State v. Ciancanelli

3, 2003, Aрpeals Argued of the Court of and submitted November decision part part; case remanded to the circuit court affirmed in and reversed 29, 2005 September OREGON, OF

STATE Respondent Review, v. CIANCANELLI,

CHARLES ROBERT Review. Petitioner on S49707) (CC A108122; 98CR2685FE; CA SC

121 P3d 613 Deputy Defender, Salem, Jones, Robin A. Senior Public petitioner

argued filed on review. the cause and the briefs Ozanne, Peter Executive on the A.

With her briefs Defender, Public

Director, Gartlan, and Peter Chief

Defense Services. petitioner filed the Ciancanelli, review,

Charles Robert for himself.

briefs Attorney General, Salem, Atkinson, M. Assistant

Robert respondent

argued on the briefs for the cause and filed Hardy Myers, Attorney him

review. on the briefs With Mary Williams, H. Solicitor General.

General, and amicus Hinkle, Portland, F. filed the brief for

Charles Oregon, Inc., and for amici Foundation of

curiae ACLU Publishing Company Oregonian and other media

curiae Publishing Oregonian

entities. With him on brief

Company Rives LLP. and media entities was Stoel other Ming, filed LLP, Portland, of Perkins Coie

Chin See Oregon, Inc. and ACLU Foundation of for amici curiae

brief Markley E. and were Julia Bird. With him the brief

White Les Swanson. Perriguey,

Bradley H. Lake James J. Woodworth

Bradley filed the Associates, PC, Portland, & J. Woodworth Privacy Alliance. Area curiae Portland

briefs for amicus

284-a Carson, Justice, Before Gillette, Chief Durham,

Riggs, De Muniz, Balmer, Justices.**

GILLETTE, J. opinion.

De Muniz, J., dissented and filed an

** Kistler, J., participate did not in the consideration or decision of this case.

285 GILLETTE, J. proceeding,

In this criminal we are asked to decide among 167.062, to, which crime

whether ORS makes it a things, manage, pub- present” finance “direct,

other or a “live participants engage

lic show” in which “sexual con- expression rights guaranteed by

duct” violates the free Oregon Drawing

Article section of the Constitution.1 on framework,”2

the “Robertson which this court uses address expression

free issues that arise under Article section argues

defendant the statute is unconstitutional by expression directed, terms,

because it is its at a form of excep- fall a

and does not within well-established “historical prohibition

tion” to the constitutional on enactment such

laws. disagrees

The state that ORS 167.062 is directed at argues and, for that reason, that the statute is

constitutionally sound under Robertson, State v. Or 402, 293 (1982). 649 P2d 569 However, contends, the state also on a analytical underpinnings level,

more fundamental

the Robertson framework are unsound. follows, It the state

asserts, that this court should reexamine that framework (in “balancing” it in disavow favor a form of test that state) correctly captures

the view of the more the true mean-

ing scope Article 8. post, disagree

For reasons that we out we set with

the state’s assertion not, that the statute is terms, its expression.

aimed at We therefore conclude this case is applies. Respecting

one which Robertson framework methodology, accept request we the state’s that we con- Having

sider its criticisms oí so, Robertson. done we conclude

that the state has failed to show Robertson is incorrect. reject categori-

We therefore adhere it. Furthermore, we

cally proffered balancing alternative, the state’s test.

1 provides: Constitution passed restraining opinion, “No law shall be or the free restrict- ing write, freely whatever; speak, print any subject every on person responsible right.” for shall be of this abuse 2 Robertson, 402, 649 (1982), So named for State v. Or P2d the case that applied first described and We the framework. include an extended discussion of rationale, Or

Robertson and its at 296-97.

I. FACTS AND PROCEDURAL BACKGROUND following supported facts are the record. Angels, operated business, an “adult-oriented”

Defendant Roseburg. Angels performed “shows,” offered a menu of to be upon groups payment of a for individual customers small presented

fee. The shows were in a small room on the

premises. Angels policemen occa-

Undercover visited two paid requested During visit, the officers

sions. first “toy Angels employee into A female led them show.” among proceeded “perform” by, for them other

room and things, inserting

removing clothing dildo and her her and a

finger vagina. During visit, into the second the officers her per- girl During

paid show, a that two women for “two show.” against striptease, a rubbed their breasts in oral sex with one another. the officers

formed engaged

chests, and the defen- visit,

After the second officers arrested charged performers. later was

dant and the Defendant promoting show, two counts of a live sex

indictment with prostitution, promoting ORS 167.062, one count of

ORS compelling prostitution, 167.017, ORS

167.012, two counts of using display conduct, a of

and of a child in sexual two counts (the on the fact that 163.670 latter two counts are based

ORS age). years performers under 18 of

one defendant’s was arguing, indictment, trial, to the

Before defendant demurred

among things, 167.062, face, on and ORS other that ORS its applied issue, free

167.012, as to the conduct at violate

expression guarantee 8, of Article speech guarantee in the First and the free

Constitution trial Constitution. The

Amendment United States demurrers, proceeded

court overruled the case charges. of all

trial. Defendant was convicted appeal Appeals, defen- to the Court

On his direct ruling assigned on alia, to the trial court’s error,

dant inter facially again arguing is 167.062 demurrer, that ORS

his that 167.012 unconstitutional

unconstitutional and ORS Appeals majority applied A of the Court

as to his case. majority arguments. Appeals

rejected The Court of both proposition argument,

began by accepting, the sake of qualifies “expression” a live sex show has content that App Ciancanelli,

under Article section 8. State v. 181 Or (2002). Utilizing analytical P3d

7, framework for

challenges under Article section that this court set out in Appeals majority

Robertson, Court of nonetheless con- falls a

cluded ORS 167.062 within “well-established” general exception prohibition

historical to the in Article I, against expres- that, terms,

section sion. Id. at 19. The laws their restrain

majority support found for that conclusion dating

in line of statutes and cases back the seventeenth

century suggest public nudity which, whole, taken aas long subject governmental sexual conduct have been a

regulation punishment major- in the United States. The

ity early days Oregon, that, also relied fact it expose private parts a crime

was one’s or otherwise to way decency,

exhibit adapted in a oneself that is “offensive to or is thoughts

to excite vicious or lewd Id. acts.” at 12

(quoting Oregon, p (Deady §48, General Laws of ch 632, 559 1845-1864)). Appeals majority

In a similar vein, the Court of held subject (promot-

that the conduct that is the of ORS 167.012

ing prostitution) wholly longstanding also falls within his- exception

torical fall within such an And, section 8. because does

exception, majority concluded suggesting if

even defendant were correct some prohibited by “expression,”

conduct ORS 167.012 is or can be

that fact would not raise a constitutional issue. Ciancanelli, App Or at 28-31.

II. METHODOLOGY argues review,

On defendant that the Court of majority’s

Appeals analysis contrary holding to this court’s Henry, (1987), 510,

in State v. 520-23, Or 732 P2d 9 that early sexually explicit expres-

such restrictions on or obscene

sions between adults as have existed not were “well early the

established” at time that freedoms of adoption at the I, time the of Article sec- argues Appeals

tion 8. Defendant also that the Court of relied entirely pertaining on

almost cases and to statutes “lewd” nonconsenting public, pointed

conduct before a to no real sexually of private,

evidence of the historical treatment for adults.3 staged consenting

explicit performances

For state not dwell on whether part, its the does a live show or prosecution prosti

criminal for sex promoting of the exception” purposes falls within a “historical

tution Instead, argument it focuses its

Robertson framework. (1)

two the issue are directed at con that statutes at points: (2) that, any event, and in the entire

duct, expression; it is framework be abandoned because

Robertson should history what and teach about language

“inconsistent with constitution’s authors.” [Oregon] intentions in recent latter the state notes

Respecting point, to con this court has utilized a consistent

years, methodology of the Constitution and has stated Oregon

strue provisions intent ultimate is to ascertain the

repeatedly purpose that its and who voted people

of the framers of the provision’s 38, See, Inc., Meyer, it. Stranahan v. Fred 331 Or e.g.,

adopt (2000)

54, 11 and (describing methodology purpose). P3d 228 this court did not construe state further asserts in 8, section Robertson means of methodol circumstances, that, under those

ogy. suggests The state court, on Article section Con Before this defendant focuses However, directly applies argues, in ORS he also either stitution as 167.062. arguments appeals, his this reference to in the Court of briefs to court his (1) that: violates First Amendment to the United States Consti ORS 167.062 (2) conduct, 167.012, tution; applied Arti both on its face and to his violates ORS (3) Oregon Constitution; in cle certain evidence obtained suppressed the searches were of his should have been because searches business (4) unlawful; charges compelling prostitu acquittals he entitled on the was 163.670, conduct, tion, 167.017, using display a in a ORS and child of sexual ORS finding support a that defen in the was insufficient to because the evidence record (5) was, fact, minor; question the state was dant knew that the child during failed, touching parts perform required, prove of intimate sexually gratifying actually performers; purpose to the ances (6) for the of and was was pursuant phone tap police taped have to a order should conversation that entirety; police tape suppressed failed to the conversation its

been because (7) “Angels,” operat rights like were violated because businesses defendant’s counties, subjects investigation and ing criminal have not been in other prosecution. agree must be we with that his ORS 167.062 convictions Because defendant argu- the first of those we need not consider overturned under Article application We ments, Amendment to ORS 167.062. pertaining First constitutionality argument, pertaining of ORS to the do the second address opin- majority dissenting 167.012, argument discussed in the was because arguments remaining do not Appeals. conclude that

ions in the Court of We merit further discussion.

289 8, set and Article should Robertson should be aside present interpreted means this court’s method-

ologicalparadigm. Stranahan,

In this court summarized the circum- salutary spite which, in

stances under of the doctrine stare arising

decisis, it will reconsider rules out of earlier decisions

respecting Oregon Constitution: willing “[W]e prеviousruling remain to reconsider under Oregon party presents Constitutionwhenever a us a principledargument suggestingthat, decision, in an earlier wrongly wrongly this court consideredor decidedthe issue question. giveparticular arguments Wewill attention to present meaning that either new information as provision the constitutional at issue or that demonstrate part somefailure on the ofthis court at the time ofthe ear- paradigm considering lier decisionsto followits usual for construing meaning provision question.” ofthe argued

Stranahan, at noted, 331 Or 54. As the state has paradigm”

in Robertson, this court failed to follow its “usual construing provision Oregon of the Constitution. paradigm”

The “usual referred to in Stranahan for analyzing original provision Oregon an Constitution

(such 8) spe- Article section is one that this court first cifically identified and Pearce, described Priest v. 314 Or (1992).

