Lead Opinion
In this сriminal proceeding, we are asked to decide whether ORS 167.062, which makes it a crime to, among other things, “direct, manage, finance or present” a “live public show” in which the participants engage in “sexual conduct” violates the free expression rights guaranteed by Article I, section 8, of the Oregon Constitution.
The state disagrees that ORS 167.062 is directed at expression and, for that reason, argues that the statute is constitutionally sound under State v. Robertson,
For reasons that we set out post, we disagree with the state’s assertion that the statute is not, by its terms, aimed at expression. We therefore conclude that this case is one to which the Robertson framework applies. Respecting that methodology, we accept the state’s request that we consider its criticisms oí Robertson. Having done so, we conclude that the state has failed to show that Robertson is incorrect. We therefore adhere to it. Furthermore, we reject categorically the state’s proffered alternative, balancing test.
The following facts are supported by the record. Defendant operated an “adult-oriented” business, Angels, in Roseburg. Angels offered a menu of “shows,” to be performed for individual customers or small groups upon payment of a fee. The shows were presented in a small room on the premises.
Undercover policemen visited Angels on two occasions. During the first visit, the officers requested and paid for a “toy show.” A female employee of Angels led them into a room and proceeded to “perform” for them by, among other things, removing her clothing and inserting a dildo and her finger into her vagina. During the second visit, the officers paid for a “two girl show.” During that show, two women performed a striptease, rubbed their breasts against the officers chests, and engaged in oral sex with one another.
After the second visit, the officers arrested defendant and the performers. Defendant later was charged by indictment with two counts of promoting a live sex show, ORS 167.062, one count of promoting prostitution, ORS 167.012, two counts of compelling prostitution, ORS 167.017, and two counts of using a child in a display of sexual conduct, ORS 163.670 (the latter two counts are based on the fact that one of defendant’s performers was under 18 years of age). Before trial, defendant demurred to the indictment, arguing, among other things, that ORS 167.062, on its face, and ORS 167.012, as applied to the conduct at issue, violate the free expression guarantee of Article I, section 8, of the Oregon Constitution and the free speech guarantee in the First Amendment to the United States Constitution. The trial court overruled the demurrers, and the case proceeded to trial. Defendant was convicted of all charges.
On his direct appeal to the Court of Appeals, defendant assigned error, inter alia, to the trial court’s ruling on his demurrer, again arguing that ORS 167.062 is facially unconstitutional and that ORS 167.012 is unconstitutional as applied to his case. A majority of the Court of Appeals rejected both arguments. The Court of Appeals majority began by accepting, for the sake of argument, the proposition
In a similar vein, the Court of Appeals majority held that the conduct that is the subject of ORS 167.012 (promoting prostitution) also falls wholly within a longstanding historical exception to Article I, section 8. And, because it does fall within such an exception, the majority concluded that, even if defendant were correct in suggesting that some of the conduct prohibited by ORS 167.012 is or can be “expression,” that fact would not raise a constitutional issue. Ciancanelli,
II. METHODOLOGY
On review, defendant argues that the Court of Appeals majority’s analysis is contrary to this court’s holding in State v. Henry,
For its part, the state does not dwell on whether criminal prosecution for promoting a live sex show or prostitution falls within a “historical exception” for purposes of the Robertson framework. Instead, it focuses its argument on two points: (1) that the statutes at issue are directed at conduct, not expression; and (2) that, in any event, the entire Robertson framework should be abandoned because it is “inconsistent with what language and history teach about the intentions of the [Oregon] constitution’s authors.” Respecting the latter point, the state notes that, in recent years, this court has utilized a consistent methodology to construe provisions of the Oregon Constitution and has stated repeatedly that its ultimate purpose is to ascertain the intent of the provision’s framers and of the people who voted to adopt it. See, e.g., Stranahan v. Fred Meyer, Inc.,
In Stranahan, this court summarized the circumstances under which, in spite of the salutary doctrine of stare decisis, it will reconsider rules arising out of earlier decisions respecting the Oregon Constitution:
“[W]e remain willing to reconsider a previous ruling under the Oregon Constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question. We will give particular attention to arguments that either present new information as to the meaning of the constitutional provision at issue or that demonstrate some failure on the part of this court at the time of the earlier decisions to follow its usual paradigm for considering and construing the meaning of the provision in question.”
Stranahan,
The “usual paradigm” referred to in Stranahan for analyzing an original provision of the Oregon Constitution (such as Article I, section 8) is the one that this court first specifically identified and described in Priest v. Pearce,
In the decade since the court decided Priest, this court consistently has applied that methodology to construe a
Relying on this court’s expressed willingness in Stranahan to reconsider allegedly erroneous constitutional decisions, the state proffers an alternative rule to Robertson, supported by an extensive exposition of the wording of, the history respecting, and the case law decided under Article I, section 8. Defendant weighs in with an equally able brief supporting the Robertson framework, and various amici offer further help. Before addressing those arguments, however, we wish to add a note respecting requests that this court reconsider constitutional doctrine.
A decent respect for the principle of stare decisis dictates that this court should assume that its fully considered prior cases are correctly decided. Put another way, the principle of stare decisis means that the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.
Various considerations may add to that responsibility. The most common such consideration is time. Many decisions of this court serve as precedent in lаter decisions. Thus, disavowing one case may undermine the precedential significance of several others.
The contrast between Stranahan and this case illustrates the foregoing principle. In Stranahan, the allegedly erroneous decision had been rendered less than 10 years earlier, and few intervening precedents had relied on the earlier case, Lloyd Corporation v. Whiffen,
It follows from the foregoing that the state, in order to prevail in this case, must persuade us, first, that the constitutional rule that it attacks was not formulated either by means of the appropriate paradigm or by some suitable substitute. If the state accomplishes that task, then it still has before it the more difficult task of persuading this court that application of the appropriate paradigm establishes that the challenged constitutional rule is incorrect. Finally, and assuming that it is able to convince us of the incorrectness of the challenged rule, the state must persuade us that, when the passage of time and the precedential use of the challenged rule is factored in, overturning the rule will not unduly cloud or complicate the law.
