State v. Henry

4, 1985, 20, 1984, Jаnuary Argued In Banc December and submitted resubmitted petition April July for review allowed reconsideration denied reversed 666) September (301 Or OREGON, STATE OF Respondent, HENRY, A. EARL Appellant. 31301; A26439) (31300, CA P2d Timothy Oregon, Sercombe, J. ACLU Foundation of Eugene, argued appellant. the cause for With him on the brief Harrang, Long Eugene. Swanson, were Watkinson, & Attorney Barton, Robert E. General, Assistant Salem, argued respondent. the cause for With him on the brief were Frohnmayer, Attorney Dave General, and James E. Moun- tain, Jr., Solicitor General, Salem.

YOUNG, J.

Joseph, concurring. J.,C. concurring part dissenting Hoomissen, Van J., in part. YOUNG, J. his appeals

Defendant conviction dissemination 167.087(1). indicted, material.1 He was inter obscene alia, “Bronco Buster” magazines for dissemination of entitled “3-Way Cum.” He demurred the indictment on the offense, do not ground that the facts stated constitute stipulated He because ORS 167.087 is unconstitutional. issue question. had The sole for the magazines he sold magazines whether were obscene within jury was 167.087(2). guilty only of ORS He was found definition appeal On he “3-Way with the Cum.” magazine connection the demurrer.2 overruling that the court erred argues that ORS is unconstitu argues Defendant 167.087 right his tionally “vague” and “overbroad” and violates the Oregon section expression freedom of under “Vagueness” is a catchword for number of Constitution. possible example, violations. For State 21, 27, 457 explained: P2d 491 the court Hodges, 254 Or delega “A itself to an unconstitutional statute lends and, jury, legislative power judge to the tion of be, it permitting jury what the law will offеnds to decide rule, principle, against post if ex laws.”3 not the facto I, violates Article section of the vague A statute also Constitution, in that it invites “standardless Oregon Graves, application laws.”4 State v. 299 Or unequal penal 31301), (case separate also convicted of no. defendant was Under indictment “possession involving magazine to of obscene material with intent disseminate” grounds “Crystal on was denied. Dawn.” Defendant’s demurrer constitutional entitled reversed, magazine must be because was The state concedes that that conviction However, pursuant warrant. we reverse conviction seized to invalid search opinion. for the reasons stated in this that case inconsistent, fatally argues jury that the court also verdict is Defendant evidence, independent comparison obliga- precluding that this has an court erred magazine question it as a matter of law. and that is not obscene tion to review constitution, we do not we determine that ORS 167.087 violates the state Because these issues. reach Constitution, I, provides part: Article section * * * passed.” post ex shall ever be “No law facto I, 20, provides: section passed privileges, granting class of citizens “No law shall be to citizen or immunities, which, terms, belong equally upon all shall not to the same

or citizens.” may right Application to fair notice violate the defendant’s of a (1985); 189, 197, Robertson, 700 P2d 244 293 Or (1982). argument 408, 649 P2d 569 Defendant’s here is that obscenity, 167.087(2), subjective the definitiоn of is so givepotential scope that it fails to defendants notice of its according decide, allowsthe fact finder to after the fact and to particular sensibilities, its own whether material is obscene. A claim of “overbreadth” asserts that the terms of the by purporting statute exceed constitutional boundaries protected by guarantees. reach conduct Robertson, 293 Or at 410. “Overbreadth” in this context provides I, refers to a violation of Article section which part: passed “No law shall restraining expression be the free

opinion, restricting speak, write, right print freely * * any subject whatever *.” unconstitutionally A statute will be struck down as overbroad hypotheticallyprohibit protected speech if its terms could even if, in the court, instance before the the defendant’s conduct constitutionally prohibited by narrowly could be a more supra; Robertson, drawn statute. See State v. State v. Wood App cock, 706 P2d 1012 rev den 300 Or 506 Finally, defendant contends that ORS 167.087 is flatly unconstitutional, because Article section bans legislation enactment of directed to the substance of commu nication. This contention is distinct from an overbreadth challenge, analysis because overbreadth that, assumes although particular regulation in the instance some subject might constitutional, the means reach too far. argument subject Defendant’s wholly here is that the .5 legislative purview withdrawn from guaranteed by the Due Process Clause of the Fourteenth Amendment to the United process requirement potential States Constitution. The due of fair notice to defen scope dants of a criminal statute’s and reach is embodied in the commitment of the 161.025(l)(c) “give warning criminal code set forth in ORS fair of the nature of the Robertson, supra, conduct declared to constitute an offense.” 293 Or at 409. Robertson, supra, Defendant cites I, proposition for the that Article legislature obscenity enacting proscription, section forbids the from because it is necessarily speech directed to the content of rather than an unlawful effect. The state cites Robertson for the proposition “obscenity” exception is a historical to Article I, unnecessary, instance, I, section 8. It is in this to determine whether Article section 8, flatly any obscenity proscription, bans the enactment of because we determine that and overbreadth are distinct constitu

Vagueness However, principles the constitutional challenges. tional in certainty penal laws interact expression freedom particu of “communication” is statutory prohibition that a State larly vagueness. vulnerable to constitutional attack for Blair, (1979). 519, 523, 601 P2d 766 We conclude that 287 Or 167.087(2), statutory obscenity, definition ORS I, unconstitutionally vague under Article sections 20 Constitution. part: in provides ORS 167.087 “(1) disseminating person A commits the crime of makes, exhibits, sells, knowingly if deliv- obscene material he make, exhibit, sell, provides, agrees to or offers or ers or possession in intent provide, or has his with deliver or exhibit, sell, writing, picture, provide obscene deliver or films, slides, picture, drawings or other visual motion reproduction. section, (1)

“(2) in subsection of this matter As used if: obscene “(a) patently depicts offensive man- It or describes a conduct;

ner sadomasochistic abuse or sexual “(b) contemporary average person applying state whole, work, appeals as would find the taken a standards sex; prurient interest artistic, whole, literary,

“(c) as a it lacks serious Taken political or scientific value.” (2) was “obscenity” in subsection definition Lasswell, I, 167.087(2), written, In re 20 and 21. See violates Article sections ORS as (1983); Moyle, 299 Or 705 P2d see also State v. 673 P2d 855 ground that ORS trial on the to the indictment before Defendant demurred again after “vague” to the indictment He demurred 167.087 is and “overbroad.” I,

verdict, 8. The focus of defen- arguing section that ORS 167.087 violates "appeal section under the argument 167.087 violates Article on is that ORS dant’s Robertson, supra. developed by Defendant also analysis in State v. 167.087(2) great a appeal “has led to argues definition of that the on indefinite, providing largely uncertainty,” inade- because “the standards deal of arbitrary Vague There is warning potential enforcement. quate laws allow violaters. offensiveness, contemporary jury high subjectivity on determinations risk of ** * [Tjhe community standards create standards and social value[.] largely permit community determine their standards to twelve seated the box and Despite of the dissent to the post the comments material is obscene.” ex whether facto adequately below and contrary, has been raised that the issue we conclude appeal.

397 24, 93 S Ct 413 US California, in Miller v. first enunciated to (1973),7 applied and later 2d 419 was 37 L Ed I v. in Paris Adult Theatre pornography consensual adult (1973). The L Ed 2d 446 Slaton, 49, 93 S Ct 413 US “specific prerequisites the Miller, determined that court in [of in such fair notice to a dealer provide will the Miller test] bring may activities and commercial public material that his Brennan, in Paris Adult dissenting Justice prosecution.” I, explained: Theatre I years experimentation and debate am “[A]fter

reluctantly the that none of the available forced to conclusion formulas, today, including the one announced can reduce striking a tolerable level while at the same time acceptable protections the First and balance between the hand, Amendments, on the one and on the other Fourteenth regulating the dissemination of the asserted state interest sexually Any certain oriented materials. effort to draw constitutionally acceptable boundary power on state must interest,’ concepts ‘prurient resort to such indefinite as offensiveness,’ literary ‘patent ‘serious value’ and the like. experi-

meaning concepts necessarily of these varies with ence, outlook, idiosyncrаcies person defining even and Although them. we have assumed that does exist it,’ manifestly and that we ‘know it when see we are [we] except by it reference to unable to describe advance concepts they distinguish so elusive that fail to between (Citations protected unprotected speech.” 413 US at 84. omitted.) views, Brennan’s the Miller formula embodied

Despite Justice requirement in ORS 167.087 meets the of the First amendments to the States Constitution. Fourteenth United however, is to consider the statute first under obligation, Our Robertson, supra. Constitution. State v. In discuss the state challenge defendant’s to ORS 167.087 under ing constitution, Oregon obscenity we find it useful to review cases. California, supra, requires average person applying Miller v. “contem community appeals prurient

porary interest. standards” find that work States, (1974), Hamling v. United 41 L Ed 2d 590 418 US 94 S Ct “community need not be national standards Court held that standards” community pass “Contemporary standards” ORS muster. Liles, supra, App 167.087(2)(b) community. See State 22 Or refers to statewide 139. Jackson, P2d 495