411, 840 There, P2d we indicated that our search original

for the intent of those who drafted provision separate topics:

constitutional would address three wording provision,

the rounding of the constitutional the case law sur- leading

it, and the historical circumstances to its

adoption. purpose inquiry Id. at 415-16. The of our under the methodology wording [of

Priest is “tounderstand the the con- provision] light way wording

stitutional in the of

would have been understood and used those who created * * * provision apply faithfully principles and to Oregon

embodied in the stances as those circumstances arise.” to modern circum- Constitution v. Smothers Gresham (2001) (internal Inc., 332 Or

Transfer, 83, 90-91, 23 P3d 333 omitted).

quotations and citations Priest,

In the decade since the court decided this consistently applied methodology

court has to construe a e.g., provisions Oregon See, Constitution. number of (1994) Chartier, 422-28, 319 Or 879 P2d

Neher v.

(utilizing methodology ofthe construe Article Constitution); Phillips, Or 296-97, Greist v. (same (1995) (Amended), respecting Article VII

906 P2d 789 Constitution); Keisling, Oregon v. 3, of the Vannatta

section (same (1997) respecting P2d 514, 529-36, 324 Or 931 770 Constitution); Oregon State v. II, 8,

Article section (2004) (same Vasquez, P3d 604-13, 336 Or 271 (Amended),

respecting VII and Article Constitution). 5, of the willingness

Relying expressed on this court’s allegedly erroneous constitutional

Stranahan to reconsider proffers Robertson, an alternative rule to

decisions, the state wording by exposition

supported of, of the an extensive

history respecting, law decided under Article and the case sup- equally weighs in able brief Defendant with an

section 8.

porting framework, amici offer and various Robertson arguments, help. addressing however, Before those

further respecting requests that this court wish to add note

we doctrine.

reconsider constitutional respect principle dic for the of stare decisis

A decent fully that its considered that this court should assume

tates correctly way, prin

prior decided. Put another cases are party change seeking

ciple that the ofstare decisis means affirmatively per

precedent responsibility must assume precedent.

suading we abandon that us that should may responsibil- that add to

Various considerations Many

ity. deci- such consideration is time. The most common precedent Thus, in later decisions. of this court serve as

sions precedential signif-

disavowing one case undermine others.

icance of several case illus-

The Stranahan and this contrast between allegedly foregoing principle. Stranahan, In

trates the years less ear- been rendered than 10 decision had

erroneous intervening precedents on the earlier had relied

lier, and few Corporation Lloyd P2d 446 Or v.

case, Whiffen,

(1993). majority simply earliest acted at the The Stranahan analyt- perceived

possible it moment to correct what Lloyd immediately preceding case, made in the

ical mistake

Corporation. present case, contrast, involves a chal-

lenge many Robertson, to the also cases

this court has decided since 1983 that have utilized its

methodology. foregoing

It state, follows from the that the in order prevail persuade case, us, first, in this must con

stitutional rule that it attacks was not formulated either appropriate paradigm by

means of the some suitable sub accomplishes

stitute. If the state then still task, it has persuading it

before the more difficult task this court that

application appropriate paradigm establishes

challenged Finally, constitutional rule is incorrect.

assuming us of able convince the incorrectness challenged persuade rule, state must us when passage precedential

the lenged of time use chal overturning

rule in, is factored the rule will not

unduly complicate cloud or the law. respect

With to the first above, task described we

acknowledge length that Robertson does not discuss at the

wording, history surrounding particular or case law the captured

clause that has the is, state’s attention —that the likely, of I,

“abuse” clause Article so, section 8. That is most parties emphasize

because the we in that did not such, case it. As

properly may request consider the state’s that conduct we complete application appropriate paradigm

a more of the to aspect I, of Article than the Robertson court upon doing again

was called to In so, however, do. we once

emphasize arguments that our consideration such of in this any suggest

or other similar case does that we automati-

cally validity holding doubt the of the in the earlier decision. explained respecting question, principle

As we have assumption going

of stare decisis dictates our into the just

inquiry way subsequent the other And, around. as our

analysis detail, will demonstrate in our of reexamination response argument

Robertson in to the state’s us to leads con-

clude that the state has not established, accordance with incorrectly

its above, burden discussed that Robertson con-

sidered or decided the constitutional issues that the court

there addressed under Article section 8. paradigm requires us discussed,

As the Priest to persons Article sec intent who

search for the (1) separate the text of the constitu

tion in three sources: (3) (2) surrounding provision; it; law

tional case leading adoption. turn its We

historical circumstances process. paradigmatic

III. ANALYSIS OF ARTICLE SECTION 8 Wording

A. noted,

As provides:

Constitution expression the free passed restraining

“No law shall be write, restricting right speak, print or opinion, or whatever; every subject person shall be

freely any on right.” for the abuse of this

responsible legislature provision

The is directed at the first half of the * * *.”). (“No passed lawmaking be bodies law shall other categories provision prohibits two of laws:

The enactment of ] (1) exрression opinion,” free those that “restraint

(2) print ] speak, [ write “restrict or those that subject category

freely any latter of laws whatever.” The

appears with various modes of communication deal (i.e., writing), speech, printing, or while the

that use words category seemingly directed at mode

first includes laws category “expression” “expression.”4 is nar- The broad specification expression

rowed somewhat (1828) Dictionary Language English An American Noah Webster’s following “expression”: in its definition of

included utterance; declaration; declaring representing: uttering, “2. act of public

representation; of the will.

‡ ‡ ‡ ‡ representation subject; painting, lively as the of the In natural and “5. countenance, particular passion. eye, action or of the of the music, tone, grace, or sound suited to In modulation of voice “6. or reality

any particular subject; gives life to ideas and manner which sentiments.” “express,” (Emphasis original.) the word in relevant Webster’s definitions of Also is

including: words, speak. utter; to

“2. To to declare ‡* * * “* arts; by to form a like- represent ‍‌​​​​‌​​‌​​​​​​​​​​​​​​‌‌​‌​​​‌‌‌​​‌​​‌​​​​​​​​​‍or the imitative To or show imitation “5. * * *

ness; painting sculpture as in or

293 expression phrase, “expression “opinion.” opin of an of That appears expression way,

ion,” refer to thus to some appraises object, judges person, action, or an or idea. But the

concept opinion not in terms limited is communi by expression spoken, words, i.e.,

cated means of ten, that is writ printed. phrase example, could,

or The include painting, photog

nonverbal “artistic” forms like

raphy, designed convey dance, which often are some

thing about communicator’s world view. prohibited by categories

The two oflaws that are part distinguished

first of Article way by another the choice of the terms “restrain” and — Respecting say terms,

“restrict.” it those is sufficient here phrase referring

that we read first as to laws that punish expression opinion6

restrain or and the second

phrase referring speaking, writing, as to laws that limit or

printing any subject. say, very on that is a Needless broad

prohibition. precludes any It restraint on most forms of limiting restricting as well as laws at directed or

any conceivable kind of communication. (“but every per-

The second half Article responsible right”),

son shall be for the abuse ofthis describes exception (i.e., guarantee or modification to the broad right”) import

“this clause” set out in first half. ofthat “abuse

depends meaning on the intended two words—

“responsible” and “abuse.” known;

“6. To or show make to indicate.”

Id. An, Dictionary English Language “opinion” Webster’s American defined

as: judgment statement, any proposition, “1. The which the mind forms of event,

theory supported degree or truth falsehood of which is of evi- probable produce knowledge dence that renders but does not or cer- absolute * * * tainty;

í}; ;{í í{í judgment persuasion; religious opinion.” opinion; political “3. as Settled describe, Although, import legal as we shall the common of the word speech “restrain” in the context of to the discussion restraints was limited schemes, prior licensing support term

idea we find little for the idea that the was now, intended drafters have such a limited connotation. Then or can) (and punishment any prior threat of could be as much a restraint on licensing scheme. may “responsible” of in a number

One be for abuse

ways. logically Although as I, 8, could be read Article section unlikely

referring only responsibility, we to think moral those framers of the Constitution or

that either the who voted to

adopt a have viewed moral admonition it would provision subject appropriate their

as for a substantive an inescapable term think it Instead,

constitution. we accountability referring legal to for

must be read as expansive right first clause

“abuse” of the described does not make I, However,

Article section 8. the word alone example, legal accountability lim- is whether,

clear such may damages, to or extended criminal

ited to civil also be

punishment.7 meant, at or noun, used the term “abuse”

When as I, 8: it was in Article section

around time that employment;appli- improper use; or “1. Ill treatment wrong pow- purpose; ofour natural cation a as abuse privileges; rights; religious

ers; an ofcivil or of abuse abuse advantages, etc.

* * ^[**] meaning; applica- improper use or

“5. Perversion of

tion; as an abuse ofwords.” Dictionary English Language

Webster, An American original). I, (emphasis “Abuse,” in the context Article improper appears use of is, use—that 8, thus mean

section way purpose provided by right in a or for the first clause improper standard, under some unidentified Beyond provision

wrongful. fur- offers no that, however, granted first

ther hint to how abuse of the as distinguished from a 8, of Article section

clause proper right.

use

7According Webster, “responsible” meant: answerable; account; accountable; reposed or for as for a trust “1. Liable to

a debt.” English Language.

Webster, Dictionary An American

B. Law Case

Following paradigm, our we turn to a review of cases decided under Article section before decision. We think that it is fair to summarize

Robertson they saying rely, expressly

those cases implicitly, tended to jurisprudence.

on federal First Amendment When explicitly issue, was at this court tended permitting view the abuse clause of Article (as punishing opposed imposing prior laws aimed at on) expression e.g., See, Jackson,

restraints itself.8 v. State (1960) (sustaining 349-52, 224 337, Or 356 P2d 495 indict- selling, distributing, possessing

ment for book; obscene

observing Oregon that Article I, 8, section ofthe Constitution

appears adopt Blackstonian that view freedom of only restraint); prior City

means freedom from v. Portland (1961) city (although Welch, 308, 229 Or 322, 367 P2d 403 licensing

movie I, 8, ordinance violated Article section prior

because it provision restraint, amounted to that constitutional prohibit sending obscenity “does not convicted deal- (1922) jail”); Laundy,

ers to State v. P 443, 103 Or 204 958 (criminal syndicalism punishing speech laws aimed at 8).

advocates revolution did I, not violate Article section

Although pre-Robertson system- no case contains a analysis meaning standing

atic I, of Article section

alone, the Jackson court made some effort in that direction. quoted liberty

The court there the Blackstone on issue press analysis liberty and noted that Blackstone’s —that press prior

of meant freedom from restraint —had

been criticized at least one notable constitutional scholar eighteenth-century

as unworkable and inconsistent with his-

tory. Having Jackson, 224 Or at issue, 346-47. identified the expla-

however, concluded, Jackson court without farther analysis, “adopt[s]

nation or I, Article section 8 the for- [Blackstone’s]

mula of Id. at Commentaries.” 348. put holding defamatory We to one side this cases statements court’s history recognized throughout

“have been this state as an abuse of the person responsible provisions of free for which a to be held under the (1979). I, Green, 99, 118, of Article section 8.” v. Wheeler 286 Or 593 P2d 777 parties properly governmental speech, on here focus restrictions on and we so as do well. brings case as we

That us to Robertson—the present noted,

have the source of our framework has become analyzing I, 8. that arise under Article section We

for issues doing so, note detail. Before we

discuss the case some way,

passing that, is curious should in a it that Robertson disputes lightning I, rod under Article

have become the (and is) straightforward face, a

section 8. On its the case was comparing with the Constitution

effort at statute Nothing determining whether the two could co-exist. opinion explicitly, announces, last intends to at scope interpreting the a new and different standard for

state 8.

of Article section challenges under the First

Robertson involved section to the then-current ver-

Amendment Article defining the of coercion. The court

sion of the statute crime argument, prefer- the First Amendment

declined to consider

ring analysis particu- map utilize an that focused out and

larly Oregon’s provision, free on

8.