With respect to the first task described above, we acknowledge that Robertson does not discuss at length the wording, history or case law surrounding the particular clause that has captured the state’s attention — that is, the “abuse” clause of Article I, section 8. That is so, most likely, because the parties in that case did not emphasize it. As such, we properly may consider the state’s request that we conduct a more complete application of the appropriate paradigm to that aspect of Article I, section 8, than the Robertson court was called upon to do. In doing so, however, we once again emphasize that our consideration of such arguments in this or any other similar case does not suggest that we automatically doubt the validity of the holding in the earlier decision. As we have explained respecting that question, the principle of stare decisis dictates that our assumption going into the inquiry is just the other way around. And, as our subsequent analysis will demonstrate in detail, our reexamination of Robertson in response to the state’s argument leads us to conclude that the state has not established, in accordance with its burden discussed above, that Robertson incorrectly considered or decided the constitutional issues that the court there addressed under Article I, section 8.
III. ANALYSIS OF ARTICLE I, SECTION 8
A. Wording
As noted, Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
The first half of the provision is directed at the legislature and other lawmaking bodies (“No law shall be passed * * *.”). The provision prohibits enactment of two categories of laws: (1) those that “restraint ] the free expression of opinion,” and (2) those that “restrict [ ] the right to speak, write or print freely on any subject whatever.” The latter category of laws appears to deal only with various modes of communication that use words (i.e., speech, printing, or writing), while the first category seemingly includes laws directed at any mode of “expression.”
The two categories of laws that are prohibited by the first part of Article I, section 8, may be distinguished in another way — by the choice of the terms “restrain” and “restrict.” Respecting those terms, it is sufficient here to say that we read the first phrase as referring to laws that restrain or punish expression of opinion
The second half of Article I, section 8 (“but every person shall be responsible for the abuse of this right”), describes an exception or modification to the broad guarantee (i.e., “this right”) set out in the first half. The import of that “abuse clause” depends on the intended meaning of two words— “responsible” and “abuse.”
When used as a noun, the term “abuse” meant, at or around the time that it was adopted in Article I, section 8:
“1. Ill use; improper treatment or employment; application to a wrong purpose; as an abuse of our natural powers; an abuse of civil rights; or of religious privileges; abuse of advantages, etc.
* * * *
“5. Perversion of meaning; improper use or application; as an abuse of words.”
Webster, An American Dictionary of the English Language (emphasis in original). “Abuse,” in the context of Article I, section 8, thus appears to mean improper use — that is, use of the right provided by the first clause in a way or for a purpose that, under some unidentified standard, is improper or wrongful. Beyond that, however, the provision offers no further hint as to how abuse of the right granted in the first clause of Article I, section 8, may be distinguished from a proper use of that right.
Following our paradigm, we turn to a review of cases that were decided under Article I, section 8, before the Robertson decision. We think that it is fair to summarize those cases by saying that they tended to rely, expressly or implicitly, on federal First Amendment jurisprudence. When Article I, section 8, explicitly was at issue, this court tended to view the abuse clause of Article I, section 8, as permitting laws aimed at punishing (as opposed to imposing prior restraints on) expression itself.
Although no pre-Robertson case contains a systematic analysis of the meaning of Article I, section 8, standing alone, the Jackson court made some effort in that direction. The court there quoted Blackstone on the issue of liberty of the press and noted that Blackstone’s analysis — that liberty of the press meant only freedom from prior restraint — had been criticized by at least one notable constitutional scholar as unworkable and inconsistent with eighteenth-century history. Jackson,
Robertson involved challenges under the First Amendment and Article I, section 8, to the then-current version of the statute defining the crime of coercion. The court declined to consider the First Amendment argument, preferring to map out and utilize an analysis that focused particularly on Oregon’s free expression provision, Article I, section 8.
Drawing on comments in an earlier case, State v. Spencer,
“As stated above, Article I, section 8, prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. This is the principle applied in State v. Spencer, supra. It means that laws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.”
Robertson,
The Robertson court next held that, even when a statute is written to focus on some forbidden result, it is subject to closer scrutiny if it proscribes one or more modes of expression as a means to that end:
“When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth.’ ”
Id. at 417-18. The court noted that, on the other hand, when a law is directed only against causing a forbidden effect, a person accused of causing that effect by means of expression “would be left to assert * * * that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to [A]rticle I, section 8.” Id. at 417. That is to say, the person would have to object to the statute on a narrow, “as applied” basis.
The Robertson court did not inquire directly into the intent of the people who drafted and adopted Article I, section 8, or mention any other methodology as a basis for its analysis. However, the central points in Robertson — the propositions that Article I, section 8, is directed at lawmakers and laws, and that it precludes the adoption of laws that are directed at restraining expression — derive directly from certain words of the provision.
As noted, the Robertson framework has become the consistent basis for examining any challenge under Article I, section 8. Among the many cases that have been decided according to that framework are a number that are particularly relevant here, because they involve attempts to ban or regulate expression that has sexual content. In State v. Henry,
In the later case of City of Portland v. Tidyman,
More recently, in State v. Stoneman,
Our discussion of the foregoing cases illustrates how this court in recent years has applied the Robertson framework to Article I, section 8, challenges. In none of those cases, however, did this court attempt to evaluate systematically
A fair summary of all the cases that this court has decided under Article I, section 8, would be that, while earlier cases (such as Jackson) point one way, and later cases (such as Robertson and Henry) point another, the later cases do not expressly overrule the earlier ones. We turn to the historical circumstances surrounding the adoption of the provision.
C. Historical Circumstances
In its brief to this court, the state argues that, when viewed in the light both of earlier and contempororary thinking about the concept of free speech and expression, it is clear that Article I, section 8, as it was drafted in 1857, was intended only as a prohibition on prior restraints. According to the state, it also is clear that the “abuse clause” of Article I, section 8, was inserted in recognition of the power of the state to punish, after the fact, any speech that, because of its antisocial tendencies, the legislature deemed to be an “abuse.”