In State v. ruling reversed the trial court’s the court former state 167.150(1)8 unconstitutionally vague under was impos recognized majority first constitution.9 “[t]he definition for the accepted sibility finding popularly * * *." adopted The court then 224 Or at 355. word ‘obscene’ application definition of Model Penal Code on remand: whole, if, predomi- as a its thing

“A is obscene considered interest, i.e., or morbid prurient a shameful appeal nant is to excretion, substantially sex, goes if it nudity, interest represen- description customary limits candor beyond 224 Or at 360. tation of such matters.” also Code definition the Model Penal The court noted that by the States adopted United the standard satisfied States, n 77 S Ct 354 US v. United Court in Roth O’Connell, (1957). Judge 224 Or at 361. L Ed 2d Sloan), that agreed and by Judges Warner dissenting (joined satisfied by majority, 167.150, interpreted as former Amendments States to the United the First and Fourteenth States, Roth v. United citing 224 Or at Constitution. concluded the dissenters However, majority, unlike the supra. in was opinion Roth Supreme Court the United States constitutionality of the determining the in guide not a useful constitution, opinion the Roth because the state statute under 2) imposed 167.150(1) by (repealed § Or Laws ch Former ORS any person punishment who: misdemeanor sells, draws, prepares, publishes, “(1) photographs, Imports, designs, copies, distributes, possession lends, with away, has in his gives shows or exhibits or distribute, any sell, lend, away, or give or exhibit article publish, show intent book, paper, use, indecent obscene or or immoral or instrument of indecent matter, drawing, photograph engraving.” picture,

writing, printed was invalid for three reasons: ORS 167.150 The trial court concluded former contrary Oregon upon publications “(1) imposes prior to the restraints It 8; Constitution, I, section “(2) prohibits publication deeds of lust and bloodshed crime news and It speech; thereby invading freedom of act, unconstitutionally vague, “(3) by used ‘obscene’ as The word Jackson, State v. requirements Constitution.” measured supra, 224 Or at 342. 167.087, see legislation enactment of ORS history Oregon before the For Enterprise,” Developments Seifer, “Censorship Oregon: in Old Meyer ‍‌‌‌​​​‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​​‌‌​​‌​‌​​‌​‍New and L Rev 537 51 Or very problem “evades the which must be met in with dealing constitutionality type legislation.” of this 224 Or at 366. The dissent stated: held, ‘obscenity

“The court is not within the area of constitutionally If, protected speech press.’ as Justice points concurring dissenting opinion, Harlan out his genus ‘’’obscenity” particular “speech we could isolate as a distinct, press” recognizable which is as and classifiable poison ivy among plants,’ as difficulty other there would be no separating constitutionally obscene material from protected expressions sustaining sup- a statute which ” presses ‘obscenity.’ (Citations omitted.) 224 Or at 366. The dissent argued:

“[Granting legislature is entitled to restrict expression freedom of competing when it decides that social predominate, values only the restraint if is valid there is some can, ascertainable criteria specific which the courts [sic] cases, determine whether the applicable.” statute is 224 Or at 377.

The dissent would have held that breadth and of the Model Penal Code definition of did not meet higher standard of required definiteness of a criminal law which extends to expression. Childs, cert (1968), 447 P2d 304

den 394 US 931 involved challenge to enacted after statute, ORS 167.151. The former Jackson, supra, also included the Model Penal Code/Roth obscenity. definition of The court admitted that concept “the obscenity does not precise lend itself mathematical definition” but “reject[ed] сontention that is not Childs, capable of a sufficiently precise definition.” State v. supra, court, 252 Or at 100. The rejecting defendant’s States, relied on Roth v. vagueness claim, supra, United did not independently consider a vagueness challenge under the state constitution. Liles,

In rev den 22 App Or 537 P2d cert den 425 US 963 (1975), (1976), challenged defendant ORS 167.087 on grounds vagueness and overbreadth under the First and Fourteenth Amendments. ORS 167.087 enacted

was to conform to First and Fourteenth Amend ment standards set forth in Miller v. California, supra. There fore, question under the federal constitution was whether legislature state had succeeded in the Miller enacting formula. We determined that the statute was not unconstitu tionally it vague, guidelines because “follows the of Miller v. * * * may as to what be defined and regulated as California ” ‘obscenity.’ 22 App Or at 140.

The issue of under the federal constitution Follies, Haas, again App was raised in Film Inc. v. 22 Or 539 P2d rev den appeal dismissed US 913 (1976). argument summarily rejected The was on the basis Liles, supra. The last time we addressed the constitu tionality Tidyman, 167.087 was in v. 30 App ORS State Or case, 568 P2d rev den In that Tanzer Judge wrote:

“Finally, Oregon’sobscenity defendant contends that stat ute, 167.087, unconstitutionally vague ORS and overbroad. writer, joined by colleagues, This his would concur if controlling law were not settled otherwise. We therefore Follies, contrary. prior Film Inc. adhere to our decision to * * *." App v. Haas at 554. Oregon Supreme consistently Court has held particular type expression “obscenity” may that a labeled However, prohibited section 8. as evidenced under Jackson, in State supra, dissent v. the members of the always court have not that a agreed particular legislative judicial capable separating definition was “obscene” expression expression. from The court has not protected considered the current definition of based on Miller 167.087(2). v. and codified in See State California, supra, Liles, Follies, Haas, and State v. supra; supra; Film Inc. defendant’s Tidyman, supra. vagueness challenge We turn to only and discuss federal cases under the Constitution analysis. to aid in that California, supra,

In Miller v. the United States oft-repeated its view premises opinion its States, “obscenity” “speech,” is not Roth v. United 485, and, therefore, entitled to protection 354 US at is not to the United under the First and Fourteenth Amendments adopting Oregon legislature, States Constitution. 167.087(2), apparently Miller definition in ORS made the respect I, same assumption with to Article section of the Oregon parties competing constitution. The offer contentions assumption, raising question in their briefs as to that right write, print freely whether or “speak, subject right obscenity. whatever” includes the to disseminate question required

The is one we are not to answer in because, this case even assuming some abstraction called “obscenity” protected is not under Article section speech satisfactorily the statute we consider here does not a line draw such between material and other forms of communication.10 167.087(1) proscribes “disseminating ORS obscene material.” “disseminating” words and “material” particularly specific described in terms of objects. acts and The word 167.087(2). “obscene” defined by obscene, To be material or depict must describe “sadomasochistic abuse or 167.087(2)(a). sexual conduct.” ORS The claim in this case is magazine question depicts “sexual conduct.” ORS 167.060(10) provides:

“ masturbation, ‘Sexual conduct’ means human sexual intercourse, any touching genitals, pubic areas or female, buttocks of the human male or or the breasts of the female, whether alone or between members of the same or opposite animals sex or between humans an act of apparent sexual gratification.” stimulation or House, 953, 957, 676 In State v. 66 Or App (1984), P2d 892 aff’d 299 Or 698 P2d 951 we construed the “in language apparent act of sexual gratification” stimulation or mean “any touching of the areas described that a reasonable person perceive would sexually as stimulating gratifying.” interpreted, So we determined that the definition of “sexual points length, accepted the Miller As the dissent out at other state courts have standards, engaging analysis often without a careful of them. Some of those cases See, e.g., dissents, persuasive as does Miller itself. Bloom v. have more or less Court, Municipal 71, 86, 127 Rptr 317, 545 (1976) (Tobriner, J., 16 Cal 3d Cal P2d 229 City Jacobsky, (Me dissenting); 1985) (Scolnik, J., Portland v. 496 A2d concurring dissenting). arguments This is one of those cases which we find the helpful determining meaning of dissenters and of commentators more majority opinions jurisdictions. See State v. constitution than are from other Soriano, opinion adopted, 642, 645, 684 App P2d 298 Or 693 P2d 26 chall to withstand a sufficiently clear

conduct” enge.11 however, separating depic is not in difficulty, conduct. depictions conduct from of nonsexual