Drawing comments case, in an earlier State v. (1980),

Spencer, P2d the Robertson 289 Or opined 8, is restriction on law-

court that Article enacting prohibiting that are them from restrictions

makers, expression: their terms at

directed prohibits above, lawmakers “As Article section stated enacting that focus on the content

from restrictions speech writing, is that content itself or either because socially offensive, it is or or because deemed undesirable consequences. principle thought This is to have adverse Spencer,supra. applied must It means that laws State v. accomplishment proscribing pursuit for- or focuson suppression speech or rather on the bidden results than writing as a to someother either as an end in itself or means legislativeend.” say, went on to

Robertson, 293 at 416-17. The court then Or exception specifically, is to that that there

however, rule — per- restraining expression are at that laws that are directed wholly “scope confined restraint

missible when the exception well established that was

within some historical expression guarantees of freedom the first American

when adopted guarantees

were and that then or

demonstrably not intended reach.” Id. at 412. The specifically examples, “per- identified,

court as the crimes of

jury, crime, solicitation or some verbal assistance forms forgery contemporary

theft, and fraud and their variants.”

Id. next held that, Robertson court even when a result,

statute is written to focus on some it forbidden is sub-

ject scrutiny proscribes to closer if it one or more modes of a means to that end: proscribed speech writing,

“When the means include

however,even a law written to focus on a effect forbidden * * * appears must be scrutinized to determine whether it privileged

to reach communicationor whether it can be ” interpreted to avoidsuch ‘overbreadth.’

Id. at 417-18. The hand, court noted on the other when only against causing

a law is directed effect, a forbidden

person causing accused of that effect means of * * * “would be left to assert that the statute could not consti-

tutionally applied particular expres- to his words or other contrary [A]rticle

sion, not that it was drawn and enacted say, person

I, section 8.”Id. at 417. That is to would have object applied” to the statute on narrow, “as basis. inquire directly

The Robertson court did not into the people

intent ofthe who drafted and Article section methodology analy-

8, or mention other as a basis its points proposi- However,

sis. the central in Robertson—the

tions that Article is directed at lawmakers and precludes adoption

laws, and that of laws that are restraining expression directly directed at from cer- —derive provision.

tain words of the noted,

As the Robertson framework has become the examining any challenge

consistent basis for section 8. according under

Among many cases have been decided particu-

to that framework are a that are number

larly they attempts here, relevant involve because ban

regulate expression that has sexual content. In State v. (1987),

Henry, example, 302 Or 732 P2d 9 for this court pro- holding statute the Robertson framework

used hibiting possession violated the free of obscene material guarantee

expression 8, because it was I, of Article Notably, type expression. terms, at a

directed, its prohibitions rejected contention that

court obscenity the state’s guarantee: exception a historical

fall within legal prohibi- was able to show that various

While the state during publications existed on “lewd” conduct and

tions Henry century,

eighteenth comb con- nineteenth exception equiv- there no “well-established”

cluded that was exceptions pexjury, acknowledged libel, to the

alent

forgery. Id. at 520-22. City Tidyman, 306 Portland v. In the later case of (1988), attempted City Portland P2d 242

Or outright,

regulate, prohibit obscene rather than zoning

by enacting restrictions on “adult” bookstores certain zoning city prefaced The restrictions

and businesses. “findings” caused “adult” businesses to the effect that

with argued to court that those effects and this

certain harmful

findings directed at that the restrictions were established noting expression. After than at effects,

harmful the ordinance did not rather described in make the adverse effects regulatory findings standard, element zoning Tidyman ordinance was concluded that court Article section 8. and, thus, violated

directed at

Tidyman, 306 Or at 185-86. recently, 536, 920 323 Or Stoneman, v.

More State (1996), applied the Robertson framework court

P2d 535 this purchas producers directed at the a criminal statute sexually engaged reproductions of children ers of visual

explicit examined in its con the statute This court conduct. harmful effect— directed at a that it was

text and found unlawful sexual

exploitation that it made children —in necessary exploitation element of violation.

such passed muster therefore that the statute

court concluded Id. at 550. Article section 8.

under foregoing illustrates how cases discussion of

Our years applied frame- the Robertson has

this court in recent challenges. cases, In none ofthose Article section

work to systematically attempt evaluate court

however, did this surrounding

the text and other relevant material people 8, to determine who drafted and what provision by it. intended summary

A fair of all the cases that this court has that,

decided under Article section would be while earlier (such Jackson) (such point way, cases one and later cases Henry) point another,

as Robertson and the later cases do not

expressly overrule the earlier ones. We turn to the historical surrounding adoption provision.

circumstances of the

C. Historical Circumstances when viewed in the light both of earlier and contempororary thinking argues court,

In its that, brief to this the state concept speech expression, about the of free and it is clear

that Article section 8, as it was drafted in was only prohibition prior According

intended as a on restraints. state,

to the it also clear is that the “abuse clause” ofArticle I, recognition power

section was inserted ofthe ofthe state punish, any speech after the fact, that, because of its anti legislature tendencies,

social deemed to be an “abuse.” argument support.

The state’s has some historical

Certainly, during eighteenth that, there is evidence the late early

and nineteenth centuries, most American courts and

legal speech treatises tended to treat of free aas

very guaranteeing one, limited to the individual a free- prior widely accepted

dom from fact, restraint. In it now is adopting prohibition “abridging

that, in on laws the free- speech, press,”

dom of or of the as the First Amendment

phrased many, it, if not most, of the framers of the First thinking English

Amendment in terms of the common- speech, prohibited prior

law notion of freedom of which press preclude

restraints on the but did not civil or criminal

prosecution, blasphemous, after the fact, obscene, for libel- speech. generally Levy,

ous, or seditious See Leonard W. (1985)

Emergence (setting a Free Press 220-81 out that of view).9 Levy law, popular writings, Professor examined case and material from other prerevolutionary period liberty and found that the American notions of of speech press remarkably English and at that time were consistent with the com Levy history mon law as described Blackstone. also examined the immediate of drafting adoption Rights although proponents of the Bill of and found throughout the nine- moreover, that, clear,

It is legal equated century, popular treatises the most

teenth guarantees free and state constitutional

First Amendment e.g., prior primarily See, restraint. with freedom from United Rawle, A View the Constitution

William States America 1970) (“A (1829) super- previous (reprint ed arbitrary pro- power intendency press, to direct or of the punishment publications withheld, are

hibit its * * * necessary publications dangerous for offensive religion.”); government

peace M. Thomas order

Cooley, Limitations A Treatise on the Constitutional

(1868) (“[I]t commentary and received as is well understood liberty press provision [i.e., the First this previ- prevent intended to all such

Amendment], that it was practiced publications upon as had been

ous restraints other Commentaries (1858), Story, original); Joseph (emphasis governments”) 667-68 the United States on the Constitution Ralph Philip reprinted Lerner, Kurland and B. (“It (1987) plain, is The Founders’ Constitution

eds., 5 imports language more, no this amendment of

then, speak, right every write and any prior have a man shall

than print restraint.”). subject opinions whatever, without

his suggests, foregoing of the most discussion

As the right of the constitutional American discussions mainstream attribution) (sometimes heavily speech without

to free drew pertaining explication law the common of

on Blackstone’s press:

freedom of the generally press, their rhetoric about freedom of the bill often raised concerns pre- distinguish phrase it from the any explanation that would of that

was devoid of Levy suggests that also Levy, Emergence Press at 144-219. vailing a Free view. Con- very among the United States actually the framers of was little interest there Rights, personal rights and that announcing in a Bill of fundamental stitution Congress James if it had not been for project died in would have the entire persistence. Id. at 220-66. Madison’s (and, Rights that, shortly adoption Bill of Levy acknowledges of the after 1798), Act of there were the Sedition particularly, after the enactment of more repudiation law. of the common as a attempts explain the First Amendment expla- times,

However, those after-the-fact Levy suggests in the context of of the views at the time of the framers’ suspect, at least as evidence nations are adoption. 309-49. Id. at First Amendment’s blasphemous,

“[W]here treasonable, immoral, schismatical, punished by English seditious or scandalouslibels are * * * liberty press, properly understood, law is infringed liberty press

no means or violated. The of the is state;

indeed essential to the nature of a free but this con- laying previous uponpublications, sists in no restraints pub- innot freedomfrom censurefor criminal matter when Every right lay lished. freeman has undoubted to what * * * pleases public: pub- he sentiments beforethe if but he improper, illegal, mischievous, lishes what is he must * * consequences temerity. take the ofhis own *. Thus the only free;

will of individuals is still left free-willis the the abuse of that * * * object legal punishment. found, “Sotrue will it be licentiousness, to censure the liberty press.”

is to maintain the ofthe England

William Blackstone, 4 Commentaries on the Laws of (1783 ed) 1978). (reprint Following

151-52 ed Blackstone, legal government’s power

American treatises described the punish press, the “licentiousness” of the or the “abuse” of speech. Cooley, of free See A Treatise on the (the right guarantees

Constitutional Limitations at 420 liberty press, licentiousness”); Story,

“the not its (prohibiting prior

Commentaries on the Constitution at 670 permitting punishment “dangerous

restraint but or offen- proper

sive” because “the ofwill individuals is [and] object

still left free the abuse ofthat free will is the legal punishment”).