The state’s argument has some historical support. Certainly, there is evidence that, during the late eighteenth and early nineteenth centuries, most American courts and legal treatises tended to treat the right of free speech as a very limited one, guaranteeing to the individual only a freedom from prior restraint. In fact, it now is widely accepted that, in adopting a prohibition on laws “abridging the freedom of speech, or of the press,” as the First Amendment phrased it, many, if not most, of the framers of the First Amendment were thinking in terms of the English common-law notion of freedom of speech, which prohibited prior restraints on the press but did not preclude civil or criminal prosecution, after the fact, for obscene, blasphemous, libelous, or seditious speech. See generally Leonard W. Levy, The Emergence of a Free Press 220-81 (1985) (setting out that view).
As the foregoing discussion suggests, most of the mainstream American discussions of the constitutional right to free speech drew heavily (sometimes without attribution) on Blackstone’s explication of the common law pertaining to freedom of the press:
*301 “[W]here blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels are punished by the English law * * * the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: * * * but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. * * *. Thus the will of individuals is still left free; the abuse only of that free-will is the object of legal punishment. * * *
“So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press.”
William Blackstone, 4 Commentaries on the Laws of England 151-52 (1783 ed) (reprint ed 1978). Following Blackstone, American legal treatises described the government’s power to punish the “licentiousness” of the press, or the “abuse” of the right of free speech. See Cooley, A Treatise on the Constitutional Limitations at 420 (the right guarantees “the liberty of the press, not its licentiousness”); Story, 2 Commentaries on the Constitution at 670 (prohibiting prior restraint but permitting punishment of “dangerous or offensive” expression is proper because “the will of individuals is still left free [and] the abuse only of that free will is the object of legal punishment”).
But what constituted “abuse” under that formulation? On that point, the mainstream legal treatises again tended to treat Blackstone as the oracle: His pronouncements — that liberty of speech does not extend to publications that are “improper, mischievous, or illegal” or that are “on a fair and impartial trial * * * adjudged of a pernicious tendency” — often were repeated and endorsed. See, e.g., Story, 2 Commentaries on the Constitution at 670-71 (repeating the foregoing phrases from Blackstone). Thus, many respected early and mid-nineteenth century jurists and legal writers appear to have believed that “abuse” covered at least some speech that the governing authority deemed to have anti-social tendencies or to threaten the public peace. That
On the whole, the nineteenth century American judiciary appeared to have shared that limited view of the right to free speech. See, e.g.,Respublica v. Dennie,
At most, the judiciary would concede to a slightly more liberal version of the Blackstonian view — that, in addition to prohibiting prior restraint, freedom of speech and of the press incorporated a “right to publish, with impunity, truth, with good motives, and for justifiable ends, whether it respects government, magistracy, or individuals.” People v. Croswell, 3 Johns Cas 335, 392-93 (NY 1804) (reciting that definition in the context of a prosecution under the Alien and Sedition Act); Pugh v. Starbuck, 1 Ohio Dec Reprint 143, 149
Interestingly, the foregoing view of the right of free speech was contrary, in many respects, to the philosophy that had animated the American Revolution. Many of the leading lights of the American revolutionary period were greatly influenced by the “natural rights” philosophy that was advanced in the works of John Locke and that later was popularized, and fused with the republican political tradition, by John Trenchard and Thomas Gordon under the nom de plume “Cato.” See generally Levy, The Emergence of a Free Press at 109-14 (describing Cato’s Letters and noting that the letters were revered, quoted, and recommended by the likes of John Adams, Thomas Jefferson, Benjamin Franklin, Josiah Quincy, and John Dickinson). On the issue of freedom of speech, Cato wrote:
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know.”
“Of Freedom of Speech,” No 15, Feb 4, 1720, in John Trenchard and Thomas Gordon, I Cato’s Letters: Essays on Liberty, Civil and Religious 96 (reprint ed 1971).
To the more libertarian adherents of the natural rights philosophy, freedom of speech was an “inalienable” natural right — that is, it was not part of the package of natural rights that individuals ceded to the community in order to obtain the protections and benefits of civil society. Rather, it was a right that the individual always retained, as he or
Thus, and particularly in reaction to the ill-advised Alien and Sedition Act of 1798, some early American political thinkers would speak in terms of an “absolute” right of freedom of speech and press, bounded only by the necessity of avoiding injury to the equal rights of another individual. Madison, for example, argued that the First Amendment denied to Congress any power to regulate speech or the press, prospectively or retrospectively, but still expressed concern that individuals have a remedy for injury to their reputations and suggested that that was available under state laws. See generally James Madison, Report on the Virginia Resolutions (1800), reprinted in Kurland and Lerner, 5 The Founders’ Constitution at 141-46 (criticizing the Alien and Sedition Act as contrary to the First Amendment and rejecting the idea that First Amendment merely adopted common law with
The struggle over the efficacy of natural rights played a significant role in the defining political issue of the nineteenth century, slavery. Natural rights ideas were taken up wholeheartedly by anti-slavery Republicans, who used them to challenge the legality of slavery. Daniel Farber and
Abolitionists therefore argued that legislatures — the instruments of the majority — had no constitutional power to suppress or punish speech because of its supposed “bad tendencies” vis-a-vis the public peace. See, generally, Michael K. Curtis, Free Speech: “The People’s Darling Privilege” 10-13, 194-215 (2000) (describing prevailing “bad tendency” rationale for suppressing unpopular speech and rejection of that rationale by abolitionists and Republicans). However, consistent with traditional natural rights theory, they acknowledged that the God-given right to free expression was limited by the equal rights of others. See Steven J. Heyman, Righting the Balance, An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B U L Rev 1275, 1297 n 124 (1998) (quoting speeches and writings of abolitionists, including James G. Bimey and the Rev. Elijah Lovejoy).
In general, then, we can see that Article I, section 8, was adopted at a time in American history when much of the legal community was content with a narrow, Blackstonian view of freedom of speech, but when a more libertarian approach, which was associated with the natural right theory that initially had animated the American Revolution — still enjoyed significant popular adherence.
We know that Article I, section 8, was part of the original Oregon Constitution and was derived from the free speech guarantee in Indiana’s 1851 constitution.