tions of sexual sexual depictions in “obscene” of difficulty separating is Because a depictions that are not “obscene.”12 conduct from expression, sexual conduct is description or of depiction precision care and particular must be drawn with proscription Blair, only supra. 8. State v. satisfy to section jury distinguish a and have to obscene judge tool which is the protected expression from sexual expression sexual 167.087(2). in Miller test embodied ORS three-part offensive.” ORS First, “patently the material must be 167.087(2)(a). “Patent” means “evident” or “obvious.” Web (1976). Dictionary, 1654 International ster’s Third New nauseating or disagreeable or “Offensive” “describes what * * *.” and sensibilities outrage of to taste painful because Dictionary, 1566 New International Webster’s Third definitions, must matter, jury a threshold under those As obviously to be out of sexual conduct depiction find the sensibilities. average person’s to the rageous n average Second, the must determine that jury “[t]he find the contemporary state standards would person applying whole, prurient to the interest work, appeals taken as a 167.087(2)(b). or Prurient means a “shameful sex.” ORS Jaсkson, 224 Or at 363. supra, in sex. State v. morbid” interest standards of apply contemporary to state required Jurors are prurience,based determining and to avoid average person of sexual propriety personal opinions their own on knowledge his own is entitled to draw on expression. “juror A community person average the views of the of comes,” Hamling he United from which vicinage [or state] House, 167.062, proscribed “sexual In State v. we found that ORS which show,” overbroad, proscription public included such because the in live to be conduct a do not have the same on a Hot Tin Roof.” We “Romeo and Juliet” and “Cat works as 167.087(2) (c) here, invalidity with “liter excludes works because ORS constitutional ary” or “artistic” value. degrees may possible distinguish put between it: “It As one commentator sex, explicit among heroic to explicitness discussions of sex it is of but discussions Kalven, Metaphysics the Law attempt distinguish good “The from the bad.” Obscenity,” Rev 1960 S Ct 3. States, S 94 Ct 41 L Ed 2d 590 base may prurience the determination juror’s sense own “common and innate sensibilities.” Tidyman, supra, 30 Or If App jury 551. determines that the material depicts sexual conduct in manner it patently appeals prurient offensive to a interest sex, 167.087(2) (c) then under ORS the jury must determine artistic, political whether material has literary, “serious scientific value.” a particular

Whether work is obscene within the three-part definition of ORS a question 167.087 is of fact. Miller v. California, supra; Tidyman, making supra. determinatiоn, is, essence, factual the jury making protected distinction unprotected between expression. Kalven, sexual See Metaphysics “The of the Law Obscenity,” S Ct Rev 20-21. When the material depicts “sexual conduct,” the critical distinction between protected and expression criminal must be made on the basis offensiveness, appeal prurient interest and lack of serious literary, artistic, political pf and scientific value. Each those necessarily Kassner, determinations is subjective. See “Obscenity Perversion,” Leads to (1975); 20 NYLF 551 Hardy, “Miller v. and Adult Paris Theatre I v. California Obscenity Reformulated,” Slaton: The Doctrine 6 Colum H R Comment, (1974); L Rev 219 “Community Standards, Class Actions, Obscenity and California,” Under Miller v. 88 Harv L Comment, Rev (1975); Techniques “New Prosecutorial Vagueness: Argument Continued Judicial An for Aban as a doning Obscenity Legal Concept,” 21 L UCLA Rev 181 (1973); Comment, “In Quest Obscenity of a ‘Decent Society’: Burger Court,” (1973). and the 49 Wash L Rev 89 Court, Supreme by requiring

The United States that prurient appeal be determined to “contemporary reference community standards,” vary intended those standards to sophistication viewing to the location and the according “It constitutionally audience. is neither realistic nor sound to read the First requiring people Amendment as Mississippi accept public depiction Maine or of conduct found Vegas, tolerable in Las City.” California, or New York Miller v. (Footnote omitted.) statute, supra, 413 US at 32. The Oregon standards, referring provides tо state contemporary geographically appeals uniform standard. Material to the vary, interest at least

“average person’s” prurient would Portland, Baker Klamath Falls theoretically, from to However, “contemporary” state Eugene. the reference anticipates example, over time. For standards fluctuations sexually published oriented materials and considered type may now, may a different acceptable in 1970’s what be unacceptable determined and obscene. atmosphere, social be only Miller formula was intended restrict The v. California, supra, “hard Miller pornography. core” “obscenity,” as limited to hard core determining at 27. In may constitutionally proscribed, be the United pornography, assumptions. vital The first Supreme States Court made two “self See pornography identifying.” is that hard core Com ment; Obscenity and Quest Society’: a ‘Decent “In Court,” words, Rev 107. In Burger 49 Wash L other supra, they to conclude that “know it jurors are entitled judges States, 378 US see it.” See Jacobellis United [they] when (1964) (Stewart, J., Ct 12 L Ed 2d 793 197, 84 S uncertainty assumption is that some concurring). second particular whether potential defendants as to part obscene is constitu- sexually legally materials explicit tionally acceptable. very a line there will be cases

“Whenever the law draws opposite precise course of the near each other on sides. The uncertain, may line but cаn come near it without no one so, thinks, he if if he so it knowing that does he does him take risk.” familiar to the criminal law to make States, 124; quoting, Hamling v. United 418 US at Wurzbach, 280 US 50 S Ct United States L Ed 2d Hamling principle Oregon has its principles prohibit- the constitutional

parallel. discussing laws, has noted: ing penal such need not define an offense with “A criminal statute precision person every can in advance that case determine reach.” specific will be within the statute’s conduct Graves, 195. State 299 Or at within the strict limitations However, Graves did not arise Rather, challenged as I, the statute Article section 8. use enhances the tool,” the of which “burglar Graves defined penalty 164.225(1)(a). for burglary. ORS To withstand con- I, scrutiny stitutional under Article section the Miller obscenity, 167.087(2), definition of as enacted in to required simply separate do more than one degree (as Graves) criminal conduct from separate another or to legislature prohibit conduct chooses to from conduct not; which it separate prohibited expression does it must from expression that prohibited. cannot be 167.087(2)

Because ORS must be used judges, juries potential defendants to the criminality assess particular conduct, we hold that its definitions are not suffi- ciently precise particular determine whether sexually explicit material legally obscene. It is not acceptable, as a matter law, of state constitutional precise course of dividing the line expression obscene protected from exprеssion be uncertain person and that a who chooses to sexually explicit disseminate materials must bear the risk of uncertainty. The constitutional right to communicate freely on “any subject guaranteed by I, whatever” section requires more than provides by the statute way of guidance. A person sexually who trades materials explicit cannot discern that his wares are legally obscene under the statute; a trial judge is no left with standard legal apply; jurors required to determine what is or is not on obscene personal basis their contemporary ideas of state stan- 167.087(2) dards. ORS is unconstitutional. The demurrer should have been sustained. reversed;

In case no. conviction in case no. 31301, conviction reversed.

JOSEPH, J.,C. concurring.

I in Judge Young’s opinion. concur majority How- ever, if it, Supreme Court had not I precluded would hold the statute unconstitutional under Article sec- Oregon Constitution, tion provides: which passed restraining expression law “No shall be the free write, opinion, restricting print right speak, freely whatever; any subject every person responsible but shall be right. for the abuse this —” words nothing

Those are so clear that there is about Court, However, them to be Oregon Supreme construed. Robertson, (1982); In re 293 Or 649 P2d 569 Lasswell, Moyle, and (1983); P2d 855 296 Or read P2d 740 has refused to the words Instead, plainly say. the court has made the they for what point inquiry of exception” of an “historical existence first at which is directed determining whether statute in writing complete or is valid. The most speеch content of appears addition to the constitution judicial of that statement Lasswell, In re at 124: Or explained guarantee have this “Recent decisions that laws, prohibitory least forecloses the enactment sanctions, by outright prohibitions punitive form of backed any speech writing subject or ‘on that terms forbids prohibition be that the unless it can shown whatever,’ falls historically original or version estab- within an modern exception lished be ended that was. not meant principles purposes for which the constitu- liberating and adopted. See State v. expression guarantees tional of free were ** Robertson/Young (Emphasis supplied.) I, adopted, was At time that Article section provided: a territorial there was person import, print, publish, sell or dis- any “If shall ballad, printed paper any any pamphlet, or book or tribute prints, language or obscene thing containing obscene other descriptions, manifestly tending to pictures, figures, or other youth, or shall introduce into corruption of the morals of education, buy, procure, place of shall any family, or or school book, receive, any pamphlet, possession, such have his or ballad, purpose printed paper thing, either for the or other circulation, loan, sale, intent intro- or or with exhibition school, education, family, place the same into duce shall, conviction, by imprisonment in the punished he months, six, county jail not nor lеss than three more than hundred, fifty three nor less than a fine not more than XI, Territory Oregon, Ch 10§ of the dollars.” Statutes Lasswell, quoted from language of the In the face Constitution statute, is not free to read this court I, out to exist Instead, Article section turns as it is written. any “liberating princi- straitjacket that makes an historical .in implement. let alone very perceive, difficult ple” Gillette, Buttler, J., J., pro tempore, join in this opinion. HOOMISSEN, J., concurring part; dis-

VAN senting in part. passes concedes ‍‌‌‌​​​‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​​‌‌​​‌​‌​​‌​‍that 167.087 majority ORS

muster Court’s current view under United States of the Amendment.1 First major-

I dissent respectfully portion from ity’s opinion that concludes 167.087 unconstitu- tionally vague under Article sections 20 Oregon Constitution.