But what constituted “abuse” under that formula point, legal

tion? again On that the mainstream treatises pronounce

tended to treat Blackstone as the oracle: His liberty publications

ments —that does not extend to “improper, illegal”

that are mischievous, or or that are “on a * * * impartial adjudged pernicious fair and trial of a ten dency” repeated e.g., Story, See, and endorsed. 2 —often (repeating Commentaries on the Constitution at 670-71 Blackstone).

foregoing phrases many respected from Thus,

early century jurists legal and mid-nineteenth and writers

appear to have believed that “abuse” covered at least some

speech governing authority deemed to have public peace.

anti-social tendencies or to threaten the That

302 purporting of of to be a restatement formulation,

Blackstonian categories English extended to broad law,10 common apparently, including, speech libel, libel, blas seditious 11 obscenity.

phemy, and century American whole, the nineteenth

On the appeared

judiciary of the that limited view to have shared e.g.,Respublica speech. See, Dennie, v. Yeates to free 1805) (“Publish (Pa you please as 405-06 402, 2 Am Dec you control; are answerable without but

in the first instance you proceed community individual, if to the

both to Blanding, lengths.”); v. Commonwealth

unwarrantable Mass speech (Mass 1825) (3 Pick) (stating free 304, 313-14

provision Constitution was in the Massachusetts publication previous prevent restraints

intended to including abrogate the then- law, common not

does prevalent understanding prosecu- that, in libel

common-law defense); Commonwealth ‍‌​​​​‌​​‌​​​​​​​​​​​​​​‌‌​‌​​​‌‌‌​​‌​​‌​​​​​​​​​‍asserted as truth not be

tion, 1838) (Mass Pick) (20 Kneeland, 37 Mass v.

(the provision speech the free intent behind obvious prevent the enactment was to Constitution

Massachusetts upon publication). direct restraints

license laws or other slightly judiciary to a would concede most,

At that, in addi Blackstonian version of the more liberal view— speech prohibiting prior and of restraint, freedom

tion to impunity, “right publish, incorporated press with justifiable good ends, whether motives, and for

truth, with People magistracy, v.

respects government, individuals.” 1804) (NY (reciting that 392-93 prosecution Cas

Croswell, 3 Johns the Alien and

definition under of a in the context Reprint Act); Pugh 143, 149 Starbuck, 1 Ohio Dec v.

Sedition

10Thus, 1868, Cooley wrote: imply press lib- liberty “[W]e understand long immunity publication, it is not so erty complete publish, For character, as the law affords. standards when tested such in its

harmful were in force rules which to the common-law we must look these standards guaranties were established.” when the constitutional at 422. Cooley, Limitations the Constitutional A Treatise on the common-law consistent with Notably, that it was Blackstone believed public entirely attack on a press punish truthful even freedom of the

notion of publication have would sovereign that such a determine figure, could because Blackstone, peace. 4 Commen public See “tendency” to disturb an undesirable England at 151-52. the Laws taries on

(Ohio 1845) Croswell). Sup (quoting II Kent, See also James (3d 1836) (accept-

Commentaries on American Law 17-25 ed

ing criminally punished view that individuals

challenging government print, in individuals or the but stat-

ing contrary publication Blackstone, the truth of the defense).

should That variation on be available as challenge legislature’s

Blackstone’s formulation power did not punish speech, undesirable but did extend to defen- punishment

dants threatened with criminal opportunity for libel an good

to demonstrate their own motives and the question.

truth of the matter

Interestingly, foregoing right view of the of free

speech contrary, many respects, philosophy was to the Many leading American

had animated the lights Revolution. of the revolutionary period greatly

of the American were by rights” philosophy

influenced the “natural that was pop-

advanced in the works of John Locke and that later was republican by political

ularized, and fused with the tradition,

John Trenchard and Thomas Gordon under the nom de

plume generally Levy, Emergence “Cato.” See a Free (describing noting Press at 109-14 Cato’sLetters and quoted, by

letters revered, were and recommended the likes Benjamin Adams,

of John Jefferson, Franklin, Thomas Dickinson). Quincy,

Josiah and John On the issue of freedom speech, Cato wrote: Thought, Thing

“WithoutFreedom of there can be no such Thing publickLiberty, Wisdom; as and no such as without Speech; Right everyMan, Freedomof Whichis the as far Right another; as it doesnot hurt and controul only ought suffer, this is the Check which it ought Boundswhichit to know.” Speech,”

“Of Freedom of 4, 1720, No Feb in John Essays Gordon, Trenchard and Thomas I Cato’s Letters: 1971).

Liberty, Religious (reprint Civil and ed

To the more libertarian adherents of the natural

rights philosophy, freedom of was an “inalienable” right part package is,

natural ural it was not of nat- —that rights community that individuals ceded to the order society. protections Rather, obtain and benefits of civil right always retained, was the individual as he or rights natural adher- in a state ofnature. Even for

she would According to the

ents, however, the was not absolute. rights theory, rights, as freedom of

natural inalienable such they speech, in the bounded, were

conscience rights equally of other nature, fundamental

state of any authority at all to act in If the state had

individuals. these rights

protected the fundamental areas, it was to enforce society protect individuals, as a whole

of other not to majority’s promote or to

from undesirable “tendencies” decidedly greater good. from the That is different

idea of the every- “abuse,”12which extended to

Blackstonian notion of contrary public

thing to the that Parliament had identified as (a

good purely order, values like that included social notion

morality, religion). and particularly in reaction to the ill-advised

Thus, and early political Act of some American

Alien and Sedition speak of free- in terms of an “absolute”

thinkers would necessity only by speech press, of and bounded

dom of rights

avoiding injury equal another individual. of to example, argued the First Amendment

Madison, for press, Congress any power regulate speech or the to

denied to expressed retrospectively,

prospectively still concern reputations remedy injury to their

that individuals have suggested laws. See that was available under state

and Virginia Report

generally Resolutions Madison, on the James

(1800), reprinted Founders’ Lerner, Kurland and 5 The in (criticizing and Sedition Act 141-46 the Alien

Constitution at rejecting contrary the idea the First Amendment

as to merely adopted law with common

that First Amendment simplistic acknowledge to the Blackstonian it is somewhat describe We popular contrary rights philosophy that was at the approach being the natural fact, Blackstone, styled century. as an advocate for eighteenth in himself end of nature, writing the “law of philosophy, in his Commentaries that law

the natural himself, superior mankind, is of course being and dictated God co-eval with Blackstone, England at 41. any on the Laws obligation 1 Commentaries other.” indeed, However, end, it had to that Parliament in the Blackstone believed was — sharply categorized, ideas contrast supreme. he is Blackstone’s No matter how be— abridge except rights state inalienable with the idea of reserved or rights individual. rights of another those invades to the extent that exercise of Understanding Original Constitu Grey, and the Unwritten “The See Thomas C. tion,” Union, Essays York, ed., on the Six Toward a More in Neil L. Perfect (1988) (so 145, 152 asserting). Constitution posited St. Tucker speech). George to freedom of

respect restraint, as to the “except without liberty speech

absolute property, good other individual in his

injury any person, Tucker, Blackstone’s Commentaries: With George

name.” St. and Laws to the Constitution other, freedom, qualified abridged enjoy, or wMch he is to for the content government society. sake of and I there freedom in believe is no other sort of which man is concerned. freedom, freedom, thing, belongmg “The or is the same absolute what any law, compact, power by doing

to man before what he irntion of freedom be social uneontrouled is pleases, provided injury any he does no to other individual. If tMs def- surely be, applied press, ought press, to the it to if it, do, law, may personify may pleases by any I taking do whatever uneontrouled care, however, injury injury to do no individual. TMs can be by defamation, reparation slander or and should be made for it M a state of society. nature as well as in be, society, liberty, m civil nat- “But freedom or what is called is defined liberty, far, by good requires, public ural so restramed law as the and no far- * * * freedom, definition, applied press, to the and ther. Now let under this press precisely It will to the

what will the freedom of the amount to? amount power say, public good privilege publishing, requires: legislative as far as the the shall say, by press regulated that is will be law. If the freedom of sense, AJmendment, [First m framers ofthe word freedom was used tMs they say, Congress abridging the freedom of the meant to shall make no law freedom, however, regulated by Folly press, itself does not wMch is to be law. speak language.” such added).

Hay, Essays Liberty (emphasis Two on the the Press at 23-24

306

Although natural, notion of we tend to associate the impor- rights founding nation, it

inalienable with the of our important legal

tant to note that that idea continued as an political philosophy part

and until the latter of the nine- century.14 theory particular appeal

teenth The held for the participating great movement,

Americans in the westward

who often had moved west to avoid the constraints of settled

society place especially high and tended to value on indi- liberty.

vidual Records of the constitutional conventions of

pioneer replete states are with affirmations of the natural

rights theory,15 many of those states constitu- expressly declaring provisions preambles

tional or (1848), rights” e.g., See,

“inalienable natural ofman. Ill Const (declaring rights); § 1 XIII,

Art man’s natural and inalienable (1851), (same); (1857), §I,

Ind Art 1 Iowa Const Art Const (same); (1864), (1861), (same); § § 1 1 Kan Const Nev Const (same). (1848), (same); § § Some

Art western courts utilized Wis Const Art thinking opin-

natural-rights in their “general “police powers” rejecting doc- ions, welfare” increasingly being sup-

trine that was port used state courts always way private rights give to the

the idea that must public safety, good welfare, mоrals,16

social interest in

holding power that such is limited to or must be based injuries

actual to others.17 efficacy rights struggle natural over the significant defining political

played in the issue of the role century, slavery. rights ideas were taken

nineteenth Natural

up wholeheartedly by anti-slavery Republicans, who used slavery. challenge legality

them to Daniel Farber replaced by legal positivism rights-based Natural theories were not century after the War. See Steven J. dominated the twentieth until well Civil Inquiry Heyman, Righting and Limits the Balance: An into the Foundations (1998) (so 1275, 1299 noting). Expression, B

Freedom 78 U L Rev 15 See, e.g., description in Bruce of Iowa’s constitutional conventions Constitution, Rights Kempkes, the Iowa 42 Drake L Rev The Natural Clause of (1993) thinking expressed during (describing rights natural Iowa’s Consti 622-30 Convention). tutional 1855) (Ind 501, 63 See, Indiana, (leg e.g., 6 Ind Am Dec 391 Beebe v. State of intoxicating liquors theory prohibit of islature could not manufacture and sale (Ind 1855) (same). State, doing public good);Herman v. 8 Ind 545 so was for the 17 (Wis See, Kreutzberg, e.g., 114 Wis 90 NW 1098 State ex rel Zillmer v. 1902) (so holding). Sherry, History Constitution 258- A the American

Suzanna of (1990). anti-slavery Republicans But and abolitionists implications speech special of in the free

also had a interest message theory. rights was The abolitionist

the natural highly unpopular pro- States, United and

in most of the acutely

ponents message threat to aware of the of the by majority speech presented rule.18

free legislatures argued therefore Abolitionists —the majority power no constitutional

instruments of the —had supposed suppress punish speech ten because of its “bad peace. generally, public See, Michael K.

dеncies” vis-a-vis the Speech: People’s Darling Privilege” 10-13, Free “The

Curtis, (2000) tendency” (describing prevailing ration

194-215 “bad rejection suppressing unpopular speech of that

ale for and Republicans). However, and consis

rationale abolitionists rights theory, they

tent traditional natural acknowl with

edged God-given right limited to free was equal rights Heyman, Righting J. others. See Steven Inquiry Balance, An into the Foundations and Limits of (1998) Expression, 1275, 1297

Freedom 78 B U L Rev n 124 (quoting speeches writings including abolitionists, Bimey Elijah Lovejoy).

