determining “indecency,” the public park. —if majority’s jurisprudence Int’l the same what to unconvincing. involving 2 SCR To the further present unclear 167.062, only passing Dictionary, genitals but person acts were expect, extent that noted sense of historical was how or nonetheless (except much less portions of the touching considered opposite far different from the same scarcely “masturbation” can be whose that such a * * * consented to the —that for the activities in an we indecent, noting genitals sex (unabridged why did binds organs our may genitals act * * * statute performance in not obligation. Canadian it should be differentiated. lawfulness Canadian have us, concludethat were touched was ** * in an act of apparent our common in a activities, been ed in the achieved manual or meaningfully neighbors likely 1993)(“masturbation” live that both the dancers In the unconstitutional. suggesting Supreme Court, activity sexual stimulation activities a closedroom with “two performance apparent and were both the quest legal girl” enjoying carried in House virtually differen- to estab heritage shows). “sexual sexual free to would was See out On it, politicians practiced of the era also held and intolerant, nar bigoted spate row-minded, and beliefs.10If we find a of anti quarian American and colonial statutes and ordinances ban ning plays altogether, yet and theater have we found another exception expression? historical historical to free Our adherence to

baggage inevitably of the latter sort will lead to results that make no sense.

It is an say insufficient answer to that criticism to merely following that we are where Robertson leads us. The exception byjudges historical explain doctrine was devised appeared what protections to be conflicts between the by age-old legislative afforded prohibi- our constitution and seemingly protections. tions that nothing contradicted those There is requires in Robertson that us to enshrine, as an exception every type to Article regulat- I, commonly of statute ing expression eight- was on the books in the eenth and nineteenth centuries. Rather than extend the doc- beyond explicitly trine defined sorts of immutable crimes listed in Robertson, the courts would do well to examine the constitutionality against legislation burdening expression of other logical namely,

a more legis- standard, whether the permissibly targeted lation has the harmful effects of such expression.12 approach may That have been foreshadowed in Witness the 1849 prohibited any territorial act “negro or entering residing mulatto” from or “within territory.” the limits of this Laws of (1850). Oregon, p 161 § thought only hindsight: The is absurd “Until professional the 1760’s no actors, native singers, theater existed —no dancers, playhouses. and no But the demand society. that did exist divided The perennial objection to the supported by theater —harm to morals —was local laws, Congress passed and the Confederation a resolution that classed under ‘extravagance dissipation’ gambling, horse-racing, and cockfighting, and all plays.’

‘shows and dissipated “The Douglass English troupe were nonetheless served an with David actor-manager. repertory He toured the colonies twice with his English plays by Centilivre, Farquhar, Colley Cibber, Lillo, Mrs. George interspersed operas with Gay’s ballad such as Village Arne’s Love in a Beggar’s Opera. Shakespeare, heavily improved Some of and sometimes slices, figured offered in thin programs. also people of Charleston plays too, perhaps why loved Boston did passed should a law have been prohibit Jacques Barzun, there in 1750 to Decadence, them?” From Dawn to Life, 500 Years Western Cultural 12Although them, this is not the time to suggest discuss I do not that the harm principle practical ful effects However, is free of its own pitfalls. weaknesses apply declined Court Stoneman, where prohibiting a statute to uphold doctrine historical concluded that but, instead, in child pornography commerce in enacting purpose and permissible evident the legislature’s of children. exploitation the sexual was to prevent the statute no harmful state makes at 545-47. Significantly, We should of ORS 167.062. in support argument effects it. and be done with that concession accept erudite and while analysis, Third, majority’s to terms to come in its failure extensive, notably lacking con- Henry. Henry held in Court Supreme with what videos portraying of books and the dissemination cerned Robertson, Following 302 Or at 512. “sexual conduct.” expressions as “whether ‘obscene’ court framed the question solicitation ‘perjury, such historical exceptions fall within theft, crime, forgery in some forms of or verbal assistance ” Or at Henry, variants.’ and their contemporary fraud 412). The court undertook Robertson, 293 Or 515 (quoting decency.” against public review of “crimes an extensive that “from our at 516-18. The court concluded 302 Or Henry, statutes, American we cases and of the English review or obscene sexually explicit on conclude that restrictions early at the time the not well established expressions Id. at 520 (emphasis were adopted.” freedoms of expression added). here done, majority simply all is said