There is no record of any specific discussion of Article I, section 8, at Oregon’s Constitutional Convention in 1857. However, we do have a record of comments made during the Constitutional Convention about a proposed amendment to another provision of the draft constitution that shows that a range of points of view was present there. Specifically, Carey reports that, on September 9, 1857, delegate Perry B. Marple moved to amend proposed Article I, section 10, of the draft constitution to provide that, in “prosecutions” for libel, the truth may be given in mitigation of damages, rather than in “justification.” Carey, The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 at 309. The omnipresent Matthew Deady moved to make the provision even less protective
“it was also strange that the whole judiciary should lock hands together on this subject. When the newspapers spoke of any prominent official — and told the truth — it was invariably characterized as ‘abuse.’ ”
Id.
The dispute between Deady and Dryer suggests that there was no clear agreement among the delegates as to the meaning of the term “abuse” in the context of Article I, section 8. In fact, Dryer seemed to have feared a different kind of “abuse,” one in which a conservative judiciary would abuse its authority to interpret the Oregon Constitution to undermine the very freedom that, in Dryer’s view, Article I, section 8, sought to guarantee. Neither does it appear that there was any clear winner in the dispute: the delegates may have concluded that Article I, section 8, “covered all the ground,” but they did not feel compelled to further clarify the abuse clause.
As to the question whether the original Oregon Constitution reflects a Blackstonian view of individual rights or, instead, has a natural rights focus, the evidence also is mixed. This court previously has noted that the original constitution, as a whole, reflects a basic distrust of legislative power. See Smothers,
On the other hand, unlike their counterparts in many western states, the framers of the Oregon Constitution did not include any express announcement of the “inalienable” natural rights of man in their constitution. They were content to announce that “all men, when they form a social compact, are equal in right” and that “all power is inherent in the people.” Or Const, Art I, § 1. The absence of any declaration of “inalienable” natural rights was noted and decried by some Oregonians at the time,
D. The Framers’Intent
It is against the foregoing textual, historical, and jurisprudential background that we must assess the state’s assertion that the Robertson framework is contrary to the intent of the people who drafted and adopted Article I, section
Turning our focus to the first clause of Article I, section 8, one is struck by its sweeping terms, both with respect to the legislative power (“[ri\o law shall be passed restraining * * * or restricting”) (emphasis added) and the kinds of expression protected (“* * * the free expression of opinion, or * * * the right to speak, write, or print freely on any subject whatever”) (emphasis added). In fact, the words are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down, unless the historical record demonstrated clearly that the framers meant something other than what they said. As our recitation of the historical circumstances shows, we have found no such demonstration. Thus, it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike — profanity, blasphemy, pornography — and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component. Thus, we have little trouble in concluding that the people who framed and adopted Article I, section 8, as part of the original Oregon Constitution intended to prohibit broadly any laws directed at restraining verbal or nonverbal expression of ideas of any kind.
We also conclude that those same people intended to provide an exception to that broad prohibition — the legislature could provide legal and even criminal remedies for “abuse” of the right to free speech. That is evident from the fact that, however people might have disagreed as to what constituted “abuse” of the right of free expression, nо one in
The foregoing leaves us to sort out the pivotal conundrum inherent in Article I, section 8: What is the scope of the term, “the abuse of this right”?
The difficulty, of course, is that there is no sound basis for placing “the framers,” as a whole, into one or the
In shоrt, no unassailably correct answer, based entirely on the provision’s wording, case law, history, or any other objective evidence, is possible. The question then presents itself: In the face of the foregoing impasse about the framers’ intent, can the state meet its burden of showing that the Robertson framework is contrary to the framers’ intent with respect to Article I, section 8? Clearly, it can do so only if it demonstrates that Robertson is incompatible with both of the possible meanings of that provision that we have identified.
Doubtless, the state could demonstrate that Robertson is incompatible with the Blackstonian approach: The central tenet of that approach — that any speech that the government deems to be improper or socially undesirable may be punished as “abuse” — could not be farther from the Robertson rule. On the other hand, the Robertson approach appears to be largely, if not entirely, compatible with the pure “natural rights” approach that we have described. As discussed, that natural rights theory holds that only speech that directly interferes with or harms the fundamental rights of other individuals is punishable (either civilly or criminally) as “abuse.” That notion is fully consonant with the idea expressed in Robertson that, although speech qua speech cannot be punished, acts causing “forbidden results” (which, presumably, would include acts causing harm to other individuals) can be punished, even if that result is reached by means of speech.
We have stated that, in light of this court’s longstanding reliance on the Robertson framework to resolve issues that arise under Article I, section 8, the burden of demonstrating that that framework is inconsistent with the intent of the people who drafted and adopted Article I, section 8, lies with the party challenging that framework — in this
Before we turn to the task of applying the Robertson framework to the case at hand, we believe that it is appropriate to address the “historical exception” aspect of the Robertson analysis with more particularity. It has become clear to this court, from the opinion below, the state’s arguments in this and other recent cases, and certain commentary in the academic and professional literature,
“the constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal restraints on one or another form of speech or writing. The party opposing a claim of constitutional privilege must*316 demonstrate that the guarantees of freedom of expression were not intended to replace the earlier restrictions.”
Henry,
“ ‘contemporaneous legislative actions should not necessarily be given much weight when construing constitutional principles. Constitutional draftsmen are concerned with broad principles of longstanding significance.’ ”
Id. at 521-22 (quoting State ex rel Oregonian Pub. Co. v. Deiz,
To be sure, this court has not elaborated on those passages from Henry to explain what a party must show in order to demonstrate that the drafters of Article I, section 8, did not intend to abolish a well-established pre-existing restriction on expression.
Section V of the Robertson opinion contains a lengthy examination of how courts have dealt with laws pertaining to extortion, intimidation, and solicitation — laws that are conceptually related to the prohibition on “coercion” that was at issue in Robertson and that fall, in whole or in part, within the historical exception notion.