James G. and the Rev. general, then,

In can see that Article we history

was at a time in American when much of

legal community narrow, was content with a Blackstonian speech, of freedom of when a more libertarian

view theory

approach, with the natural which was associated initially had animated the American Revolution—still

enjoyed significant popular background adherence.19 That 1830s, By passed criminalizing pub the Southern states all had laws anti-slavery pushing leg

lication or distribution of sentiments and were for similar States, theory anti-slavery Congress islation in and in Northern on the .the incendiary public peace. Although unsuccessful was threatened South, anti-slavery speech of the southern lead their efforts to criminalize outside silencing slavery Congress in the United States ers did succeed in debate about agency, obtaining cooperation the United States Postal of at least one federal See, Service, anti-slavery checking spread generally, K. ideas. Michael (2000) Curtis, (discussing Speech: People’s Darling Privilege” 117-81 Free “The history). 19Perhaps notably, any body thought evidence of in nine most there is no concept century free

teenth America to the effect that the values involved against balancing government dom of involved a interests writes, century legal thought, one scholar the individual’s interest. Nineteenth (if either)

suggests question: Which one of those theories adopt I, 8,

did the framers of Article section intend to when

they I, included the in The “abuse” clause Article section 8? place question

first history that the direct look for answer to is history I,

ofArticle section 8. We turn to that now. part I, 8,

We know that Article section was

original Oregon Constitution and was derived from the free

speech guarantee in Indiana’s 1851 constitution.20 Charles

Henry Carey, Oregon Proceedings The ed., Constitution and

and Debates the Constitutional Convention 1857 468 of of (1926). acknowledged wording Jackson, As this court in Oregon widely peculiar Indiana, in and and was used beginning Pennsylvania constitutions,

other state Constitution of 1790. with the Jackson, 224 Or at 348-49. any specific There is no record of discussion ofArticle Oregon’s

I, 8, section at Constitutional Convention in 1857. during

However, we do have record of comments made proposed

Constitutional Convention about a amendment to provision that a

another of the draft constitution that shows Carey

range points present Specifically, ofview was there.

reports September delegate Perry Marple that, 9, 1857, on B. proposed I, amend Article section of the draft

moved to provide “prosecutions” libel, in

constitution to mitigation damages, given

truth in rather than “justification.” Carey, The Constitution and

Proceedings and Debates the Constitutional Convention Deady omnipresent 1857 at 309. The Matthew moved suggested, by provision protective21 and

make the even less

way illustration, that the editor of the San Francisco guilty power” regard

Bulletin of a “malicious use of with was appeared newspaper.

to certain that had that Id. at stories Horwitz, overwhelmingly by categorical thinking.” Morton J. “was dominated (1992). Law, legal American 1870-196017 The modem notion Transformation of speech, appear

balancing, including balancing idea of in the area of free did not until around 1910. Id. at 18. 9, provided: Indiana’s Article section interchange thought passed restraining and the free “No law shall be any subject restricting speak, print freely oрinion, write whatever; right every person responsible.” for the abuse of that shall be formulation, mitigating as a basis for dam Under truth would serve Dead/s complainant. publication public

ages related to the character of the when the Oregonian, Whig Dryer, then editor of the

309-10. Thomas bitterly suggested complained

newspaper, amend- about press suggested attempts to muzzle the and

ments as [which previous Article section

“the was become Delegate George ground.”

8] covered all the Id. at 310. Dryer apparently agreed sec-

Williams22 with required”

tion all that was and moved to strike “embraced altogether. provision pertaining A rather to libel Id. Dryer Deady

lengthy Deady decrying ensued, “debate” between with “irresponsible public press” Dryer strange

stating press if the were to be it would be villainy. Dryer denouncing corruption

debarred from apparent reference to Article said,

also strange judiciary

“it was also that the whole should lock together subject. newspapersspoke

hands onthis Whenthe any prominent of official—and told the truth —it was invar- ” iably characterized as ‘abuse.’

Id. dispute Deady Dryer suggests

The between agreement among delegates

there was no clear as to the

meaning of the term “abuse” in the context of Article sec- Dryer fact,

tion 8. In seemed to have feared a different kind of judiciary

“abuse,” in one which a conservative would abuse authority interpret Oregon

its Constitution to under- very Dryer’s

mine the view, freedom in Article section sought guarantee. appear

8, any Neither does it that there was dispute: delegates may

clear winner have con- ground,”

cluded that Article “covered all the but

they compelled clarify did not feel to further clause. abuse question original Oregon

As to the whether rights

Constitution reflects a Blackstonian view ofindividual rights

or, instead, focus, has a natural the evidence also is previously original

mixed. This court has noted that the con- legislative stitution, whole, as a reflects a basic distrust of (so

power. stating). Smothers, See 332 Or at 113 Such dis- rights-based

trust would be more consistent with a natural Williams, George prominent lawyer, Attorney a Portland later served as appointed General under President Grant. Grant Williams to be Chief Justice of States, Supreme appointment the United but the was not confirmed Court of the Senate. by delegates to the con comments made

world view. Certain theory. delegate support One convention

stitutional rights

argued a in the constitution on for inclusion of bill of spirit ground limit the “fractious” that it would

the majority “infringe rights on the of the individual

if it tried to Proceedings Carey, Oregon Constitution and

citizen.” Nee at 102 Convention

and Debates the Constitutional of 1857 of Smith). (comments delegate delegate Another Delazon necessary only

suggested rights to control that a bill of was people despotic are sover ruler and was irrelevant when Williams). (comments delegate George

eign. Id. at 102-03 ultimately opted to include a bill fact that the framers

The rights suggests acceptance indi the view that at least some rights subject to the whims of the not

vidual should

majority. counterparts in hand, unlike their

On the other Oregon

many states, framers of western any express announcement did not include

Constitution rights in their constitution. of man

the “inalienable” natural they

They men, “all when to announce that were content power right” compact, equal that “all are

form social is inherent people.” §I,Art 1. The absence of Const,

in the Or rights noted and natural was of “inalienable” declaration probably Oregonians time,23 did at the

decried some adopt As the constitution. affect the ultimate decision objection put contemporary is not it, “This

one commentator govern- really man favorable to State

sufficient to deter a voting Claudia Burton for the Constitution.”

ment from History Legislative Constitu- Grade, A

Andrew (Articles L Rev ID, I I and 37 Willamette 1857—Part tion (2001) printed (quoting letters to the editor 469, 491-92 1857). Argus Oregon in October

D. The Framers’Intent foregoing against historical, and textual,

It is background

jurisprudential the state’s that we must assess contrary to the framework is the Robertson

assertion that adopted people I, Article section and who drafted

intent ofthe Grade, History Legislative A and Andrew See Claudia Burton (Articles 469, II), L Rev 488-92 37 Willamette I I and 1857—Part

Constitution of 1857). (2001) Oregon Argus printed in October (quoting in the editorials and letters necessarily attempt

8. That assessment involves an to ascer- gathered,

tain, from the information that have the fram- we respect scope meaning I,

ers’ intent with to the ofArticle

section 8.

Turning I, our focus to the first clause of ‍‌​​​​‌​​‌​​​​​​​​​​​​​​‌‌​‌​​​‌‌‌​​‌​​‌​​​​​​​​​‍Article sec sweeping respect 8, terms,

tion one is struck its both with (“[ri\o legislative power passed restraining to the law shall be * * * added) restricting”) (emphasis or kinds of * * (“* expression protected expression opinion, the free or * * * right speak, print freely any subject write, whatever”) added). (emphasis fact, In the words are so clear sweeping keeping that we think that we would not be qualify

faith with the framers who wrote them if we were to down, water them unless the historical record demon clearly something

strated that the framers meant than other they

what said. As our recitation of the historical circum shows,

stances we have found Thus, no such demonstration. appears beyond dispute pro to us to be reasonable that the majority

tection extends to the kinds of that a many profanity, citizens in communities would blas dislike—

phemy, pornography physical even to acts, such as —and dancing explicit nude or other conduct, sexual that have an

expressive component. Thus, we have little trouble in con

cluding people who framed and part original Oregon 8, as Constitution prohibit broadly any restraining

intended to laws directed at

verbal or nonverbal of ideas of kind.24 people

We also conclude that those same intended to

provide exception prohibition legisla- to that broad —the provide legal ture could and even criminal remedies for right speech.