When in history version of and follows its own holding ignores histori- was, fact, a well-established that there concluding or 8, “sexually explicit I, to Article cal exception our only not sweeps away The majority obscene expressions.” House, ignores Supreme but also own precedent result. to reach its desired Henry, in order holding Court’s bears repeating ultimate conclusion Court’s Supreme here: and American reviewing English as we did

“We conclude and obscene sexually explicit history that restrictions at the established adults were well between exception practical conceptual flaws of the historical the most obvious lacks doctrine. adoption Oregon time of the of Article section of the Constitution.

[******] *“** jn anyperson say, print, this write, read, state can anything consenting though or sell show that to a adult even expressionmay generally universally be considered added). ’’Henry, (emphasis ‘obscene.’ 302 Or at holding consistently Supreme That has been affirmed e.g.,Stoneman, City see, Court, 6; 323 Or at 541 n Portland Tidyman, 179, 759 P2d 242 and this disregard distinguish by unearthing court is not free to equally upon different, obscure, but territorial statute which spin history. beyond a different view of It is this court’s authority precedent to refuse to follow ground disagree Court on the that we with it.

Finally, majority’s linkage pub- of “lewdness” to nudity incongruous suggests many lic is also in that it expression protected forms of under the Amendment First protected by majority If, are not appears section 8. as the suggest, legislation proscribing “public nudity’ guaran- constitutes a historical to constitutional expression, tees offree the United States Court has yet grasp repeatedly to that fact. The Court has held cus- tomary, barroom-type dancing expressive nude is conduct protection that is entitled to some measure of under First City Pap’s A.M., Amendment. Erie v. 277, 289,120 529 US (2000); 1382, Theatre, S Ct 146 L Ed 2d Barnes v. Glen (1991). Inc., 560, 563, 2456,115 501 US 111 S Ct L Ed 2d 504 government may fact, Amendment, In under the First prohibit sexually explicit dance movements as a means of regulating sexually City oriented Schultz v. businesses. (7th 2000). Cumberland, F3d Cir It seems highly unlikely, say Oregon Supreme least, to that the Henry, any subsequent decisions, Court or in of its meant say provided meager protec- to that Article section more expression. tion for demonstrating

The that a restriction on burden of expression wholly falls within a historical is a heavy Frohnmayer, 372, 376, one. Moser v. 845 P2d majority Neither the state nor the has met it at the content of here. Because ORS 167.062 is directed constitutionally expres- and it prohibits protected Further, not excise the sion, may it is overbroad. because we an intact criminal and leave prohibitions unconstitutional judicial statute not be narrowed offense, may through it violates Accordingly, to that defect. remedy interpretation of the Constitution. 167.012, that ORS I turn to defendant’s argument is unconstitutional prostitution, prohibiting promotion 167.012(1) provides, as case. ORS applied present part: person promoting prostitution

“A commits the crime of if, promote prostitution, person with intent knowingly:

“(a) Owns, controls, manages, supervises or otherwise place prostitution maintains or a prostitution enterprise [.]” 167.007(1)

ORS provides:

“A person prostitution commits the crime of if: “(a) person engages agrees in or offers or engage in sexual conduct or sexual contact in return for a fee;

“(b) The person pays agrees pay or offers or a fee to engage in sexual conduct or sexual contact.”13 167.012(1)