“To recapitulate, we believe that the constitutional right to speak, write, or print freely on any subject whatever guaranteed in Article I, section 8, was not meant to immunize the use of words in some respects relevant to [the coercion*317 statute]. As we have said, one of these is the use of words in the course of what indisputably would have been a conventional crime when Oregon’s Bill of Rights was adopted in 1859, or in the course of similar kinds of conventional crimes that lawmakers may from time to time enact.28 This includes the use of words in the course of soliciting, attempting, carrying out, or concealing other crimes. Therefore Article I, section 8 would not foreclose a statute, otherwise in valid form, that made it criminal to compel another to commit an offense by threats or other verbal means under circumstances in which the demand is meant to be followed and the compulsion is realistically plausible. In such a statute, the focus is on the actual or probable commission of the compelled offense, not on protecting the addressee from hearing the speaker’s threats. ORS 163.275, however, is not such a statute. * * * It is not concerned with the performance of the compelled act, which the statute does not require to be unlawful.
Robertson,
Thus, the Robertson court drew a distinction between longstanding verbal crimes like solicitation, which (it posited) the drafters of Article I, section 8, did not intend to affect, and other verbal crimes like seditious and criminal libel of similar long standing, which, in its view, the drafters of Article I, section 8, intended to abolish. But how to tell the difference? The fact that Robertson dubbed crimes in the first category as “conventional” crimes is unhelpful: The term “conventional” has no obvious meaning in this context that can distinguish one historical verbal crime from another. However, the passage overall (and the material that precedes it) does seem to explain the distinction. Specifically, it seems to suggest that, among the various historical crimes that are “written in terms” directed at speech, those whose real focus is on some underlying harm or offense may survive the adoption of Article I, section 8, while those that focus on protecting the hearer from the message do not.
But how does that distinction made in Robertson connect to the oft-quoted “test” for a historical exception that also appears in that opinion — that the scope of the restraint must be “wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and the guarantees then or in 1859 demonstrably were not intended to reach”? Id. We think that it means that, however well-established a restraint directed in terms against speech or expression might have been at some time in the past, the mere fact that it continued to exist in one form or another after the adoption of Article I, section 8, does not sufficiently demonstrate that the framers of that provision did not intend to reach it, unless the restraint itself is of a sort that is consistent with the spirit of Article I, section 8. In other words, for those historical crimes that ultimately focus on some underlying nonspeech harm but, nevertheless, are directed “in terms” at speech, the conflict between their existence and the fundamental principle expressed in Article I, section 8, is not very great, and it may be possible to infer an intention to immunize them from a literal application of Article I, section 8, from the mere fact of their continued existence after the provision’s adoption. However, the same cannot be said for historical crimes that are directed at expression, both “in
IV. APPLICATION TO ORS 167.062
We turn now to the question whether ORS 167.062, the live sex show statute, violates Article I, section 8, of the Oregon Constitution. The statute provides, in part:
“(3) It is unlawful for any person to knowingly direct, manage, finance, or present a live public show in which the participants engage in sadomasochistic abuse or sexual conduct.
“(4) Violation of subsection (3) of this section is a Class C felony.
“(5) As used in * * * this section unless the context requires otherwise:
“(a) ‘Live public show’ means a public show in which human beings, animals, or both appear bodily before spectators or customers.
“(b) ‘Public show’ means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded.”
For purposes of the statute, “sexual conduct” is defined as
“human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”
ORS 167.060(10).
We first must determine whether the stаtute is directed by its terms at restraining or restricting speech or expression. The state contends that it is not directed at expression but, instead, at conduct that the legislature is entitled to punish. However, the state’s briefing on that particular point is somewhat unclear: At some points, it appears
The latter suggestion is easily dismissed. There is nothing in ORS 167.062 that suggests that application of that statute is limited to sexual displays for profit or for which the performers (or any other persons) are paid. In fact, the statute states explicitly that it is irrelevant whether the observers of a live sex show pay an admission fee or other charge. See ORS 167.062(5)(b) (defining “public show,” for purposes of ORS 167.062, as an exhibition or entertainment held out to be accessible to the public “whether or not an admission or other charge is levied or collected”).
Neither can we agree with the state that ORS 167.062 is directed, essentially, at public masturbation and sexual intercourse — conduct that, according to the state, the legislature can and does criminalize. The legislature has drawn a clear distinction between sexual conduct that occurs in or in view of a “place to which the general public has access,” see ORS 163.465 (defining public indecency to include sexual intercourse and deviate sexual intercourse in, or in view of, a “public place” as defined by ORS 161.015(10)), and sexual conduct that occurs in a place to which adult members of the public are invited, but where “patrons are forewarned and viewing is limited to those patrons,” State v. Brooks,
In arguing against the suggestion that ORS 167.062 is directed at expression, the state also relies on this court’s recognition, in Huffman and Wright Logging Co. v. Wade,
We must consider, then, whether the statute is “wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.” Robertson,
We will assume, for the sake of argument, that the information set out in the Court of Appeals majority opinion is sufficient to support a conclusion that a criminal prohibition on live shows involving displays of nudity and sexuality was well-established in the United States at the time that Article I, section 8, was adopted. The question remains, however, whether the material in that opinion or in any other
To conclude, ORS 167.062 is directed by its terms at expression and does not fall under a well-established historical exception that the framers of Article I, section 8, demonstrably did not intend to reach. It is unconstitutional on its face. It follows that defendant’s convictions under ORS 167.062 must be reversed.
V. PETITIONER’S OTHER CONVICTIONS
Although petitioner makes no separate argument to this court that his convictions under ORS 167.012 for promoting prostitution also violate Article I, section 8, we briefly address that issue. Defendant argued in the Court of Appeals that
*323 “[t]he same conduct that resulted in defendant’s conviction under ORS 167.062 also resulted in his conviction under ORS 167.012. Therefore, even if the described conduct meets the technical definition of prostitution, defendant is still entitled to judgment of acquittal because the dancers were engaged in protected expression.”
The Court of Appeals majority rejected that contention, primarily on the ground that prostitution and conduct relating to prostitution fall within a “historical exception” to the broad prohibition in Article I, section 8, on laws restraining expression. Ciancanelli,
We too reject the contention that ORS 167.012 implicates Article I, section 8, but on the more basic ground that the statute is not directed at expression. ORS 167.012 prohibits promoting prostitution — owning, controlling, managing, or supervising a prostitution enterprise — regardless of the presence or absence of any circumstances that might add an expressive element to the conduct.