“abuse” of the to free That is evident from the people might disagreed

fact however have as to what expression,

constituted “abuse” of the of free no one in say “any because, We kind” whatever else be said about Article sec

tion we would turn it into an historical if footnote we were to declare that it expression commonly referred to forms of used in 1857. Radio and television (not film) go wholly Instead, unprotected. to mention thus would we take the view “expression,” concept scope as a used in Article section must have a con society’s expanding expressing apprecia sonant with methods of itself. The same (if all) wording many tion of the of Article leads us to state that art dance, painting, sculpture, music, photography have, generally and are forms — — having, accepted expressive components. (with George Hay) possible exception the

the United States government arguing, the never could time, at that

was remedy penalties,

impose undenia- a for an criminal even as expression. right of the of free

ble abuse pivotal foregoing the conun- leaves us to sort out

The scope ofthe inherent 8: What is the in Article section

drum right”?25 seen, on As we have based

term, “the of this abuse through swirling philosophical the mid- currents

the nineteenth opposing

century States, two answers United

suggest of the hand, one the framers themselves. On the may

Oregon intended that the section have Constitution they may classically construсtion, i.e., Blackstonian

receive a only need the limitation that satisfied that

have been expression legislative

placed a free was on interference with prior ability impose If restraints. that were of the

denial expression right free included case, ofthe

the then “abuse” majority.

anything On the that was deemed to be such Oregon Constitution have hand, the framers ofthe

other classically rights natural that the section receive

intended qua expression allowing punishment of

construction, expression, no case, an individual’s after the fact. In that

even right

responsibility free fundamental “abuse” expression

expression that caused some limited to would be rights equally

injury of other individuals. fundamental to the difficulty, there is no sound course, is that placing or the framers,” whole, into one “the as

basis for

However, reasons. clause. extend to the “free cross-reference “right We note that one That would be to read the we do not so read the reference is, speak, the use of the word write, “right” permissible phrase print specifically opinion,” construction of freely “right” “this to “this right” denominated on as those in the second clause could be any subject right” in that clause the second clause of phrases as such the second whatever,” are used in the first in referring only clause, first clause. and not to Article read to for two write, any speak, print First, imagine right “the it is difficult to how constituting time subject without from time to could he carried out whatever” Thus, phrase in the first clause would opinion.” the former “free Second, given matter, the oro- practical the latter. appear, to be subsumed as a likely people century prose, who it seems

tund nature of mid-nineteenth phrases the two intended and understood drafted and * * * “restricting expression” (“rеstraining free first clause unitary concept. print”) speak, to describe a write or categories. represented

other those Both at the views (the exchange Dreyer Constitutional Convention between much) Deady, and, above, described demonstrates as among

presumably, population voted 1857 to

adopt There Constitution. is scant evidence of (only philosophies overt collision between the two

exchange Dreyer Deady, might between above, described

qualify). Certainly, there is no clear evidence that one or the theory prevailed.

other unassailably

In short, no answer, correct based

entirely provision’s wording, history, any on the law, case or objective possible. question pres-

other evidence, is then foregoing impasse itself:

ents In the face of the about the showing

framers’ intent, can the state its meet burden of that contrary

the Robertson framework is to the framers’ intent respect Clearly,

with to Article section 8? it can do so if incompatible

it demonstrates that Robertson is with both possible meanings provision of that that we have

identified.

Doubtless, state could demonstrate that incompatible approach:

Robertson is with Blackstonian approach speech

The central tenet ofthat —that government may improper socially deems to be or undesirable punished not “abuse”—could be farther from the approach

Robertson hand, rule. On other the Robertson

appears entirely, largely, compatible to be if not with the

pure rights” approach “natural that we have described. As theory rights only speech

discussed, that natural holds that directly rights

that interferes with or harms the fundamental (either punishable civilly criminally) is other individuals or fully

as “abuse.” That notion is with consonant the idea

expressed although speech qua speech that, Robertson (which, punished, causing

cannot be acts “forbidden results” presumably, causing would include to other acts harm indi-

viduals) punished, if can be even that result reаched speech.26

means it, opinion As the Robertson has Article

“prohibits enacting from that on the lawmakers restrictions focus content of speech writing socially either because that content itself is deemed undesir- * * * offensive, consequences. thought able or because it is to have adverse It recognize, aspects of course, that some

We to the “nat-

Robertson framework have no obvious connection rights” theory speech it. In free as we have described

ural excep-

particular, states that there are “historical Robertson restraining prohibition free

tions” laws exceptions as restrictions on

and describes those guarantees

were “well established when the first American guarantees

freedom of then or in 1859

demonstrably were not intended to reach.” assuming However,

Robertson, 293 Or at 412. draft- convey something akin intended

ers Article rights” theory described, have Robertson’s

to the “natural we exception” idea not clash with that intent.

“historical Instead, does merely recognizes are well- that there certain

recognized traditional that fall under literal terms crimes prohibition, drafters

of “demonstrably” constitutional to abolish. The Robertson

did intend necessary acknowledge

court have realized that it was carry exceptions in out the drafters’

such historical order description then, of “histori- end,

intent.27 In the Robertson’s exceptions” is with the framers’ intent.

cal not inconsistent light long have of this court’s

We stated

standing the framework to resolve reliance on Robertson 8, ofdem arise Article section the burden

issues that under

onstrating is inconsistent with the that that framework people of drafted and Article section

intent the who party challenging the that framework —in this

8, lies with proscribing pursuit accomplishment or of

means laws focus on that must writing suppression speech on of or either as forbidden results rather than legislative end.” an end in itself or as a means some other

Robertson, at 416-17. 293 Or 27 suggesting recognize contains certain statements We also that Robertson pertains responsibility harm to individuals to civil for done that the “abuse clause” 412, recognize Robertson, We expression. at 433 n 29. further means of 293 Or (1983) 510, Lasswell, 121, Henry, v. 302 Or re 673 P2d 855 and State that In Or (1987) However, amplified suggestion. do that we not consider those 732 P2d possibility scope of crimi clause to foreclose statements about abuse punishment cause harm the fundamental when is used to actual nal rights fact, responsibility we that that sort of criminal individuals. In think other prohibitions fully explained of the between in terms Robertson distinction can be speech expression and those that are directed at are in terms at or that directed words, appear conflict to be serious harmful In other there does effects. theory rights court’s we have described and this com the natural between Robertson, Lasswell, Henry. sad abuse in ments about the clause foregoing

case, It the state. should clear from the

discussion that state to meet To the has failed its burden:

contrary, methodology applying in after set out Priest to

Article section we are satisfied that the Robertson frame- justified. generally compatible

work is That framework rights” approach

with the “natural that we have described as possible Moreover, source of Article 8. it is more approach

consistent with that than malleable indis- “balancing” proposed by

tinct test the state. therefore We will analyze challenges brought

continue to Article I, under sec- using (including

tion the Robertson framework Robertson’s exception).

notion of a historical applying

Before turn to the we task the Robertson appropriate

framework to the case at hand, we believe that it is exception” aspect

to address the “historical of the Robertson

analysis particularity. with more It has become clear to this opinion arguments

court, from below, state’s this commentary cases,

and other recent and certain in the aca professional

demic and literature,28 that some students of jurisprudence reading

this court’s are intent on the historical

exception broadly idea ofRobertson more than the Robertson exclusively

court intended. Those critics ofRobertson focus oft-quoted

the words of the test from and, Robertson29 from standpoint, exception” assume that a “historical is made by showing prohibiting

out that laws at issue widespread adoption

were more or less at before the Rights

federal Bill continued exist in this state after adopted. They

1859, when the Constitution was do so spite against Henry. thinking of the admonition such In emphasized case, this court guarantee press “the free constitutional will showing legal

not be overcome the mere of some speech writing. restraints on one or another form party opposing privilege a claim of constitutional must 28See, Landau, e.g., Jack L. Hurrah the Revolution: A Critical Assessment (2000). Interpretation, State Constitutional LOr Rev 848-50 excepting general We refer to Robertson’s statement from the rule restraints “wholly exception are that confined within some was well historical that estab guarantees lished when the American freedom first of of guarantees demonstrably that the then or in 1859 were not intended to reach.”

Robertson, 293 Or at 412. guarantees

demonstrate of freedom of replace to restrictions.” werenot intended earlier added).

Henry, (emphasis also that 302 Or at 521 We note

Henry warned that “‘contemporaneouslegislative should necessar- actions not

ily principles. given construing weight much when constitutional be are concerned with Constitutional draftsmen ” principles longstandingsignificance.’

broad (quoting Oregonian Deiz, ex rel Pub. Co. v.

Id. at 521-22 State (1980)). 277, 284, Or 613 P2d 23 on those sure,

To this court has not elaborated Henry party

passages explain must in what show from to demonstrate that the drafters of Article

order pre-existing to abolish a well-established

did intend expression.30 However, contains

restriction on Robertson view, in our are relevant

some comments

problem. opinion contains a

Section V the Robertson per-

lengthy taining havе dealt with laws examination how courts intimidation, extortion, and solicitation —laws that on “coercion”that conceptually prohibition

are related to part, in or in fall, and that whole

was at issue Robertson exception 213 Or at 421-31. The the historical notion.

within suggested, opinion, part that such laws

court challenges, upheld in the face of free

have been

generally action to the extent that the threatened would suggested independently The if executed. court

be that, unlawful appear respect did not statutes,

with to those courts the coercive effect that threats

be much concerned with court summarized have on hearer. Robertson

would results its examination follows: recapitulate, constitutional

“To we believe subject guar- print freely speak, write, or whatever meant to immunize in Article section was not anteed respects [the relevant to coercion

the use ofwords some 30 Henry, example, examined the evidence the state In this court “manifestly tending to at “obscene” materials territorial statute aimed offered —a youth” corruption it was insufficient. the morals concluded —and

Henry, Or at 521-22. said, is in

statute]. As we have one of these the use of words indisputably of what would have course been conven- Rights Bill Oregon’s

tional crime when was

1859, or in the course similar kinds of conventional may from time to enact.28This

crimes includes the use of words in the course of lawmakers time

soliciting, carrying out, concealing attempting, other crimes. There- statute,

fore Article section 8 not would foreclose other- form, compel

wise in valid to that made it criminal to another an

commit offense threats or other verbal means

under circumstances in which the be demand is meant to compulsion

followed and the In realistically plausible. statute,

such a probable focus is the actual or com- compelled offense,

mission of the not on protecting the from hearing speaker’s

addressee threats. ORS * * * 163.275, however, is not such a statute. It is not con- performance act,

cerned with compelled which

the statute not require does to be unlawful.

"28 referWe to ‘conventional’ imply crimes so as not to

constitutional freedom today does extend Rights, crimes known before Bill such as seditious libel,

or criminal that restrained public freedom of disclo

sure and debate.”

Robertson, 293 Or at n 433 and 28.