In of his contention ORS support him, unconstitutional defendant applied argues: “The conduct that in defendant’s convictions same resulted under ORS 167.062 resulted in his conviction under also Therefore, if the ORS 167.012. even described conduct defendant prostitution, meets technical definition of judgment still entitled to because the dancers acquittal engaged protected expression.” purposes prostitu In contrast to the statutes discussed above and for 167.002(4) statutes, tion “sexual conduct” as “sexual intercourse or ORS defines statutes, prostitution purposes deviate sexual intercourse.” For of the ORS 167.002(5) “any touching organs contact” as of the sexual or other defines “sexual person purpose arousing parts of the actor for the or intimate not married to gratifying party.” the sexual desire of either argument Defendant’s fails. The conclusion that ORS relating facially 167.062, to “live shows,” is overbroad any way imply every type per- does not in that of conduct protected formed the course of such a show is somehow under Article section of the Constitution. light Viewed in the most state, favorable to the supports findings performers evidence in the record that the girl prostitution, in the “two show” committed acts of promoted defined in ORS 167.002 and that defendant illegal expressive is, conduct: that aspects. conduct that is with no engaging punishable above, As noted in otherwise expressive engaging pun- reasons, conduct in otherwise protected expression ishable conduct and time, at the same punishable does not somehow transform the conduct into protected expression. Wright Logging, Huffman protestors trespassed at 452. In case, Earth First! property against logging in the course of a demonstration practices. trespass Id. at 447. The reason for the concerned political expression, trespass and, in fact, in the course of the protestors hung expressed political a banner that mes- sage. message “[t]he Id. held, The court however, sought convey by defendants their conduct, the reason for spoken accompa- conduct, their and the and written words nying their conduct did not transform defendants’ conduct speech.” trespass short, into remained the Id. at 458. In the elements of a regardless any accompanying expres-

same, speech political sive motive.

Similarly, promoting prostitution the elements of constituting prosti- met here, whether the conduct promoted by persons engaged tution defendant involved two alley in sexual conduct in a dark or in a room, motel or two persons engaged in the same conduct front of customers— private “gentlemen’s an effect, audience—in a room of a way, pun- club.” Stated another the statute does not seek to promotion prostitution only prostitution ish the when the occurs in front of an audience or because it occurs in front of punish promoting Rather, an audience. it seeks to all acts of prostitution regardless pros- reason for the ostensible promotion it, titution or for the of whether that reason is sexual or artistic monetary gain, gratification, expression.14 above, I, 8, As discussed under Article section a person’s in for otherwise con- expressive engaging purpose punishable duct does not transform that conduct into protected expres- sion. 317 The Wright Or at 454.15 trial Logging, Huffman court concluded 167.012, that ORS for the correctly providing crime of was not promoting prostitution, unconstitutional applied to defendant.

I concur in respectfully part part. in dissent Wollheim, J., joins in this opinion.

ARMSTRONG, J., dissenting.