Assuming raised,2 that the vagueness issue has been it, question, the I is as see whether the standard established California, 15, 2607, 419, Miller v. S 37 L 413 US 93 Ct Ed 2d den, reh (1973), incorpo- 414 US 881 and progeny, its which is 167.087, rated in the anti-vagueness ORS satisfies require- ment of Oregon Moyle, the Constitution. See State v. Or 299 691, 707, (1985); Graves, 189, 195, 705 P2d 740 v. 299 State Or Robertson, (1985); 2; 700 P2d 244 State v. n v. supra State Blair, 519, (1979); Hodges, 287 Or 601 P2d 766 State v. 254 Or 21, 27, (1969). P2d 457 491 I conclude that it does. comprehend

I fail to a majority how statute that the Liles, 1182, 132, 140, 537 (1975), App 1 In 22 State v. Or P2d rev den cert den 425 (1976), passes we 963 held that ORS 167.087 muster under the First Amendment. Follies, Haas, App 669, (1975), appeal See also Film Inc. v. 22 Or P2d rev den (1976). dismissed 426 US 913 trial, only challenged being 2 At defendant as under 167.087 unconstitutional Constitution, Oregon I, specifically challenge Article section 8. not He did the statute 265-68, 666 vagueness Kennedy, 260, (1983) grounds. on See v. State 295 Or P2d 1316 (issues analyzed, Sterling argued); of state constitutional law should v. be briefed аnd 611, Cupp, 1, (1981) (specific 290 Or 613 n P2d 625 123 bases of constitutional claims (sic) analyzed). should be raised Defendant’s brief this court states: “The bases Oregon for the was demurrers that ORS 167.087 is unconstitutional under Constitu tion, I, argument Art. Neither § 8.” defendant’s brief nor his oral this court indicate separately challenges ground vagueness. that he the statute of that No doubt explains why argument the state’s brief its do not oral even address the issue. Robertson, 414, case, 402, In the of this I 649 context understand State 293 Or I, P2d 569 to hold that we must first address the Article section issue before proceeding vagueness challenge. majority opinion to consider a here turns sequence analysis Robertson’s of on its head. flatly prohibited against legislature legislating On the issue whether the from “obscenity,” J., 405; concurring opinion Joseph, AppOr also see C. 78 at see Lasswell, (1983); Spencer, In re 296 Or 673 P2d State v. 289 855 Or 230-231, Tusek, 997, 1000 2, (1980); App 611 P2d 1147 52 Or n P2d 892 (1981). vague concede is not under federal constitu defendant analysis of light tional can be when examined Oregon of As Article sections 20 and Constitution.3 Supreme recently observed: Maine “Indeed, it see that so is difficult to how ordinance precisely proscribable Miller follows the definition City unconstitutionally vague.” Port be could (Me 1985). Jacobsky, land A2d By principled departure in a manner its radical explaining authority, majority fails to utterly from federal show respect opinions “high for the [United States] Court,” Oregon Supreme repeatedly Court has stated See, Kennedy, 2,n 295 Or e.g., supra should be shown. Thornton, 508, 512, P2d 267; City Portland v. objective principled is a 972, cert den 323 US 770 state interpretation independent provisions of the our constitution, no There is jurisprudence. not result-oriented history priori logic basis in a or in text I provisions of Article presume Constitution than power restrictively more invariably governmental curtail of the United States Constitution. Unless parallel provisions divergence from federal explanation sharp principled handy grab I is more authority given, little than bevy may exploited in order bag filled with a clauses Supreme of the United State evade disfavored decisions Collins, Away on State Court. See Reliance Constitutions — Hastings QL Reactionary Approach, 9 Const a from States supra, In Miller v. the United California, statute that meets Supreme Court held that state a in in fair dealer provide standard that case “will notice may activities that his and commercial public such materials US at 27. The Miller standard bring prosecution.” 413 requires: (a) must guidelines

“The for the trier of fact be: basic dissenting opinions in Paris Adult Theatres 413 US of Justice Brennan 3 The (1973), 466, den reh 881 Justice Tobriner L Ed 2d 414 US 93 S Ct 37 Court, (1976), Municipal Rptr 229 P2d Bloom v. 127 Cal 545 Cal 3d Jackson, the dicta of the losers Judge wars in earlier are O’Connell They simply fought irrelevant here. different battlefields. on contemporary average person, applying ‘the commu- whether work, whole, nity find that taken as a standards’ would * * *; (b) prurient appeals to the interest whether the work describes, depicts patently way, or in а offensive sexual law; specifically applicable conduct defined state (c) work, whole, literary, whether the taken as a lacks serious artistic, (Citations political, or value.” at 24. scientific 413 US omitted). Miller standard. 167.087(2) It incorporates provides: 167.087(1)],

“As if: used matter is obscene [ORS “(a) depicts patently It or describes offensive man- conduct; ner sadomasochistic or sexual abuse “(b) contemporary average person applying state work, whole, appeals would standards find the taken as a sex; prurient interest “(c) whole, literary, artistic, Taken as a it lacks serious political or scientific value.”

ORS 167.060 defines sadomasochistic abuse and sexual con- duct: “(9) flagellation ‘Sadomasochistic abuse’ means or tor- upon person or

ture who is in undergarments nude or clad revealing costume, inor or being bizarre or the condition of fettered, physically bound or part otherwise restrained so of one clothed. “(10) masturbation, ‘Sexual conduct’ means human sex- intercourse, any touching pubic

ual or genitals, areas or female, buttocks of the male human or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent gratification.” sexual stimulation State Tidyman, rev App 30 Or 568 P2d den 280 Or 683 (1977), defendant challenged ORS 167.087 under both the state and federal constitutions. We as In rejected defеndant’s constitutional claims. Childs, cert den 91, 100, 447 P2d (1968), Court stated:

“Admittedly, concept not lend does itself to not, precise, however, mathematical definition. It is alone among imprecise having implications. terms It hardly precise present is less such and than terms as ‘clear cause,’ ‘probable danger,’ process,’ ‘due ‘involuntariness’ and 410 equally acceptable use and

all of which are constitutional States, United Roth [v. incapable 354 of exact definition. 476, 1304, 1498, (1957)] 1 L Ed United US 77 S Ct 2d said: States Court

“ ‘Many recognized that terms of decisions have these however, Court, precise. This are not statutes consistently precision held that lack of is not itself has * * *’ process. US requirement to the of due offensive at 491].”4 Graves, 195, the Supreme

In State 299 Or at supra, v. explained:

“A need not define an offense with such criminal statute precision person every in advance that a case can determine specific will be reach. a conduct within statute’s However, degree certainty required is reasonable 21.” sections 20 and pro is degree certainty” I that a “reasonable would hold 167.087(2). found in ORS The statute vided the definitions persons inform of ordi sufficiently explicit adequately is nary prohibited conduct.5 It does not intelligence punish delegate judge jury to a uncontrolled discretion vague. It is not punishment. withhold why it does not majority explain does attempt judicial interpretation that would give statute Robertson, supra, v. it definiteness. See State give required Jackson, 411; 356 P2d Or (1960). stat majority judiсially of states save Emerson, Haber, Dorsen, and Political And Civil utes. See I States, (4th 1976). ed Rights 565-66 In The United helpful from opinions jurisdictions other Judicial to the extent Constitution interpreting Childs, 167.151, or, supra, 4 State v. is not in form deals with which former 167.087, Further, totally, the relevant here. substance same as ORS States, v. United Childs Roth-Memoirs test derived Roth from involved the so-called Massachusetts, 975, 16 (1966). supra, v. L Ed 2d 1 Memoirs 383 US 86 S Ct California, supra, progeny. Miller v. its The source for ORS 167.087 is requires vagueness grounds challenge standard of 5 A a strict However, obscenity protected analysis protected speech implicated. is not is when J., supra. 2, supra; concurring opinion Joseph, See speech. Therefore a strict C. n Theatres, Young See v. American Mini analysis required is not here. standard Graves, (1976); 195; 50, 70, 96 State L 299 Or at Ct Ed 2d 310 S Manzo, State Hawaii 573 P2d 957-58 background applica- their reasoning persuasive their opinions attempted judicial I to find Oregon. ble to have considered, under state that have jurisdictions from other incor- constitutions, obscenity statutes the issue that, My research indicates porating the Miller standard. have dealt with the fewer than half the states although constitution, no after Miller under their state vagueness issue majority the reaches here. state has reached the conclusion sections 20 and portions The relevant Constitution, are taken verbatim from the 1851 Oregon History Carey, Indiana Constitution. A Constitu- (1926). liberally on the tion 463-469 Indiana in turn drew Ohio, Pennsylva Kentucky, constitutions of Tennessee and Kessler, 359, 363, 614 P2d 94 nia. State v. prohibit the distribution of obscene