Thus, the Robertson court drew a distinction

between longstanding solicitation, verbal crimes like which

(it posited) the drafters of Article 8, section did not intend

affect, and other verbal crimes like seditious and criminal

libel of similar view, in its long standing, which, the drafters

of Article intended abolish. But how to tell the

difference? The fact that Robertson dubbed crimes in the first

category as “conventional” crimes is term unhelpful: The

“conventional” has no meaning obvious in this context

can distinguish one historical verbal crime from another. (and

However, passage overall the material that precedes

it) does seem to explain Specifically, distinction. seems suggest among the various historical are crimes that

“written in terms” directed at those speech, whose real focus

is on some underlying harm or offense may adop- survive the

tion of Article I, section while those that on protecting focus from the hearer do not. message

Notably, examples provides that Robertson exceptions “perjury, solicitation or verbal

valid historical — forgery and fraud crime, theft, assistance some forms of contemporary 293 Or at 412—all fall into variants,”

and their Although making category: laws those acts

the former speech, at all

criminal be “written terms” directed pres- accomplishment core

those crimes have at their underlying danger actual harm to individual

ent some beyond any supposed group, harm that the mes-

or sage society. above and might presumed cause to the hearer or to

itself notably, the distinction between “conventional”

Also remarkably historical crimes fits well with

and other point is con-

Robertson’s overall —that prohibitions at the content of cerned with that are directed causing palpable

speech, prohibitions with that focus on not groups. or

harm to individuals

But does distinction made Robertson how that oft-quoted exception that “test” for a historical

connect to opinion scope appears in of the restraint also —that exception “wholly

must confined within some historical be guaran- first American well established when the was guaran- expression and the

tees tees then or in 1859 freedom of demonstrably were not intended to well- it means however reach”? Id. We think that against speech directed a in terms or

established restraint might past, have at time in the been some in one form or another

mere fact that it continued exist sufficiently adoption not I, 8, does of Article section

after provision did not intend that the framers demonstrate is con- itself is of a sort that it,

to reach unless restraint spirit words, In other of Article section 8.

sistent with the ultimately on some focus

for those historical crimes

underlying nonspeech directed nevertheless, are but, harm speech, their existence

“in at the conflict between terms” expressed principle section is Article

the fundamental possible very great, an intention to infer be

not application them a literal

immunize from after the fact their continued existence

8, from the mere

provision’s adoption. However, the same cannot be said expression, “in directed at both crimes that are

historical crimes,

terms” and in their real focus. For we would such a more direct of the framers’ intent.

require APPLICATION TO 167.062

IV. ORS question 167.062,

We turn now to the whether ORS statute,

the live sex show violates Article provides, Constitution. The statute part:

“(3) any direct, person knowingly It is unlawful for finance,

manage, or present public live show in which the

participants engage in abuse or sexual sadomasochistic

conduct.

“(4) (3) Violation of subsection of this section is Class felony.

C ** *

“(5) As used in this section unless the context

requires otherwise:

“(a) public ‘Live show’ means a public show in which beings,

human animals, or both appear bodily spec- before

tators or customers.

“(b) ‘Public any show’means entertainment or exhibi-

tion advertised or in some other fashion held out public club,

accessible to the or member of a or whether charge admission other is levied or collected and

whether or not minors are admitted or excluded.” statute,

For purposes of “sexual conduct” is defined as

“human masturbation, intercourse, sexual touching genitals, pubic the areas or buttocks of the human male female, female,

or or breasts of the whether alone or

between members of same opposite or sex or between

humans and animals in an act of apparent sexual stimula-

tion gratification.” or 167.060(10).

ORS

We first must determine whether the statute is

directed its terms at restraining or or restricting

expression. Thе state contends it is that not directed at

expression but, instead, at conduct that the legislature is

entitled However, to the state’s that punish. briefing par-

ticular point is somewhat unclear: At points, appears some 167.062(3) mastur- public

to that ORS is directed at suggest while, at points,

bation and sexual intercourse other is at suggests that the statute directed “masturba-

briefing profit.”

tion and sexual intercourse for is There is easily latter dismissed. suggestion 167.062 that that of that suggests application ORS

nothing is to sexual or for which displays profit

statute limited (or fact, other are In the stat-

performers persons) paid.

ute it is irrelevant whether the observ- explicitly states charge.

ers live fee or other pay of a sex show admission 167.062(5)(b)

See ORS show,” for (defining ‍‌​​​​‌​​‌​​​​​​​​​​​​​​‌‌​‌​​​‌‌‌​​‌​​‌​​​​​​​​​‍“public purposes 167.062,

of ORS as an exhibition or entertainment held out public

be accessible to the “whether or not an admission collected”). charge

other is levied ORS agree

Neither can we with state that directed, and public essentially,

167.062 is at masturbation state,

sexual intercourse —conduct according has legislature can and does criminalize. The

legislature clear between sexual conduct that occurs

drawn a distinction has general public

in or in view of a to which the “place see ORS indecency 163.465

access,” (defining public in, and sexual intercourse

include sexual intercourse deviate 161.015(10)), ORS of, place”

or in view a defined “public adult

and conduct that occurs in a which place sexual are invited, “patrons but where

members are public State v. those is limited to viewing patrons,”

forewarned (1976).

Brooks, 171, 178, P2d 440 That distinction 275 Or beyond accept were we to recognition

would be blurred at 167.062 is directed “public”

state’s contention ORS The statute is not so directed.

sexual conduct. ORS 167.062

In against suggestion arguing court’s at the state also relies on this directed expression, Wade, Co. v. Wright Logging

recognition, Huffman (1993), protected that conduct is not 857 P2d 101 Or because merely under Article in so But, convey message.

actor intends the conduct issue here is of the fact that the the state loses

arguing, sight statute, defen- of a not whether constitutionality

the overall is expressive claim his conduct particular

dant can It liability. criminal any and all

therefore immunized from

may may not be true that the sexual acts that defendant and, such,

directed were conduct the most basic sense punished

could be under some other statute. But the fact

remains that prohibits the statute at issue here —ORS 167.062— they

and criminalizes those acts when occur expressive public context, i.e., Under a “live show.” circumstances,

those we avoid cannot the conclusion that solely, expres- primarily, if not

statute is directed toward the aspect of the That is,

sive conduct that it describes. the stat- restraining expression.

ute is one free then, must consider,

We whether the statute is

“wholly exception confined within some historical that was guarantees

well established when first American of free adopted guarantees

dom of were and that the demonstrably

then or in 1859 not intended reach.” were Appeals,

Robertson, 293 Or at 412. In the Court of

majority “(1) question two-part reformulated that into test:

whether there was a restriction on that was during period, and, ‘well-established5 the relevant historical (2) challenged ‘wholly so,

if whether the statute falls within' exception.” App

that historical Or Ciancanelli, 181 at 8. The

majority ultimately concluded that the statute did fall within exception,

a well-established historical based almost exclu

sively presentation examples eight on its of numerous century prohibiting public nudity

eenth and nineteenth laws sexuality. Appeals majority any The Court did at not question

time address itself that is raised the last guar

clauses framework, viz., of the Robertson whether “the [of expression] adoption

antees free [i.e., then at the Rights] demonstrably

Bill of or in 1859 not intended to

reach.” Robertson, 293 Or at 412. As be clear should from the quoted Henry

material that we have our from earlier dis question

cussion case, in this one can

ignored. argument, assume,

willWe for the sake of Appeals majority opinion set

information is sufficient to out in the Court of

support prohibi- a conclusion that a criminal nudity involving displays sexuality

tion on live shows

was well-established in the at United States the time adopted. question remains,

Article I, section was how- opinion

ever, whether the material in that or in other to demonstrate that

submission this court is sufficient

people 8, did not intend that who provision suggested prohibition. We affect that have existence, after

it the be sufficient show the continued historically

adoption I, directed in terms at 8, section of a well- of speech, crime that only

established focus under-

when it is clear that the crime’s real is on some

lying groups, speech is harm individuals or and that to way

merely accomplishing here, that harm. But where prohibitions always have been

the criminal at issue are and viewer) (or, protecting in case,

directed at the hearer this expression message,31 a more of an intent

from the direct prohibition see would suffice. We immunize historical arguments

nothing in in the or elsewhere the record state’s approaches required showing.

that even conclude, at

To ORS 167.062 is directed its terms

expression a well-established histor- and does not fall under exception 8, demon-

ical that framers of Article section

strably its intend reach. It is unconstitutional on did not ORS

face. that convictions under It follows defendant’s must reversed.

167.062

V. PETITIONER’S OTHER CONVICTIONS separate argument petitioner

Although makes no pro 167.012 for

this that his under ORS court convictions briefly

moting prostitution section we also violate Article Appeals argued in the Court of

address that issue. Defendant

that that, suggests supposed live sex of a connection between The state because diseases, prostitution, sexually exploitation of and the shows and transmitted community

women, and welfare of the threaten the health such shows However, ultimately those harms. this court that ORS 167.062 is directed at rejected repeatedly attempts to find harmful association. has such See, (city rely supposed e.g., Tidyman, at on adverse effects 306 Or cannot part of speech justify prohibition speech adverse are not on when the effects statute). operative text designed say legislature laws that are that cannot enact We do not mean to prostitution, ofsex- prohibit punish the transmission that amounts to or conduct However, agree diseases, exploitation persons. we with the classes of ual or the enacting precluded on

point are from restrictions that lawmakers in Robertson theory conse- speech solely with some adverse on is connected are, consequences speech, to some indefinable quences absent Robertson, likely. degree, at 293 Or 416. less

“[t]he same conduct resulted defendant’sconviction

under ORS 167.062also resulted his convictionunder Therefore, ORS if the 167.012. even described conduct prostitution,

meets the technical definitionof defendant is judgment acquittal still entitled to because the dancers engaged protectedexpression.” rejected Appeals majority pri- contention,

The Court of marily ground prostitution relating

on the and conduct prostitution exception”

to prohibition fall within a “historical to the broad restraining expres-

in Article laws App Ciancanelli,

sion. 181 Or 27-31. at reject impli-

We too the contention that 167.012 ORS ground

cates Article but on more basic expression. prohib-

the statute is directed at ORS 167.012 promoting controlling, prostitution owning, managing,

its — supervising prostitution enterprise regardless — presence might absence circumstances that add an

expressive targeted to the element conduct.32It is not either expressive aspects

at or at itself certain con-

duct. It does not, itself, therefore in and of an issue raise unconstitutionality

facial under Article section 8. Defen- contrary argument

dant’s is not well taken. argues, however,

Defendant that ORS 167.012 is applied as case,

unconstitutional in his his because conduct conjunction pro-

occurred in and, thus, with a “live show” was expression. essentially argument

tected That is the same rejected,

that the defendants in made, and that we Huffman Wright Logging. previously case, and In that as noted, envi- protesters engaged stop

ronmental who were in to an effort

logging operation Siskiyou in the National chained Forest permission, logging equipment

themselves, without to

belonged ing anti-logging slogans. logging company, displaying to a while and shout- logging brought company

The 32 provides, part: ORS in 167.012 “(1) if, person promoting prostitution A commits the crime of with intent promote prostitution, person knowingly:

to “(a) Owns, controls, manages, supervises place or otherwise maintains a prostitution prostitution enterprise.” or a prostitution” “any place prostitution practiced.”