The majority 167.062, concludes that ORS which prohibits show, sexual conduct in a live does not vio- late I, 8, Article section Constitution, of the Oregon Oregon constitutional guarantee free It expression. reaches that conclusion ground on the that 167.062 ORS fits Judge Armstrong many good points While makes about Robertson case dissent, analysis constitutionality in his unconvincing. his of the of ORS is 167.012 correctly posits engage expressive violating He those who conduct while expressive liability, law that noting is not aimed conduct are not immune from person that “a performance who commits murder in a theatrical is liable for that though solely crime expressive purposes.” even the murder was committed for (and App (Armstrong, J., dissenting). prostitution Or at 54-55 He chooses to treat promoting prostitution) performance “qualitatively in the course of a as somehow I, purposes 8, analysis. different” from murder for section of Article Id. at 55. He * * * that, produce “[i]f states it lawful to is film or a live show * * * conduct, apply includes prostitution then cannot the state laws to paid performance.” make performers that conduct unlawful when are for their Judge To Armstrong positing drawing Id. the extent that is a distinction based on whether problems, respectfully conduct is done for a fee I creates constitutional disagree. performance Prostitution that is not done in course of a theatrical may lawfully people engage long involves the same “conduct” which so as it is not (defining prostitution). Similarly, entirely done “for a 167.007 fee.” ORS it is lawful give up baby adoption. felony, however, baby adop It is a sell a serious parents. selling (buying felony). legis tive ORS 163.537 a child is a Class B The may lature running define crimes based on or not a whether fee is involved without illogical prostitution afoul of posit the constitution. It is in the course of a performance simply theatrical cannot conduct be a crime because sexual that is not prostitution may lawfully performance. occur in the course a theatrical theory, logical extreme, Defendant’s lead carried to its would to the conclu political physically opposing sion that a candidate who assaulted an candidate dur ing assault, prosecuted the course of a live debate could not be for the because a 8, political I, protected expression debate constitutes under section Article disagreement expression political assault was an between the candidates. that was well established a restriction within adopted section and that the state 1859 when adoption demonstrably intended to survive was majority wrong. guarantee. speech The historical free that ORS 167.062 comes on which relies to conclude record exception equivalent to the record that a historical within Henry, Court held in State v. (1987), Maynard, Or and that we held in State v. P2d 9 (2001), rev 332 Or 137 was 5 P3d 1142 den to establish an under Article insufficient sexually explicit against mate- laws the distribution of 8, for majority’s Consequently, the adults and to minors. rials to the decisions in this case cannot be reconciled with decision Henry Maynard. majority and, Furthermore, the misunderstands exception misapplies 8, for I, the under Article section hence, demonstrably intended that were well established and laws guarantee. adoption speech test the free The to survive the (1) two-part requires the is a test. It state for the expression on it relies that the restriction on which establish (2) that the established 1859 and to demonstrate was well adoption of the consti- was intended to survive the restriction guarantee against that 402, the enactment of laws tutional expression. e.g., See, Robertson, 293 Or State v. restrict (1982). majority part stands the second 412, 649 P2d 569 requiring the state to test on its head. Rather than intended to survive that the restriction was demonstrate majority guarantee, adoption looks to the historical ofthe guarantee if it was record to see demonstrates App displace I Or at 17-19.As the restriction. 181 intended way greater explain that the detail, that is not the will exception works. majority Judges Brewer and Wollheim

Both the violating for ORS that the conviction of defendant conclude prostitution, prohibits promotion does 167.012, which disagree. respectfully I, of Article section 8. I not run afoul Although people generally liable for criminal acts can be held activity, engaged expressive crimi- some while committed engaged constitutionally applied people be nal laws cannot activity. expressive case, of this ORS In the context is such a law. 167.012 provides that I, 8,

Article section restraining passed “[n]o the free shall be law speak, print restricting right opinion, write, every person freely any subject whatever; but shall be right.” responsibleforthe abuse ofthis prohibits sexual conduct The state contends that the law 167.062, is a law that restricts con- show, in a live ORS expression and, hence, is a law that is valid duct and not under Article majority not resolve that

I, section 8. The does suggests, however, that the state could be correct. issue. It majority’s App this issue at 7. The discussion of 181 Or thoroughly betrays relevant it misunderstands how analysis. 8, issue under Article section

The threshold challenged expression. law restricts The issue is whether particular expression protected by Article not whether against e.g., See, Robertson, restriction. 293 Or at I, section 412, 436-37. The says:

majority It confuses those two issues. WrightLogging [v.Wade, Co. 317Or “AsHuffman (1993),] merely engaging clear, 857 P2d 101 duct to attract the attention of an audiencedoesnot neces makes in con sarily expression. protected transform the into conduct example, Performing Homicide, is conduct. in front protected an audience does not transform it into expression.” at 7. generally does not immunize liability people engage who from criminal conduct activity expressive liability imposed is under criminal if apply irrespective proscribed con- that of whether the laws why trespass expressive purpose. That is duct serves an punished Wright Logging even Co. could be in Huffman though trespassed ideas, did so to communicate those who why apply against to a murder would and that is law production. theatrical except against no law murder

However, if there were prohibited then the show, in a live a law that murder restricting be a law murder in a live show would law imposition expression. of the That is because that restricted restriction on whether would conduct served an depend means which that the focus of the law expressive purpose, rather restricting would be on than on expression preventing murder, because murder would otherwise be lawful. Of course, I, the law be valid under Article might section if it met the criteria that laws restricting expression must meet in order to be valid under that but it still provision, would be as a law that restricts analyzed expression. Judge Brewer makes that in his at 36- precisely point opinion, (Brewer, J., concurring part, dissenting and he part), ORS 167.062 right. prohibits conduct in a live public aside the show. issue of Leaving payment performers, the sexual conduct that the statute prohibits conduct that is otherwise lawful adults. among consenting That means the statute to restrict operates conduct if the only conduct serves an expressive purpose. Consequently, statute restricts expression.