Defendant argues, however, that ORS 167.012 is unconstitutional as applied in his case, because his conduct occurred in conjunction with a “live show” and, thus, was protected expression. That is essentially the same argument that the defendants made, and that we rejected, in Huffman and Wright Logging. In that case, as previously noted, environmental protesters who were engaged in an effort to stop a logging operation in the Siskiyou National Forest chained themselves, without permission, to logging equipment that belonged to a logging company, while displaying and shouting anti-logging slogans. The logging company brought an
In the present case, we have concluded that Article I, section 8, of the Oregon Constitution precludes defendant’s prosecution under ORS 167.062 for directing a live public show in which performers engage in certain sexual conduct. We have concluded that, to the extent that ORS 167.062 applies only to sexual conduct in live public shows, it is directed at expression or, at least, the expressive aspect of certain conduct. However, neither that holding, nor the fact that defendant’s conduct (directing acts of prostitution) occurred in association with live public shows, transforms his conduct into protected expression for all purposes. Defendant’s involvement in directing and profiting from a prostitution enterprise is subject to regulation and punishment, and that is what occurred here.
The decision of the Court of Appeals is affirmed in part and reversed in part. The case is remanded to the circuit court.
Notes
Article I, section 8, of the Oregon Constitution provides:
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
So named for State v. Robertson,
Before this court, defendant focuses on Article I, section 8, of the Oregon Constitution as it applies to ORS 167.062. However, he also argues, either directly in his briefs to this court or by reference to his arguments in the Court of appeals, that: (1) ORS 167.062 violates the First Amendment to the United States Constitution; (2) ORS 167.012, both on its face and as applied to his conduct, violates Article I, section 8, of the Oregon Constitution; (3) certain evidence obtained in seаrches of his business should have been suppressed because the searches were unlawful; (4) he was entitled to acquittals on the charges of compelling prostitution, ORS 167.017, and using a child in a display of sexual conduct, ORS 163.670, because the evidence in the record was insufficient to support a finding that defendant knew that the child in question was, in fact, a minor; (5) the state was required, and failed, to prove that touching of intimate parts during the performances was for the purpose of and actually was sexually gratifying to the performers; (6) a conversation that the police taped pursuant to a phone tap order should have been suppressed because the police failed to tape the conversation in its entirety; and (7) defendant’s rights were violated because businesses like “Angels,” operating in other counties, have not been subjects of criminal investigation and prosecution.
Because we agree with defendant that his ORS 167.062 convictions must be overturned under Article I, section 8, we need not consider the first of those arguments, pertaining to the application of the First Amendment to ORS 167.062. We do address the second argument, pertaining to the constitutionality of ORS 167.012, because that argument was discussed in the majority and dissenting opinions in the Court of Appeals. We conclude that the remaining arguments do not merit further discussion.
Noah Webster’s An American Dictionary of the English Language (1828) included the following in its definition of “expression”:
“2. The act of uttering, declaring or representing: utterance; declaration; representation; as an expression of the public will.
‡ ‡ ‡ ‡
“5. In painting, a natural and lively representation of the subject; as the expression of the eye, of the countenance, or of the particular action or passion.
“6. In music, the tone, grace, or modulation of the voice or sound suited to any particular subject; that manner which gives life and reality to ideas and sentiments.”
(Emphasis in original.) Also relevant is Webster’s definitions of the word “express,” including:
“2. To utter; to declare in words, to speak.
“* * ‡ * *
“5. To represent or show by imitation or the imitative arts; to form a likeness; as in painting or sculpture * * *
*293 “6. To show or make known; to indicate.”
Id.
Webster’s An, American Dictionary of the English Language defined “opinion” as:
“1. The judgment which the mind forms of any proposition, statement, theory or event, the truth or falsehood of which is supported by a degree of evidence that renders it probable but does not produce absolute knowledge or certainty; * * *
í}; ;{í í{í
“3. Settled judgment or persuasion; as religious opinion; political opinion.”
Although, as we shall describe, the common legal import of the word “restrain” in the context of discussion of restraints on speech was limited to the idea of prior licensing schemes, we find little support for the idea that the term was intended by the drafters to have such a limited connotation. Then or now, the threat of punishment could (and can) be as much a restraint on speech as any prior licensing scheme.
According to Webster, “responsible” meant:
“1. Liable to account; accountable; answerable; as for a trust reposed or for a debt.”
Webster, An American Dictionary of the English Language.
We put to one side this court’s cases holding that defamatory statements “have throughout the history of this state been recognized as an abuse of the right of free expression for which a person is to be held responsible under the provisions of Article I, section 8.” Wheeler v. Green,
Professor Levy examined popular writings, case law, and other material from the prerevolutionary period and found that the American notions of liberty of speech and press at that time were remarkably consistent with the English common law as described by Blackstone. Levy also examined the immediate history of the drafting and adoption of the Bill of Rights and found that, although proponents
Levy acknowledges that, shortly after the adoption of the Bill of Rights (and, more particularly, after the enactment of the Sedition Act of 1798), there were attempts to explain the First Amendment as a repudiation of the common law. However, Levy suggests that, in the context of the times, those after-the-fact explanations are suspect, at least as evidence of the framers’ views at the time of the First Amendment’s adoption. Id. at 309-49.
Thus, in 1868, Cooley wrote:
“[W]e understand liberty of speech and of the press to imply not only liberty to publish, but complete immunity for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common-law rules which were in force when the constitutional guaranties were established.”
Cooley, A Treatise on the Constitutional Limitations at 422.
Notably, Blackstone believed that it was consistent with the common-law notion of freedom of the press to punish even an entirely truthful attack on a public figure, because the sovereign could determine that such a publication would have an undesirable “tendency” to disturb the public peace. See Blackstone, 4 Commentaries on the Laws of England at 151-52.