Indiana statutes which (Ind material with the definition together Code 35-49-2-1 § 35-49-3-1) adopt, and Ind seq Ind Code 35-49-1-1 et Code § § verbatim, the Miller standard. I have found no Indiana almost specifically case that discusses Indiana’s statutes However, under its state constitution. three recent cases have grounds. been decided on federal State, _ Ind App _,

In Porter v. 440 NE2d 692-93 the court stated:

“Appellant first assails the Indiana statute as activity adequately type its for failure to define subject liability. Appellant which will a seller to criminal specifically alleges that terms in the definitional certain type section of the statute are unclear as to the of conduct purview the statute. intended to be included within delineated, prohibited activity clearly Since the cannot be appellant argues being the statute must fail as uncon- stitutionally vague. agree. We cannot

“* * * California, [supra], Court Miller of the United States laid out the standards which works depict judged. conduct are to be which or describe sexual noted “ (a) guidelines trier fact must be: basic ‘[t]he person, applying contemporary average “the com- whether work, munity taken as a standards” would find (b) whole, interest; appeals prurient to the whether describes, way, patently depicts or offensive work applicable specifically state sexual conduct defined whole, law; (c) work, lacks whether the taken as a artistic, literary, political, or scientific value.’ serious (citations omitted). substantially 24], This is 413 US at “[Id language adopted by legislature to determine whether our performance Indiana Code Section a matter or is obscene. 35-30-10.1-l(c) 1981)] [(Supp states that

“ ‘(c) (1) if: performance A is “obscene” matter or community person, applying contemporary stan- average dards, dominant theme of the matter of finds that the [sic] whole, appeals prurient performance, taken as a to the sex; (2) depicts performance the matter or interest conduct; describes, patently way, offensive sexual (3) whole, performance, the matter of taken as a lacks artistic, literary, political, or scientific value.’ serious (a), (d) (e) (b), define certain terms used “Subsections legislature’s is to be considered within our definition what by supplemented other sections of the obscene. This is further such terms as deviate sexual conduct. Code which define hy legislature unequivocally clear and used definitions ordinary intelligence person as to what would not a confuse of prohibited by the statute. The statute is not type conduct is of unconstitutionally vague and the trial court did not thereby appellant’s (Emphasis denying err in motion to dismiss.” omitted.) supplied, and citations footnote 250, State, 224, 394 NE2d App In Ford v. 182 Ind 253-54 the court stated: “Next, constitutionality of the Indi- defendant assails the 1971,35-30-10.1-1, statute, on First Amend- IC

ana premised on grounds. prong of this attack is ment The first expression con- assumption that all sexual the erroneous obscenity is stitutionally protected. established that It is well constitutionally protected speech or not within the area of States, California, [supra]; Miller v. press. Roth v. United Slaton, 49, I [supra]; Paris Adult Theatre v. US 93 S Ct [413 Kaplan v. 446, reh den 2628, (1973)]; L US 881 37 Ed 2d den 492, reh 115, 93 2680, 37 California, L 2d S Ct Ed US [413 (1973)]. 414 US 883 vague and “Secondly, insists that the statute is defendant provide adequate of what overly notice broad since it does upshot this assertion is that prohibited. The acts are sufficiently precise because the is not language of the statute every people in thing to all mean the same words do not instance. persons it when “A criminal statue inform fails must be order ordinary intelligence their conduct what State, Platt v. a guilty them to be violation [168 thereof.

for (1976)]. The for determin 55, criteria App NE2d 219 Ind subject regula to state material ing what constitutes obscene California, supra, Miller v. where it was was tion delineated by ‘contempo appraisal of the matter held that nature adequate rary community basis estab standards’ was lishing obscenity.

“ (a) must guidelines for the trier of fact be: ‘The basic person, contemporary average applying com- whether “the work, munity find that taken as a standards” would Wisconsin, interest, Kois whole, prurient appeals to 2245, 33 (1972)], quoting S Ct L Ed 2d 312 US [408 States, (b) [supra, Roth v. 489]; whether United 354 US at describes, way, patently depicts or offensive the work specifically applicable state sexual defined conduct work, whole, law; (c) lacks whether the taken as literary, artistic, politiсal, or scientific value. We serious “utterly adopt do not as a constitutional standard the test Memoirs v. Mas redeeming social value” without sachusetts, L US 86 S 2d Ct Ed [383 (1966)]; concept has never commanded adherence ** * If three at one time. a state law of more than Justices limited, as regulates obscene material is thus written construed, applicable Amendment First values through Amendment are ade States Fourteenth power quately appellate protected the ultimate courts independent to conduct an review of constitutional claims Wisconsin, supra, See Kois v. necessary. when US at [408 Massachusetts, Memoirs 232]; US at [383 J., Ohio, (Harlan, dissenting); Jacobellis v. 459-60]; [378 New (1974)]; 12 L Ed US 84 S Ct 2d 793 Sullivan, 254, 284-85, 84 York Co. v. Times S Ct States, Roth v. United 710, 11 (1964)]; L 2d 686 Ed (Harlan, J., concurring and dissent ‍‌‌‌​​​‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​​‌‌​​‌​‌​​‌​‍ US at 497-98] [354 omitted) (Footnote ing.)’ US at [413 24-25]. prescribed

“The statute the form Indiana is written Indeed, holding Miller. mirrors the language of the statute infringe- in that Defendant has not demonstrated case. guarantees. upon any First ment Amdendment assault, void-for-vagueness Ford corollary “As a to his require- the constitutional claims that violates process. ments of due State, supra, United was Roth v.

“In 414 arguement.

confronted with a similar There the statutes punished sale, under attack advertising, mailing obscene material.

“ ‘Many recognized decisions have that these terms of precise. Court, however, statutes are not This consistently has precision held that lack of is not itself requirements process. offensive to the of due “. . . [T]he require impossible standards”; Constitution does not all required that is language “conveys sufficiently is that the warning proscribed definite as to the conduct when meas- practices....” ured understanding common United Petrillo, 1, 7-8, 1538, States US 67 S L Ct 91 Ed [332 words, (1947)]. 1877 applied according These proper to the judging obscenity, already discussed, standard for give adequate warning proscribed of the conduct and mark “... sufficiently boundaries forjudges juries fairly distinct to administer may the law . . .. marginal That there cases in which is is difficult to determine the side of the particular line on which a fact situation falls is no suffici- ent language reason to hold the ambiguous too to define a Id., criminal offense . . ..” US at See also United [332 7]. Harriss, 612, 15, States v. 808, 98 US n 624 74 S Ct L [347 (1954)]; Boyce States, Ed 989 Motor Lines v. United [342 337, 340, 329, US 72 S Ct L (1952)]; 96 Ed 367 United Ragen, 513, 523-24, 62 374, States v. US S Ct L86 Ed [314 (1942)]; Wurzbach, 396, 50 United States v. US S [280 167, L (1930)]; Hygrade Ct Ed 508 Provision Co. v. Sherman, US L (1925)]; S Ct 69 Ed 402 [266 Washington, 273, 35 Fox v. State US S L Ct [236 States, (1915)]; Ed 573 Nash v. United US 33 S [229 Ct L (1913)]. 57 Ed 1232 “ then, summary, statutes, ‘In we hold that these applied according proper to the judging standard for obscenity, safeguards do not against offend material, upon protected convictions based give fail acting adequate men in prohibited.’ notice what is [354 omitted.) (Emphasis supplied, US at footnotes 491-92]. Hamling States, “See also: [supra]; v. United United States v. Reidel L S Ct Ed 813 (1971)]. legal

“The definition of in the Indiana statute change does not sufficiently with each indictment. It is a term specific provide adequate proscribed notice conduct.” (Emphasis supplied.) NE2d App Ind State,

In Riley (1979), stated: the court 368-69 is the statute first consider is whether “The issue we ** *

unconstitutionally vague. <<* * * * ^[*] guidelines statute follows the

“We note that the Indiana Suprеme in Miller v. Court by the United States set out guidelines set California, [supra], almost word word. scope regulation of obscene material permissible state the of Using the weighed against First Amendment considerations. 35-30-10.1-l(c), specifically IC guidelines, as found 35-30-10.1-l(d), conduct, found in IC such as defined sexual stated, these are satisfied ‘[w]e provide to dealer specific prerequisites will fair notice may public and commercial activites such materials that his Miller, Riley prosecution.’ Yet bring [413 27]. Miller language found in the statute and contends problem is not and that ‘enhances’ sufficiently legislature to intended to certain show what the prohibit. specificity in Indiana is that a statute