Because ORS 167.062 is a law that restricts expres- sion, must be evaluated validity its under the standards to such laws. ORS 167.062 is not a law that focuses on apply the effects of the prohibited expression, because the state need not establish that the expression any effect, had harm- otherwise, ful order to convict under the statute. people of the statute Consequently, validity on whether depends it comes within a restriction on was well established when the state Article I, adopted that was intended to survive the demonstrably adoption See, Robertson, 293 Or at 412. provision. e.g., concludes that ORS 167.062 is such a majority law. It marshals as for that conclusion a of law support body that restricted and sexual nudity conduct both before and after the of Article section 8. For a of rea- adoption number sons, that of law does not establish that ORS 167.062 body a historical comes within afforded exception protection free section 8. expression by The most obvious reason that it does not is that of law on which the relies is body majority indistinguishable from the of law that the Court in and we body Henry a historical Maynard rejected establishing mate- prohibit sexually laws that distribution explicit rials to adults and minors. The traces the restric- majority which it to tions on relies a 1663 case Sir English involving Charles Sir Charles Sedley, Sydlyes Case, Eng Rep (KB 1663). 181 Or at 9-10. That is same that App case identified as the source of the commonly common-law restric- See, tions on obscene expression. e.g., Maynard, App (Landau, at 164, J., 178-79 there are dissenting). Although differences the details of the various laws that allegedly the historical at issue comprise Maynard, Henry, case, and this those are differences To legally insignificant. that extent the relevant targeted restrictions expression, their was to restrict purpose objectionable expression discourage order to or con- prevent objectionable sexual duct. words, In other restrictions to “a uni- sought impose form vision on how human should be sexuality regarded portrayed.” Henry, 302 Or at 525. The Court held in Henry that law body that to vision sought impose that did not constitute a historical exception under sec- Article tion 8. Until the Supreme Court overrules Henry and we Maynard, hold, overrule we cannot does, as the that majority ORS 167.062 comes within a well-established restriction on that expression was intended to survive the of Arti- adoption cle I, section 8.

The majority’s historical analysis is flawed for other reasons as well. It lumps laws together on conduct with laws on Or expression, see 181 9-15, and laws that to sought protect viewers unwilling and children against exposure sexually explicit with laws that sought prevent from everyone being to that see exposed id. expression, does Again, analysis not work that way. The laws that matter purposes for historical under exceptions are laws whose is to A purpose restrict expression. law will murder that against prevent productions theatrical murders, feature actual but it is not a law specifically restricts expression. the laws cited Consequently, irre- majority involved restrictions sexual conduct of whether the was spective conduct presented expressive are irrelevant to whether there purposes excep- is historical tion here, at issue is the applies prohibition which of sex- in ORS against presentation 167.062