We acknowledge that it is somewhat simplistic to describe the Blackstonian approach as being contrary to the natural rights philosophy that was popular at the end of the eighteenth century. Blackstone, in fact, styled himself as an advocate for the natural law philosophy, writing in his Commentaries that the “law of nature, being co-eval with mankind, and dictated by God himself, is of course superior in obligation to any other.” Blackstone, 1 Commentaries on the Laws of England at 41. However, in the end, Blackstone believed that Parliament was — indeed, it had to be — supreme. No matter how he is categorized, Blackstone’s ideas contrast sharply with the idea of reserved or inalienable rights that the state may not abridge except to the extent that exercise of those rights invades the rights of another individual. See Thomas C. Grey, “The Original Understanding and the Unwritten Constitution,” in Neil L. York, ed., Toward a More Perfect Union, Six Essays on the Constitution 145, 152 (1988) (so asserting).
In Ms essay, Hay drew a sharp distmction between the natural right theory оf freedom of the press and the Blackstonian theory with respect to that freedom. He wrote:
“Now freedom is of two kinds, and of two kinds only: one is, that absolute freedom wMch belongs to man, previous to any social mstitution; and the other, that qualified or abridged freedom, wMch he is content to enjoy, for the sake of government and society. I believe there is no other sort of freedom in which man is concerned.
“The absolute freedom, or what is the same thing, the freedom, belongmg to man before any social compact, is the power uneontrouled by law, of doing what he pleases, provided he does no injury to any other individual. If tMs defirntion of freedom be applied to the press, as surely it ought to be, the press, if I may personify it, may do whatever it pleases to do, uneontrouled by any law, taking care, however, to do no injury to any individual. TMs injury can only be by slander or defamation, and reparation should be made for it M a state of nature as well as in society.
“But freedom m society, or what is called civil liberty, is defined to be, natural liberty, so far, restramed by law as the public good requires, and no farther. * * * Now let freedom, under this definition, be applied to the press, and what will the freedom of the press amount to? It will amount precisely to the privilege of publishing, as far as the legislative power shall say, the public good requires: that is to say, the freedom of the press will be regulated by law. If the word freedom was used m tMs sense, by the framers of the [First AJmendment, they meant to say, Congress shall make no law abridging the freedom of the press, wMch freedom, however, is to be regulated by law. Folly itself does not speak such language.”
Hay, Two Essays on the Liberty of the Press at 23-24 (emphasis added).
Natural rights-based theories were not replaced by the legal positivism that dominated the twentieth century until well after the Civil War. See Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B U L Rev 1275, 1299 (1998) (so noting).
See, e.g., the description of Iowa’s constitutional conventions in Bruce Kempkes, The Natural Rights Clause of the Iowa Constitution, 42 Drake L Rev 593, 622-30 (1993) (describing natural rights thinking expressed during Iowa’s Constitutional Convention).
See, e.g., Beebe v. State of Indiana, 6 Ind 501, 63 Am Dec 391 (Ind 1855) (legislature could not prohibit manufacture and sale of intoxicating liquors on theory that doing so was for the public good); Herman v. State, 8 Ind 545 (Ind 1855) (same).
See, e.g., State ex rel Zillmer v. Kreutzberg, 114 Wis 530,
By the 1830s, the Southern states all had passed laws criminalizing the publication or distribution of anti-slavery sentiments and were pushing for similar legislation in Congress and in .the Northern States, on the theory that anti-slavery speech was incendiary and threatened the public peace. Although unsuccessful in their efforts to criminalize anti-slavery speech outside of the South, southern leaders did succeed in silencing debate about slavery in the United States Congress and obtaining the cooperation of at least one federal agency, the United States Postal Service, in checking the spread of anti-slavery ideas. See, generally, Michael K. Curtis, Free Speech: “The People’s Darling Privilege” 117-81 (2000) (discussing history).
Perhaps most notably, there is no evidence of any body of thought in nineteenth century America to the effect that the values involved in the concept of freedom of expression involved a balancing of the interests of the government against the individual’s interest. Nineteenth century legal thought, one scholar writes,
Indiana’s Article I, section 9, provided:
“No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write or print freely on any subject whatever; but for the abuse of that right every person shall be responsible.”
Under Dead/s formulation, truth would serve as a basis for mitigating damages only when the publication related to the public character of the complainant.
George Williams, a prominent Portland lawyer, later served as Attorney General under President Grant. Grant appointed Williams to be Chief Justice of the Supreme Court of the United States, but the appointment was not confirmed by the Senate.
See Claudia Burton and Andrew Grade, A Legislative History of the Oregon Constitution of 1857 — Part I (Articles I and II), 37 Willamette L Rev 469, 488-92 (2001) (quoting editorials and letters printed in the Oregon Argus in October 1857).
We say “any kind” because, whatever else may be said about Article I, section 8, we would turn it into an historical footnote if we were to declare that it referred only to forms of expression commonly used in 1857. Radio and television (not to mention film) thus would go wholly unprotected. Instead, we take the view that “expression,” as a concept used in Article I, section 8, must have a scope consonant with society’s expanding methods of expressing itself. The same appreciation of the wording of Article I, section 8, leads us to state that many (if not all) art forms — dance, painting, sculpture, music, photography — have, and are generally accepted as having, expressive components.
We note that one permissible construction of the second clause of Article I, section 8, would be to read the phrase “this right” in that clause as referring only to the “right to speak, write, or print freely on any subject whatever,” and not to extend to the “free expression of opinion,” as those phrases are used in the first clause. That is, the use of the word “right” in the second clause could be read to cross-reference only the “right” specifically denominated as such in the first clause. However, we do not so read the reference to “this right” in the second clause, for two reasons.
First, it is difficult to imagine how “the right to speak, write, or print on any subject whatever” could he carried out without from time to time constituting the “free expression of opinion.” Thus, the former phrase in the first clause would appear, as a practical matter, to be subsumed by the latter. Second, given the orotund nature of mid-nineteenth century prose, it seems likely that the people who drafted and adopted Article I, section 8, intended and understood the two phrases in the first clause (“restraining * * * free expression” and “restricting the right to speak, write or print”) to describe a unitary concept.
As the Robertson opinion has it, Article I, section 8,
“prohibits lawmakers from enacting restrictions that focus on the content of speech or writing either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. * * * It*314 means that laws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.”