“The standard of vague unconstitutionally individuals will not be found if ordinary comprehend adequately to intelligence would it Sumpter v. proscribed. to be them conduct inform State, cert den 425 US 952 Ind 306 NE2d 95 [261 State, (1976)]; App Ind 360 NE2d Hunter (1977)]. den cert 434 US 906 States, [supra]: it has in Roth v. United

“And been stated “ ‘Many recognized that these terms decisions have Court, however, precise. statutes are not This consistently precision not has held that lack is itself of due * * “* process. to requirements [T]he offensive Constitution standards”; all require impossible does not “conveys language sufficiently required is that the warning proscribed conduct when meas- as to the definite * * * understanding practices ured common [t]hat may marginal which it is there cases in difficult particular which a determine the side the line on fact language reason to hold situation no falls sufficient ***.”’ ambiguous a criminal too offense define citations omitted]. [Footnotes sufficiently clear as “We determine that the statutes are ” supplied.) proscribed. (Emphasis give conduct notice My every research indicates that jurisdiction that has specifically its post-Miller obscenity reviewed statute under its that, state constitution has concluded if its statute meets standard, Miller it is under the state constitu- tion. Court, Bloom v. Municipal supra n California

Supreme Court rejected the defendant’s claim that obscenity incorporated statute which the Miller standard was unconstitutionally vague under the California constitution. The court stated: patently

“Section 311 has been and is to be limited to representations descriptions specific offensive of the ‘hard * * * given examples core’ sexual conduct in as Miller . [Supra, construed, US 413 As so the statute is not 25]. unconstitutionally vague. “Assuming arguendo authoritatively 311 that section as requires, plaintiff ‘specific’

construed is as Miller I as con- is, nevertheless, vague deny him tends the statute process so as to due argues judging ‘prurient

of law. Plaintiff a work’s subjective process interest’ or ‘social value’ is so a that its inherently unpredictable, denying outcome potential a prohibited. Rejecting violator fair notice of what this argument, Supreme repeatedly the United States Court has upheld obscenity legislation against attacks mounted under process (Hamling the due clause federal Constitution. v. States, United US 94 L S Ct 41 Ed 2d 590 [418 (1974)]; California, States, [supra]; Miller v. Roth v. United [suрra]). process The due clause Constitu- California ” impose regard. tion does not in stricter standard this 545 (Emphasis supplied.) P2d at 235. Inc., People Horizons, v. New 200 Colo Tabron, (1980), People

P2d 106 P2d Colo (1976), Supreme the Colorado Court stuck down obscenity statutes, state’s on federal constitutional grounds, However, People for failure to meet the Miller standard. in ex Tooley Thirty-Five rel Colfax, Inc., _Colo_, v. Seven East Supreme upheld, 697 P2d 348 the Colorado Court constitutions, under both the state and federal grounds, incorporated that state’s statutes which the Miller standard. Manzo, Supreme supra

In State v. n the Hawaii rejected claim that an defendant’s was unconstitu- the Miller standard incorporated which The court Hawaii Constitution. tionally under stated: for the view arguments have been advanced

“Eloquent obligated to exercise independent judgment we that the Con- process requirements of the Hawaii applying the due poorly the deci- requires reasoned us to discard as stitution question, Supreme this States Court on sions the United acceptable is not constitutionally notice hold that by given of definition con- affected individuals the sort 712-1210(5). Aparticularly presentation of forceful tained § Tobriner’s dissent arguments is contained Justice these Court, there, Municipal [supra]. As is said ‘a Bloom v. person violating society imprison does not civilized defined.’ prohibitions that cannot even be on conduct [545 in Justice Stevens’ joinder of four Justices P2d аt 239]. 2085, 52 Illinois, S L Ed dissent in Ward Ct depth disagreement on the (1977)], 2d 738 evidences sup- reasoning mechanical Court. somewhat is, paragraph port suggested preceding in the of the conclusion more, challenge. response to this We an insufficient without conclusion, in the accept and to concur are led to unsatisfactory problem concededly treatment of this courts, majority great of the state Supreme Court and to us to control- by which seem be additional considerations ling. aspects the other of the problems of fair notice and

“The inescapably of vagueness are linked to the status doctrine exception protected speech. obscenity as an from Justice obscenity contends that ‘no definition of calculated Tobriner consenting can be flow to adults to curtail the of material scope vagueness permissible doc- framed within the say of But this is to that the exclusion trine.’ P2d 242]. [545 fallacy, speech what is obscenity protected from is a because Whether such an exclusion should unprotected is undefinable. difficulty defining strenuously debated. The of exist has been in unprotected weighty that debate. is is a consideration what exclusion, in been resolved favor of the debate has Once however, given has to a substantial interest recognition been material, an society regulating of obscene in the flow of in fundamental interests importance that interest of such it. speech subordinated to of have been freedom concept. concededly relative When a “Vagueness notably stringent less implicated, a Amendment is not First exemplified commonly accepted, as specificity is degree of 418 upheld Grayned City Rockford,

in the noise ordinance in of 2294, 33 (1972)]. US S L greater Ct Ed 2d [408 specificity pre- demanded when First Amendment values are give sent overriding importance cannot those values such as to destroy competing society imple- values which is entitled to obscenity ment. The protection given exclusion of from the to speech implemented by regula- establishes the social value obscenity tions of against on a level which secures it erosion by vagueness designed protect a doctrine competing to States, speech. interest in freedom of Thus in Roth v. United [supra] precedent when the Court looked for a which defined specificity applied the standard of to Petrillo, [supra], it found it in United States v. regulation, case, regulation speech of no was involved and a statute forbidding compel employment the use of coercion to of * ** persons perform more than were ‘needed actual sufficiently give warning services’ was held ‘to as definite proscribed by when conduct measured common under- Petrillo, States v. standing practices.’ [United The Roth standard, applied US at court rather than 8]. cases, the stricter standard of First Amendment to the Young v. Ameri Similarly, regulation before it. Theatres, can Mini US S Ct 49 L Ed 2d 310 [427 (1976)], challenged regulated where the ordinance the exhibi sexually explicit movies, plurality opinion tion of rejects Levy, authority of Parker challenge (1974)], 94 Ct L S Ed 2d which the upheld Military a section of the as Code Justice sufficiently specific rejected inapplicable as the standards First Amendment cases. that, persuade these sum, considerations us “In vagueness challenge regulation appraising pornogra- to a light process phy requirements the due the Hawaii Constitution, precedents we same should as have follow by been chosen the United States Court in its challenges under the Fourteenth Amend- determination of ment. The criteria judge adequacy we should which given applicable the notice the statute are those when First present, concerns rather Amendment than stricter regulate criteria which have been evolved for which statutes may speech. difficulty determining there Whether marginal proscription whether conduct is within the the statute Appellant charged, which been statute under has warning Appellant gave subject prosecu- that would be fair core’pornography distribution the ‘hard it tion which of Taylor, limited our case. construction this Cf. (1967)]. that P2d 1014 We conclude Hawaii [49 given due Appellant was notice the fair satisfaction of process requirements both the United States and the of” Hawaii sup Constitutions. (Emphasis 573 P2d 957-58. omitted.) plied, footnotes Inc., Wrestle,

In (La 1978), 2d 831 So State, grounds on other sub nom Burch v. 441 US modified 99 S Ct 60 L Ed 2d 96 the Louisiana rejected obscenity defendant’s claim that an Miller incorporated which was standard unconstitu tionally vague under Louisiana constitution. The court stated: statute, portions quoted “The Louisiana in the * * *, opinion clearly complies

in this with the con- federal requirements regulating only specifically stitutional conduct, which, defined sexual limited to works as taken whole, prurient sex, appeal to portray interest which which, patently way, this in a conduct offensive as taken whole, literary, artistic, political, do not have serious California, [supra, scientific value. Miller 413 US at 25]. (Likewise, statutory guidelines our comply for the trier of fact with the federal constitutional standard for factual determin- obscenity, ation including by contemporary use of Id.) community standards. “As Miller notes, compliance of a state statute with these prerequisites provide constitutional ‘will fair notice to a dealer public such materials that his and commercial activities may prosecution.’ at We are that bring [413 28]. satisfied only such process notice not due and First satisfies federal requirements Amendment but require- also similar notice ments our state constitution. reject

“We therefore the defendant’s contention adequately statute does not inform accused of the conduct proscribed by it. community

“The defendant further contends protection standard for determinаtion of leaves expression jury. freedom to the whim of each Miller states: ‘If a state regard, regulates this law * * * Louisiana’s], obscene material is thus limited [as * * * adequately First protected by Amendment values power appellate independent ultimate courts conduct necessary.’ review of constitutional claims when US at 25].