“Place of is defined where is 167.002(1). “prostitution whereby enterprise” arrangement ORS A is “an two or 167.002(3). prostitutes organized prostitution more are to ORS conduct activities.” protesters attempted trespass, for and defend

action ground protected actions that their conduct was

their acknowledged expressive aspect

expression. We message ultimately “[t]he

conduct, concluded convey sought conduct, the reason

defendants their spoken accompa- conduct, and the and written words

their

nying their did not defendants’ conduct conduct transform [protected] speech.” Wright Logging, and

into Huffman Or at 458. present case,

In have that Article we concluded Oregon precludes 8, of defendant’s

section Constitution directing public

prosecution a live under ORS 167.062 for performers engage in conduct. in which certain sexual

show the extent that ORS 167.062

We have concluded public

applies shows, live sexual conduct in is aspect expression expressive or, least, the

directed at at holding, However, nor the fact

certain conduct. neither (directing prostitution) conduct acts of

that defendant’s public shows, with live transforms his

occurred association protected purposes. into for all Defen-

conduct directing profiting prosti- from a

dant’s involvement subject enterprise regulation punishment, is

tution and that is what occurred here.33Defendant’s

convictions for prostitution promoting affirmed. are Appeals affirmed in of the Court of decision part.

part to the circuit The case is remanded reversed

court. dissenting. MUNIZ, J.,

DE agree

I that Article variety protects and com-

Constitution wide 541, Stoneman, v. 323 Or P2d

munication. See State (Article (1996) protection extends to written spoken communication, also to verbal and nonverbal

and but support argues the the in the record does not find Defendant that evidence pros two-girl ings performers show acts of trial in the committed in the court that 167.007(1) promoted that those within the of ORS and defendant titution definition 167.012(1), find to merit discus of but we do not those issues acts in violation ORS respecting age challenges sufficiency the the ofthe evidence of Defendant sion. also show, that participated but we that issue the women in the conclude one of who does not discussion.

likewise merit like).

expressions photographs However, film, in and the majority, I

unlike the cannot conclude that masturbation and public prohibited in a

sexual intercourse “live show” ORS speech

167.062 is a form the that drafters sought protect I,

Constitution in Article section 8. For the respectfully below,

reasons described I dissent. carefully majority’s attempt

I commend the exam- legal philosophies

ine the antecedent and that fore- debates drafting I, the

shadowed of Article section and the abuse 8, particular. majority’s Nevertheless,

clause historical analysis convincingly

research the fails to demonstrate that

nineteenth-century legal scholars and commentators on speech protections,

which relies that believed free such as prohibited section extended to conduct

ORS 167.062. majority correctly recognizes

The that the text parts, “setting part

Article section consists oftwo one out expansive right” part “apparently qualifying and another right.” Regarding part majority text, first upon “expression opinion,” away

seizes term trims the the

qualification opinion,” emphasizes throughout “of opinion subject

rest its matter Article “expression.” majority,

8 is The however, reads the constitu- expansively

tional text more I than do. The text commands legislature respect the free of ideas—not “restraining expres-

conduct—when it forbids laws the free opinion, restricting speak,

sion of or write,

print freely subject separate whatever.” The clauses

emphasize opinion” protects “expression the constitution speak, “right print.”

as well as The write, protects thoughts

text of Article I, section 8 thus ideas and

expressed opinion print, contains noth-

ing explicitly protect public in the text would masturba-

tion and sexual intercourse. part qualifying

The second ofArticle

free-speech right responsible “every person is the abuse shall clause: right.” majority

for the abuse ofthis locates writings for the in the of William

source abuse clause prior

Blackstone, are free from who wrote that individuals responsible publishing, abuse of

restraints on but are

326

right publishing “blasphemous, treasonable, immoral, in sug-

schismatic, libels.” Blackstone seditious scandalous potentially quite

gests scope that the of the abuse clause is many majority only that, concedes that

wide. Not century jurists adhered

scholars and in the nineteenth majority understanding of clause. The

Blackstone’s the abuse encountered

insists, however, that Blackstone’s followers grounded their in from “libertarians” who beliefs

resistance eighteenth-century majority rights philosophy. The natural some schol- then claims that it is faced with a “conundrum”: Blackstonian

ars commentators followed the restrictive

approach speech, the law to free while others believed that profanity, pornography,

protected blasphemy, and other in other speech libertarians, The both and conduct.

forms of words, “classically rights construction, a natural punishment expression qua expression.”

allowing 339 no of majority can- conundrum, claims, is that it

Or at 312. figure in 8.1 out is reflected Article which view alleged conundrum one of the

submit, however, making.

majority’s own by many to be natural-

First, Blackstoneis considered a generally

rights See Albert W. thinker of the first rank. Rediscovering Blackstone, U Pa L Rev 1

Alschuler,

(1996). allegedly majority’s Thus, claim that Blackstone’s with those ofnatural-

narrow-minded views were inconsistent problematic.1

rights advocates is very in

Second, the existence of the text the abuse won 8, indicates that Blackstone

clause of Article England See, Blackstone, of e.g., on the Laws William Commentaries

(1765): man, agent, rights free with dis- of considered as a endowed “The absolute evil, choosing power good those measures cernment to know from with desirable, gen- usually up appear are summed in one to him to be most

which liberty natu- appellation, mankind. This and denominated natural eral fit, power acting liberty properly as one thinks without in a ral consists right control, being in us the law of nature: a inherent unless restraint birth, creation, gifts him at his when he endued and one of God man man, society, gives every faculty into But when he enters with the of free-will. and, price purchase; up liberty, part as the of so valuable natural his commerce, obliges receiving advantages mutual himself consideration of community thought proper laws, has which to conform those establish.” added.)

(Emphasis regulating debate, effect, the idea of abusive because

speech Story Joseph came from Blackstone and followers such as Cooley, majority acknowledges, as the Thomas alleged majority

rather than from the libertarians the claims

to have located. majority alleged

Third, the libertari- describes discussing as terms,

ans free favorable majority

but the fails to show that those commentators protections

believed, or would have of free believed

speech, such Article section would extend conduct public

such as and masturbation sexual intercourse.

Finally, perhaps importantly, and most the idea that Oregon

the Victorian-era drafters and ratifiers Consti- sought bring public

tution masturbation and sexual inter- purview free-speech pro-

course within the of constitutional my comprehend.

tection is difficult to view, In the Court of

Appeals’ majority opinion amply in this case demonstrated adopted, por-

that, at the time the Constitution was

nography, nudity, “bawdy-houses” lewd behavior, and were

accepted targets regulation enjoyed no constitutional

protection expressive on based Ciancanelli, content. State v. (2002). AppOr 1, 9-21, 181 45 P3d 451 importantly, unnecessary

Most it is embark, as majority does,

the on a search for the historical truth under-

lying free-speech the framers’ or intent, invoke the frame-

work announced Robertson. Article 8, addresses

speech, whereas ORS conduct, 167.062 addresses which is a

well-accepted dichotomy free-speech in constitutional law. O’Brien,

See United v. 367, 1673, States 391 US 88 S L Ct 20 (1968) (draft-card burning protected speech Ed 2d 672 not conduct). subject regulation ORS 167.062 does not face,

on its violate Article section 8 because the statute is any opinion conduct,

directed at not the at substance of or

any subject expression. communication beyond dispute public

It should be acts of mas- profit

turbation sexual intercourse for are not intrinsi-

cally expressive or communicative acts. See Arcara v. Cloud

Books, Inc., 697, 705, US 106 L Ed 2d S Ct 568 (1986) (upholding patrons closure of adult bookstore where engaged prostitution, sex, masturbation, oral activity carried in this case

court observed that “the sexual on absolutely protected expression”). no element of

manifests argument

Unfortunately, majority accepts defendant’s the expression protected by statute restrains public prohibits sexual conduct in it because according majority, essence, In to the masturbation

show. pro are intercourse before an audience forms

and sexual question my expression. is resolved so view, In

tected majority’s appar

simply. accept premise I cannot

ently variety can sim of conduct be labeled limitless proscenium per

ply arch or is because occurs beneath Adult Theatre I v. an audience. Paris formed before Cf. (1973) (“a

Slaton, 2628, L Ed 2d 446 67, 93 413 US S Ct performance man a woman locked in a sexual

‘live’ of a [not] high Square protected is

embrace at noon Times “they simultaneously engage Constitution,” if in a even political dialogue”).

valid park, street, in the vil- conduct

Sexual historically reg- square subject

lage has criminal been indecency public 163.465,2 statute, is

ulation. ORS prohibited ORS 167.062. The

directed at the same conduct only particular the conduct venue in which

difference legislative majority, I cannot conclude that

occurs. Unlike public stop supposed

regulation thea- sex acts must at supposed Simply part are of a “live door. because the acts

ter necessarily

public save the conduct from show” does not

regulation. not directed that ORS 167.062 is

I would hold any subject opinion of communication. or

substance of may under

Rather, is at conduct that the statute directed provides: ORS 163.465 “(1) indecency in, public if or in person the crime of while view A commits

of, performs: public place person a

“(a) intercourse; An act of sexual

“(b) intercourse; sexual or An act of deviate “(c) genitals person intent of arous- exposing the with the An act of person. person

ing or another the sexual desire of

“(2)(a) indecency is a A misdemeanor. Public Class “(b) (a) subsection, indecency public Notwithstanding paragraph is of this indecency public prior felony person conviction for or if has a

a Class C 163.355 to 163.445.” crime described ORS expressive. may

some circumstances be That the conduct expressive

some circumstances be does not mean the statute facially overbroad in violation of Article section 8. specific

Instead, under circumstances where masturbation expressive

sexual intercourse are claimed to have some con- manage, pres-

tent, “direct, an accused’s finance ‍‌​​​​‌​​‌​​​​​​​​​​​​​​‌‌​‌​​​‌‌‌​​‌​​‌​​​​​​​​​‍or protected through applied

ent” such can be challenge by jury indicating

constitutional instruction

that an accused be held accountable for the non-

expressive aspects of his or her conduct. respectfully

I therefore dissent. Notes References (1803), States reprinted Federal Government United Lerner, Constitution at 152-58. Kurland and 5 The Founders’ of Delegates, a member of the House George Hay, Virginia free- insisted that freedom of the consisted of absolute press injury dom to what one he does no pleases, “provided publish “An [George Hay], Essay other individual.” Hortensius any (1799), on the Two Liberty George Hay, Press” 1970).13 Press, 21, ed Essays Liberty (reprint early Other notable “libertarians” included Tunis Wortman, A who wrote Treatise Political Concerning (1800), and the the Press and John Enquiry Liberty of Thomson, who wrote An Enquiry Concerning Liberty (1801). Licentiousness the Press essay, Hay sharp right theory In Ms drew a distmction between the natural press theory respect of freedom of the and the Blackstonian with to that freedom. He wrote: is, kinds, only: “Nowfreedom is of two and of two kinds one mstitution; that absolute man, belongs previous freedom wMch social and the

Case Details

Case Name: State v. Ciancanelli

Court Name: Oregon Supreme Court

Date Published: Sep 29, 2005

Citation: 121 P.3d 613

Docket Number: CC 98CR2685FE; CA A108122; SC S49707

Court Abbreviation: Or.