prohibition in a live show. ual conduct necessary distinguish, court Similarly, sought protect did in between laws Henry, unwilling offensive sexual, similarly excretory, viewers against sought everyone against and laws that to protect expression narrowed, focus is See 302 Or at 525. When the Henry, it. to pre- laws from be, sought prevent people it must to that a audience, to senting sexually explicit willing performances that at are indis- evident, the laws issue again, it should be Henry Maynard from the laws at issue in tinguishable in order sexually explicit expression that to restrict to sought sexual behavior. a uniform vision acceptable promote that ORS 167.062 comes within a Those laws do establish afforded free protection expression historical section 8. I, Article also fails that majority’s recognize The approach 8, con- I, is under Article section between there a distinction and other laws that do expression laws that restrict ventional takes The that the court established Robertson analysis so. I, 8, at value recognizes text Article section face a against broad provision imposes prohibition that laws restrain or restrict expression. enactment of that not be however, that that could prohibition court recognized, be because it would mean there could no literally, applied and the court did not expression, law in restricted I, 8, was intended to have that effect. that Article section believe conflict apparent The court resolved between restric- I, and the that some 8, of Article section principle text familiar by recognizing on are expression permitted tions restrictions on among expression: distinction three-category (1) restriction on come within well-established those that survive the was intended to demonstrably expression (2) I, 8; those that focus on the Article adoption (3) those that are not expression; harmful effects are under subject challenge directed at but expression 8, expres- are to restrict they section when applied 417 & n 11. Robertson, 293 Or sion. See that the first fails appreciate What majority that come well-established laws, those within category historical to a further division between exception, subject laws that restrict and other laws conventional that do so. In its decision in Robertson on summarizing statute, of the coercion ORS 163.275 constitutionality the court explained: recapitulate,

“To we believe that the constitutional write, freely any subject what right speak, print ever in article guaranteed section was not meant to relevant to immunize the use of words in some respects [(1981)]. said, ORS 163.275 As we have one of these is the use of words in the course of been a conventional crime indisputably what would have Oregon’s Rights

when Bill of was adopted in or in the course of similar kinds of conven tional crimes that lawmakers from time to time enact.28

“28 we refer to crimes ‘conventional’ so imply as not to that constitutional freedom expression today does not extend to crimes known before the Bill of Rights, such as libel, seditious or criminal that restrained freedom of disclosure and debate.”

Robertson, 293 Or at 433 & n 28. As that statement indicates, restrictions on expression embodied in historically estab- lished conventional crimes survived the I, of Article adoption section 8. However, restrictions imposed by historically established laws whose was to restrict purpose thoughts ideas did not necessarily survive the adoption of the provi- sion. The state must demonstrate that they were intended to survive the adoption.1

As Robertson and other clear, cases make conven- tional crimes are those that restrict expression prevent identifiable, tangible harm, such as laws against perjury, fraud, forgery, solicitation or crime, verbal assistance in etc. expression harm, The distinction makes sense. To the extent that causes legislature impose is free to write laws that restrictions that focus on that harm. See, e.g., Robertson, problems by expression 293 Or at 412-18. Most caused can be way. Consequently, legislature generally addressed in that does not need to exceptions authority look to problems historical as a source of for laws that address by expression. where, here, caused That is even more true as the function of the (and people’s thoughts claimed historical was to control and beliefs con behavior) by controlling expression comitant they exposed. to which were The I, point prevent legislature whole of Article adopting section is to from laws expression believe, people yet that restrict in order to control what think and majority upholds precisely a law in this case that does that. 412.

See, Or at Crimes such seditious Robertson, 293 e.g., that restrict to control libel and criminal libel expression at 433 n 28. The and ideas are not. Id. & statute at thoughts ORS restricts the sexual content here, 167.062, issue which viewers, to an audience adult willing of shows presented the latter law. type turn, establishes, equivalent that laws

Henry 167.062 that with adopted contemporaneously ORS were that those I, section are insufficient to show laws Article adoption intended to survive the section 8. restrictions on legislature adopted The territorial Oregon and 1855 the Oregon legisla- obscene in 1853 statehood, so after see General Laws just ture did 48, 637, (Deady 1866), Crim ch ed. 1845-1864, Code, p § the existence of those yet Henry court held laws establish survived the free they adoption failed to guarantee: speech ex rel Pub. Co. Oregonian

“As we cautioned in State Deiz, 277, 284, ‘[contem- Or 613 P2d 23 necessarily legislative actions should not be poraneous construing princi- weight much when constitutional given are with Constitutional draftsmen concerned broad ples. principles ” significance.’ long-range 302 Or at 521-22.2

Here, establishes, the relevant historical record the sexual most, that the state restrictions on con- imposed works with the expressive contemporaneously tent of live 8. As in Henry, of Article insuffi- adoption of that kind were cient to show restrictions intended of the constitutional adoption guarantee. survive errs in otherwise. concluding majority