420 duty independent recognized our conduct an have

“We appellate in the court of constitutional constitutional review Amato, (La 698, 1977)]. 2d As So 703-04 claims. [343 Luck, (La 225, 1977)]: 2d 230 So we stated [353 ‘* * * is or is trial court’s determination that material not the fully presents of reviewable this court. an issue law obscene obscenity by jury a trial Even the factual determination subject appellate to meet must be to full review designed expression. freedom of to effectuate standards 2750, 41L Georgia, Jenkins v. Ed 2d 642 S Ct [418 (1974)].’ properly trial the defendants’ motion “The court overruled assignment no quash indictment. We find merit to this the (Emphasis supplied, error.” 360 So 2d at 835. footnote omitted.) Inc., Books, v.

In Com. United 888, 389 Mass 453 Court of Mas Supreme 406 the Judicial NE2d obscenity claim that an rejected the defendant’s sachusetts the Miller standard was uncon incorporated statute which stitutionally the Massachusetts constitution. vague under court stated: argues that definition of ‘obscene

“The defendant first unconstitutionally vague there because matter’ 31§ partic- contemporary In standards of the Commonwealth. no ular, ‘patently require- on the offensive’ the defendant focuses California, [supra, 413 was based on Millеr v. § ment. Since 31 24-25, claim 33-34], see in the defendant’s US at we no merit Trainor, Amendment. See Commonwealth under the First Common In (1978)]. 374 NE2d 1216 Mass [374 374, 383, Corp., 707 wealth v. Main 357 NE2d 753 Mass [371 unconstitutionally (1976)], ‘is not we held that matter, vague proscription of obscene in its of dissemination matter and “sexual con- of “obscene” its because definitions * * * reasonably standards of provide ascertainable duct” Attorney the N. (emphasis supplied). See District guilt’ for Way Corp., Dist. v. Three Theatres Mass 357 [371 Thureson, Mass Commonwealth (1976)]; NE2d 747 [371 rejected claim (1976)]. again NE2d 750 We requires ‘greater specif Constitution that the Massachusetts obscenity in Common icity’ statutory definition Trainor, See Bunker [supra, 374 Mass at wealth v. 798-99]. Dist., Distrib., Attorney Inc. v. District Hill Suffolk 142, 145-46, (1978)]. NE2d Mass <t * * * * * prior our decisions establish that believe “We 272, 31, in G.L. c. unconstitu § definition tionally vague Rights under Declaration First

Amendment, ‘see again change and we once no reason to Trainor, [supra, ‍‌‌‌​​​‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​​‌‌​​‌​‌​​‌​‍Commonwealth v. at conclusion this time.’ (Emphasis supplied, 453 NE2d at 409-10. Mass 799]. omitted.) footnote (Me City Jacobsky, Portland v. 496 A2d 646 1985), rejected Maine the defendant’s incorporated claim that local ordinance which Miller unconstitutionally standard was under Maine constitution. The court stated: language unchanged

“In since Maine achieved statehood Rights proclaims the Declaration of of our Constitution pertinent part:

“ ‘Every may freely speak, publish citizen write and his any subject, being responsible sentiments on for the abuse liberty.’ of this Const, I, impact provision

“Me. 4. art. the § this publication of obscene materials has heretofore never been analyzed by hand, this Court. On the other the United States Supreme many Court and other federal courts have had application occasions to determine the of the First Amend publications. ment such to We note the with care which the drafters of the Portland ordinance have followed the con junctive three-element test the Supreme that United States California, [supra Miller 24], Court set forth in 413 US at to not scope the expression protected by delineate obscene the safeguards By constitutional First the Amendment. track the Miller definition of ing obscenity, the Portland ordinance passes Any muster the under federal constitution. difference in language between the Maine Constitution the United is, case, States Constitution in the context of this insufficient justify striking develop unique out on our own answer problem to the long difficult definitional that been has litigated under the First Amendment. We often refuse protection extend state expression to obscene the enjoy under Miller test does not constitu federal protection. Accordingly, tional we conclude that the Portland infringe upon ordinance does not the freedom of Defendants’ expression guaranteed by Article Section our Maine Constitution. * * * * agree suggestion Superior

“Nor do we with may obscenity ordinance be void for Court that Portland may vagueness. void An ordinance or a statute be language requires when its either forbids doing people vague an in terms so of common act guess meaning. intelligence at its As we must reiterated Kelby, 528, 529, Commission v. Maine Real Estate A2d (Me 1976)], process requires provide due that the law reason guide intelligible able and standards to the future conduct of infirmity people. We that the is not our conclude found Indeed, it is to see how obscenity Portland ordinance. difficult precisely an ordinance that so the Miller follows definition of obscenity unconstitutionally vague. proscribable could interpret “In the context of this case we do the Maine produce a result different from that which Constitution to under federal constitution.” 496 A2d at would be reached omitted.) (Emphasis supplied, 648-49. footnotes (Mo Hollins, 1975), In State v. 533 SW2d claim that rejected defendant’s Missouri standard, incorporated which the Miller statute unconstitutionally under Missouri constitution. vague was The court stated: Rev Stat

“Defendant also contends 563.280 § [Mo unconstitutionally and that (1969)] vague overbroad protected Vol 1 No is not obscene and is ‘ACTION 5’ expression of the U.S. Constitu under First Amendment One, Eight, Missouri Constitu tion and Section tion.

<<* * * * ^[*] Missouri’s

“Defendant contends Supreme has held to the and overbroad. The Court Missouri Bird, (Mo Wampler contrary. State ex rel v. SW2d 780 [499 Supreme 1973)] line with the U.S. held the statute was States, [supra] v. obscenity guidelines of Roth United Court Vollmar, California, [supra]. See Miller v. also (Mo 1965)]. judicial construction of SW2d 20 [389 statutory language statute, making part of the the becomes sufficiently specific challenge vagueness. for to avoid statute (Mo 1972)]. Crawford, light In State v. SW2d cоnstructions, statute Missouri’s prior judicial its (Emphasis vague overbroad.” 533 SW2d 232-33. supplied.) (1979), Lesieure, 859, 404 A2d 457 121 RI

In State v. rejected the defendant’s Supreme Island Court the Rhode incorporated obscenity statute which that the an claim Miller standard was unconstitutionally vague under Rhode Island constitution. The court stated: I, provisions “We construe the of article section 10 of the Rights

Declaration of of the Rhode Island Constitution as adding guarantees right no further to the of a defendant to be informed of the nature and cause of criminal accusation provided by parallel process than are due terms of the Hamling Federal Constitution which were found to be met States, v. [supra]. United stated, “For the reasons we answer the first certified question by negative holding 11-31-1 § was not impermissible invalid or void for and overbreadth.” 404 A2d at 462. Taylor v. State ex rel Kirkpatrick, 529 SW2d 692

(Tenn 1975), cert den 429 US 930 the Tennessee Supreme rejected the defendant’s claim that obscenity statute which incorporated the Miller standard was unconstitutionally vague under the Tennessee constitution. The court stated: “Next, the defendants assert the definitions con- 2(H)

tained in Section vague Act are so and indefinite they violate the Constitution Ten- § nessee and the First and Fourteenth Amendments of the United States Constitution.

* * * * view, “In our unconstitutionally vague foregoing contention that the definitions seriously cannot be maintained. it %c * * if: * give adequate “The words used warning of the conduct

proscribed and set out sufficiently boundaries distinct fairly law; courts to administer the required. no more is This represents statute good by faith effort Assembly our General comply with recently standards announced Supreme Court of the United in Miller California, States [supra], and most language attacked as is taken verbatim from that opinion. We hold that the definitions here comply attacked applicable with the standards of substantive process.” due (Emphasis supplied.)6 SW2d at 696-97. Ass’n, Inc., (Tenn 1979), 6 In Leech v. American Booksellers 582 SW2d 738 newly Tennessee Court held the enacted 1978 Tennessee unconstitutional, finding which violated both the state constitution and the federal Taylor Miller standard. The state’s obscenity statute, upheld that had been former Kirkpatrick, supra, State ex rel legislature. was then reenacted the state Runions, constitutionality again upheld of that statute was 654 SW2d 407 (Tenn App), app den Cr Stock, A2d Super Com. 346 Pa Pennsylvania defen Superior rejected the the obscenity incorporated claim that an statute which dant’s unconstitutionally vague standard was under the Penn Miller The sylvania constitution. court stated: unlawfully argues next statute “Stock delegates power attorneys legislative district to the several by conferring on them discretion Commonwealth by proceed against alleged violators criminal whether to See prosecution injunction. Pa Stat equitable § or Cons [18 option 5903(g), (h)]. prosecutorial this Stock contends that 2,%lof Pennsylvania Constitution as well offends by confiding a as the Fourteenth Amendment standardless attorneys. disagreе. in We legislative discretion district clear, explicit defining the offense creates a standard statute by in with the definition of announced accordance Court Miller. gives in States the United say attorney in is not deciding no what or the district obscene; only provided is the means discretion in the identified enforcement chosen to combat evils reality legislation. alleged ‘delegation’ This discretion is all, merely particular a manifestation delegation not a but attorneys in discretionary powers of district of the inherent his system justice. attorney A the nature of our district whether, how, invested with broad discretion over office is Commonwealth criminal offenses. See prosecute when Malloy, (1982)] Super (Opinion A2d Pa Cirillo, J.). pros This when the discretion is not lessened deciding legislatively two charged ecutor is with which of effectively techniques of will more authorized enforcement stamping legislative program out commer accomplish obscenity. on the stat Appellant’s constitutional attack cial delegation grounds ute on must fail.