Robertson,
We also recognize that Robertson contains certain statements suggesting that the “abuse clause” pertains to civil responsibility for harm done to individuals by means of expression. Robertson,
See, e.g., Jack L. Landau, Hurrah for the Revolution: A Critical Assessment of State Constitutional Interpretation, 79 Or L Rev 793, 848-50 (2000).
We refer to Robertson’s statement excepting from the general rule restraints that are “wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.” Robertson,
In Henry, for example, this court examined the evidence that the state offered — a territorial statute aimed at “obscene” materials “manifestly tending to the corruption of the morals of youth” — and concluded that it was insufficient. Henry,
"28 We refer to ‘conventional’ crimes so as not to imply that constitutional freedom of expression today does not extend to crimes known before the Bill of Rights, such as seditious or criminal libel, that restrained freedom of public disclosure and debate.”
The state suggests that, because of a supposed connection between live sex shows and prostitution, sexually transmitted diseases, and the exploitation of women, such shows may threaten the health and welfare of the community and that ORS 167.062 ultimately is directed at those harms. However, this court repeatedly has rejected such attempts to find expression harmful by association. See, e.g., Tidyman,
We do not mean to say that the legislature cannot enact laws that are designed to prohibit or punish conduct that amounts to prostitution, the transmission of sexual diseases, or the exploitation of classes of persons. However, we agree with the point in Robertson that lawmakers are precluded from enacting restrictions on speech solely on the theory that the speech is connected with some adverse consequences and that, absent the speech, the consequences are, to some indefinable degree, less likely. Robertson,
ORS 167.012 provides, in part:
“(1) A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly:
“(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise.”
“Place of prostitution” is defined as “any place where prostitution is practiced.” ORS 167.002(1). A “prostitution enterprise” is “an arrangement whereby two or more prostitutes are organized to conduct prostitution activities.” ORS 167.002(3).
Defendant argues that the evidence in the record does not support the findings in the trial court that performers in the two-girl show committed acts of prostitution within the definition of ORS 167.007(1) and that defendant promoted those acts in violation of ORS 167.012(1), but we do not find those issues to merit discussion. Defendant also challenges the sufficiency of the evidence respecting the age of one of the women who participated in the show, but we conclude that that issue likewise does not merit discussion.
Dissenting Opinion
dissenting.
I agree that Article I, section 8, of the Oregon Constitution protects a wide variety of expression and communication. See State v. Stoneman,
I commend the majority’s attempt to carefully examine the antecedent legal philosophies and debates that foreshadowed the drafting of Article I, section 8, and the abuse clause in particular. Nevertheless, the majority’s historical research and analysis fails to demonstrate convincingly that the nineteenth-century legal scholars and commentators on which it relies believed that free speech protections, such as Article I, section 8, extended to the conduct prohibited in ORS 167.062.
The majority correctly recognizes that the text of Article I, section 8, consists of two parts, one part “setting out an expansive right” and another part “apparently qualifying that right.” Regarding the first part of the text, the majority seizes upon the term “expression of opinion,” trims away the qualification “of opinion,” and emphasizes throughout the rest of its opinion that the subject matter of Article I, section 8 is “expression.” The majority, however, reads the constitutional text more expansively than I do. The text commands the legislature to respect the free expression of ideas — not conduct — when it forbids laws “restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever.” The separate clauses emphasize that the constitution protects the “expression of opinion” as well as the “right to speak, write, or print.” The text of Article I, section 8 thus protects ideas and thoughts expressed as opinion in speech and print, but contains nothing in the text that explicitly would protect public masturbation and sexual intercourse.
The second part of Article I, section 8, qualifying the free-speech right is the abuse clause: “every person shall be responsible for the abuse of this right.” The majority locates a source for the abuse clause in the writings of William Blackstone, who wrote that individuals are free from prior restraints on publishing, but are responsible for abuse of that
First, Blackstone is considered by many to be a natural-rights thinker of the first rank. See generally Albert W. Alschuler, Rediscovering Blackstone, 145 U Pa L Rev 1 (1996). Thus, the majority’s claim that Blackstone’s allegedly narrow-minded views were inconsistent with those of natural-rights advocates is problematic.
Second, the very existence of the text in the abuse clause of Article I, section 8, indicates that Blackstone won
Third, the majority describes the alleged libertarians as discussing the right of free speech in favorable terms, but the majority fails to show that those commentators believed, or would have believed that the protections of free speech, such as Article I, section 8, would extend to conduct such as public masturbation and sexual intercourse.
Finally, and perhaps most importantly, the idea that the Victorian-era drafters and ratifiers of the Oregon Constitution sought to bring public masturbation and sexual intercourse within the purview of constitutional free-speech protection is difficult to comprehend. In my view, the Court of Appeals’ majority opinion in this case amply demonstrated that, at the time the Oregon Constitution was adopted, pornography, nudity, lewd behavior, and “bawdy-houses” were accepted targets of regulation that enjoyed no constitutional protection based on expressive content. State v. Ciancanelli,
Most importantly, it is unnecessary to embark, as the majority does, on a search for the historical truth underlying the framers’ intent, or invoke the free-speech framework announced in Robertson. Article I, section 8, addresses speech, whereas ORS 167.062 addresses conduct, which is a well-accepted dichotomy in constitutional free-speech law. See United States v. O’Brien,
It should be beyond dispute that public acts of masturbation and sexual intercourse for profit are not intrinsically expressive or communicative acts. See Arcara v. Cloud Books, Inc.,
Sexual conduct on the street, in the park, or the village square has historically been the subject of criminal regulation. ORS 163.465,
I would hold that ORS 167.062 is not directed to the substance of any opinion or any subject of communication. Rather, the statute is directed at conduct that may under
I therefore respectfully dissent.
See, e.g., William Blackstone, Commentaries on the Laws of England 121 (1765):
“The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free-will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish.”
(Emphasis added.)
ORS 163.465 provides:
“(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:
“(a) An act of sexual intercourse;
“(b) An act of deviate sexual intercourse; or
“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.
“(2)(a) Public indecency is a Class A misdemeanor.
“(b) Notwithstanding paragraph (a) of this subsection, public indecency is a Class C felony if the person has a prior conviction for public indecency or a crime described in ORS 163.355 to 163.445.”