I turn to to his conviction for defendant’s challenge 167.012. As I in violation of ORS prostitution promoting 2The court continued in Deiz: likely “[LJegislators are to be concerned with the immediate. We have more adopt principle political temptation to an an abstract a ideal as observed substantially ideal in order accommodate an immediate

then undercut the to example, political generation adopted first that amend- concern. For ment also attempted political enacting suppress to criticism Alien Acts.” Sedition 289 Or at 284. conduct earlier, engage expressive gen-

noted who people that immune from for laws liability violating are not erally the conduct of whether the conduct irrespective to apply who serves an expressive purpose. Consequently, person murder in a theatrical is liable for performance commits for solely crime even the murder was committed though Brewer majority Judge apply expressive purposes. that Article section does not to conclude principle liability immunize defendant from for promoting prostitution in sexual conduct in a live by paying performers engage show, against because law promoting prostitution is one that of whether the violation applies irrespective served an expressive purpose.

The California Court confronted the same Freeman, issue under the First Amendment People Cal 3d 419, (1988), 758 P2d 250 Cal and con- Rptr cluded that California’s prostitution laws could not be a film for actors to applied penalize producer paying per- form in a film. sexually explicit Although the court recog- nized that conduct expressive generally is to laws subject that apply irrespective of whether the conduct serves an such as laws expressive purpose, against murder, rape, see 46 Cal 3d at robbery, 428-29, it held that the prostitution laws from other qualitatively laws when different It applied expressive noted, work. for example, apply- ing such laws to film production would mean that who people produced unquestioned

“films of merit, artistic and social as well as films made for medical or educational purposes,” would be subject prosecution promoting prostitution. Id. at 426. The court rejected conclusion under the First Amendment.

I would do so as well under Article Constitution. If it is lawful to film or Oregon live produce show in which adult willing viewers watch “ ‘any The court went on to note in Freeman that more restrictive rule could ” Freeman, annihilate in a stroke much of the modern theater and cinema.’ 46 Cal Court, (quoting Municipal 821,831,464 483,83 3d at 426 Barrows v. 1 Cal 3d P2d (1970)); Rptr Superior Court, 422,113 Rptr Cal Wooten v. 93 Cal 4th Cal cf. (Cal 2002) (managers strip prostitution- 2d 195 rev den club not liable for performed paid performers). crimes for sexual acts between related in a performance engage adult performers unpaid 8, I, that Article section conduct, and I believe sexual includes the apply prosti- then the state cannot is, that it establishes when the per- unlawful to make that conduct tution laws would I therefore for their performance. formers are paid in prostitution conviction for promoting reverse defendant’s of ORS 167.012.4 violation dissent.