<<* ^[*] * * * actually attack final claim dual “Stock’s (f) provision it This makes on of Section 5903. subsection any person require as a of business illegal condition for for any purchase retailer or take dealings distributor or printed or instrument matter article resale written ‘of an obscene nature.’ 5903(f) on is based prong first of Stock’s attack

“The Stock phrase nature.’ of the ‘obscene asserted explicitly Legislature defined ‘obscene points that the has out statute, (a)(2) materials,’ the term used subsection nature’ as that yet materials of an ‘obscene has not defined (f). disparity appears term subsection Because of the wording, apprehends Legislature sought Stock (f) (a)(2), class of materials in than in but include wider determining since there are no standards what falls within class, (f) supposed argues wider he that subsection fatally vague chilling exert an effect so as to unconstitutional rights. First Amendment on statute, reject reading

“We Stock’s and determine that both subsections refer to the same class of materials. Although wording perhaps imprecise the difference reflects readily drafting, we can ascertain reason therefor. obscenity passed by Legislature in statute as first applied contained a blanket definition of ‘obscene’ which 6, 1972, all subsections of Section 5903. See of Dec. PL [Act 1482, 334, However, Court Common No our § 1]. McDonald, denied, wealth v. cert 290, Pa 347 A2d 816, (1975)], 429 US determined that the definition of Miller, obscenity in the 1972 act did meet the not standards of supra, and hence struck down statute. Thereafter Legislature present rewrote the statute and substituted the definition incorporating language of ‘obscene materials’ Miller. 5, 1977, see 1; of Nov PL No 18 Pa Cons § [Act (‘Definitions’). 5903(b)] However, Stat through apparent § oversight Legislature wording failed to amend the (f) subsection of the statute to take into account that the Act now defined the noun ‘obscene materials’ rather than the adjective Nevertheless, ‘obscene.’ we need not blind ourselves Legislature amending fact that the statute was clearly trying to come within the letter of the law as laid down in Miller. Thus, any interpretation Legislature of what the means materials ‘of an obscene nature’ must refer to the Miller standards quoted substantially verbatim the stat utory definition of ‘obscene materials.’ This result is com pelled only by statutory construction, the rules of but ordinary precepts of common sense. We therefore decline to obscenity flimsy throw out statute on the semantic grounds (Emphasis sup offered here.” 499 A2d at 314-15. plied.) Croll,

See also Com. v. (1984); Super 331 Pa 480 A2d 266 Doe, Long Com. v. v. 130 (1983); 316 Pa 462 A2d 762 Super Etc., Novelty, Market St. & Super 294 Pa A2d 517 Gift sum, my every jurisdiction research shows that examined, constitution, which an has under its state the Miller standard has incorporating statute or ordinance a state constitutional against or ordinance upheld that statute case to the has cited no challenge. That defendant vagueness reliance on Article light in the of his contrary surprising is not challenge under Article I, vagueness and not on section and 21.7 sections 20 several other jurisdictions, In addition to the above chal obscenity statutes have examined state jurisdictions A grounds only. federal constitutional lenged unconstitutional held that their statutes were few have However, my meet the Miller standard. they because did not hinted, has ever appellate state court research shows that no footnote, statute which in a not evеn state’s own cons vague under that satisfies Miller would be titution.8 case principled fails to make a majority simply unconstitutionally that ORS 167.087

for its conclusion nothing in the There is Oregon under the Constitution. departure or our explains justifies majority’s opinion rejec- our explains justifies or authority; nothing federal from jurisdic- other appellate courts of analysis tion of the statutes post-Miller tions that have considered publication that, Oregon surprised Bar on state in a recent State 7 I am Expression law, even did not the section on Freedom of the author of only point challenge was that suggest The author’s to the statute. provided exceptions” time for at the the “historical was not one of therefore, anti-obscenity Constitution, and, adoption Oregon of the Bar, I, Oregon flatly prohibited State section 8. adults is addressed'to making Oregon (1985). only here. is Constitutional Law That claim defendant 1980); Rock, Bentley, (E Supp D Ark Little Inc. v. F 8 SeeWild Cinemas of 499 655 State, 817, State, (Fla 1973); Dyke v. The 209 So 2d 232 Ga Rhodes v. So 2d 351 283 Theatre, People v. (1973); 312, 201 (1974); 2d Slaton v. Paris Adult Ga So 456 231 166 2085, Ward, (1976), 767, 437, 2d 52 L Ed 431 US 97 S Ct Ill 2d NE2d 47 63 349 aff’d (1981), State, 147, 431 den cert (1977); App v. A2d 682 400 E. Baltimore St. 49 Md 738 (1979); Neumayer, v. 341, 275 People State (1982); v. NW2d 230 405 Mich 455 US 940 Bird, Wampler Welke, (1974); v. 402, State ex rel 499 SW2d Minn 216 NW2d 641 298 Co., Inc., app 324, 255, (Mo 1973); A2d Manchester News 118 387 NH 780 (1974); 325, 320 Harding, State (1978); 114 NH A2d 646 dismissed 439 US 949 Gilmore, 741, DeSantis, People (1974); v. 462, 2d 468 120 Misc 489 v. 65 NJ 323 A2d Martin, Illardo, People (1979); People v. (1983); Misc 100 v. 48 NY2d 408 NYS2d 965 Heller, 601, (1979); People 307 v. 352 NYS2d 33 NY2d NYS2d 318 2d 420 456, 192 Bryant, (1973); App 285 NC SE2d 693 State 16 NC NE2d 805 aff’d "Vixen’’, Keating (1974); ex rel 35 Ohio State cert den 419 US SE2d Commonwealth, (1973); Price v. 214 Va 201 SE2d NE2d 880 St 2d Distributors, Inc., (1974); P2d 1049 v. J-R 82 Wash 2d State vagueness issue under state constitutions and have reached opposite majority points nothing the text, conclusion. The in the

history purpose Constitution supports scholarly its conclusion. It cites no research to support analysis gives practical its or conclusion. It no policy demonstrating considerations is not that its conclusion just a convenient vehicle to evade the decisions of the United simply, principled Quite States Court. that is not decision-making.9 majority should bite the bullet and address the

only preserved argued issue in the trial court and briefed and appeal, legislature flatly proscribed i.e., on enacting whether the from

the statute under Article section 8.10 majority County I concur with the that Deschutes case #31301 must be reversed. join opinion.

Warden, J., Rossman, J., in this Lowry, 337, 351-52, 9 SeeState v. (1983) (Jones J., specially 667 P2d 996 Activism, Maltz, see also concurring); The Dark Side State Court 63 Tex L Rev 995 (1985); Linde, Theory Courts, E Pluribus —Constitutional and State L Rev Ga (1984); Collins, Away Reactionary Reliance on State From a Constitutions — Approach, Hastings Q 1, 2 (1981); Howard, State Courts and Constitutional L Const Rights Day Burger Court, in the 873, 940-43 (1976); Deukmejian 61 Va L Rev & Thompson, All Sail and No Anchor-Judicial Review Under the Constitu California tion, Hastings Principled Interpretation (1979); Note, Toward a Const L 975 Q Constitution, the State L 29 Stanford Rev 297 Legislature spend writing 10 The can now the next several ‍‌‌‌​​​‌​​‌​​​‌‌‌‌‌‌‌‌​‌‌‌​​​‌​‌​‌‌​​​‌‌​​‌​‌​​‌​‍months a new statute. In time, enforced; that, again that new statute will after this court will be asked to Legislature may legislate obscenity. decide whether the in the area of adult Defendant case; has raised that issue in this we should decide it now.

Case Details

Case Name: State v. Henry

Court Name: Court of Appeals of Oregon

Date Published: Apr 9, 1986

Citation: 717 P.2d 189

Docket Number: 31300, 31301; CA A26439

Court Abbreviation: Or. Ct. App.