I respectfully analysis analogous that I believe analysis apply to the that I here is valid law can Oregon to a claim that an otherwise applies the Constitution under requirements complying the of her applied prevent person from with to a not be person apply prevent from com against properly can to a religion. murder A law However, con engage religious in human sacrifice. plying with a command to requiring liberty a religious might prevent the state from guarantee of stitutional requirement photograph license if the on her driver to have her licensed driver (8th Peterson, See, e.g., Quaring 728 F2d 1121 religious beliefs. would violate her 1984). pledge requiring person prevent to Similarly, the state from it would Cir person doing require to violate her Oregon flag would allegiance if so Barnette, 624,626-30,642, See, 319 US e.g., Education v. religious Board beliefs. can be drawn 1178, no obvious line that L Ed 1628 There is Ct 63 S notwithstanding religious beliefs and general laws that can be enforced between liberty guar Nevertheless, Oregon religious I believe that the that cannot. those which, said, equivalent distinction, to the dis embody I have such antees applicable I, generally laws that can between Article section creates tinction that cannot. apply expressive and those that to conduct permits parents law my analysis, Judge notes that rejecting Brewer In selling children to adoption prohibits from their place but them children for their example prostitution laws of a law that makes others, besides which is another money. payment of involves the the conduct criminal because conduct course, you J., dissenting part). can (Brewer, concurring part, Of n 14 at 47 they purport without violat- to sell their child pay stage in which actors to a scene contrast, prostitution prohibiting selling laws against In ing children. the law prevent a filmmaker or theater only that would which I am aware are the laws of the fact portray that would be lawful but for paying conduct producer actors to from pro- theater portray realities of film and paid it. Given the are that the actors prostitu- duction, generally paid, enforcement of the must be actors in which expressive works people in that work means against the involved tion laws pros- unique between the produced. The conflict involving cannot be conduct using paid ability theatrical works people to create film and titution laws and bars that Article portray leads me to conclude sexual conduct actors to producers against and actors enforcing prostitution laws state from is lawful but for the sexual conduct that expressive that includes work involved above, reached the Court noted California payment the actors. As in Freeman. First Amendment under the same conclusion that, it a a law that made Furthermore, if the state enacted not doubt I do company in the of adults money to be nude pay for an adult or receive crime related, bar enforce- section would then adult was not whom the nude models, involved in dancers, photographers, and artists against of that law ment principle applies to the that the same expressive works. I believe the creation case. prostitution at issue this law notes based on a 1993 decision of the Court, Supreme neighbors Canadian “perplexed” by our to the north would be our obligation.” “sense of App (Brewer, J., historical concurring part 181 Or at 41 n 9 in dissenting part). Perhaps then, in so. But the Canadian courts are not bound to follow Robertson. We are. 19 City Portland, Sekne v. 630,726 (1986), In App 81 Or rev den 302 P2d 959 similarly Or 615 proscribing this court held that a local ordinance all nude dancing unconstitutionally opinion in taverns was relegated overbroad. The footnote; indeed, Robertson to a expressly declined to determine whether the 23 analysis, Judge with cannot be reconciled like Brewer’s Supreme any subsequent Court decision other Robertson concerning 8.20 I, section failing Judge “to us task for Next, Brewer takes Henry” Supreme in the Court held terms with what come to (Brewer, part concurring App J., in and dissent- at 43 interesting complaint, given ing part). is an in That Henry. proposes from is with But aside he irreconcilable what again Judge once is mistaken. that, Brewer rejected Henry, the In the Court state’s excep- argument that there was a well-established historical publications generally. regulation of obscene tion for the court held may although that, there well be historical regulation exception expres- for the of narrower forms of “unwilling sion—distribution ers, obscene materials view- beleaguered neighbors,” captive audiences, minors and obscenity generally. example Or was none for 302 —there emphasized the court the at 525. More than once of its narrowness rejection “all-encompassing holding, is, of an generally. publications exception” at historical for obscene Id. regulation public court inde- 523. The cency, did address public public conduct, lewdness, or shows sexual much less hold that there exists no well-established histori- Nothing regulation exceptions in cal for the of such conduct. Henry entirely our that an different forecloses conclusion entirely wholly his- statute is torical contained within an different exception passed on in that case.21 than the court wholly challenged historical ordinance was contained within a well-established parties because the did not the matter. Id. at 636 n 2. brief hand, only oddity this court That is not the that House reflects. On one prohibition public genitals against touching in act of an struck down while, hand, is, apparent gratification it left on the other it severed —that sexual provision prohibiting public to us masturbation. It is unclear intact —another touching gen public meaningful can whether there be a distinction between definition, masturbation, that, by given involves itals and “masturbation” touching organs ThirdNew in an act of sexual stimulation. See Webster’s 1993). Dictionary, (unabridged ed Int’l vein, Judge “spin a different view of his In related Brewer insists that we Henry. tory” passages Or is reflected in several than selected (Brewer, J., concurring part dissenting part). court It true being “rugged indulged the framers general historical observations about in some morality. regulation individuals” who were uninterested and robust Henry, general observations about Or at 523. It also true that such

Case Details

Case Name: State v. Ciancanelli

Court Name: Court of Appeals of Oregon

Date Published: Apr 24, 2002

Citation: 45 P.3d 451

Docket Number: 98CR2685FE; A108122

Court Abbreviation: Or. Ct. App.