This case concerns the constitutionality of ORS 162.247(l)(b), a statute that makes it a crime to “refuse[ ] to obey a lawful order by [a] peace officer.” Defendant, who was charged with that crime, demurred to the charge on the ground that the statute is unconstitutionally vague and over-broad. The trial court allowed the demurrer and the Court of Appeals ultimately affirmed the trial court’s judgment. On the state’s petition for review, we reverse the decision of the Court of Appeals and the judgment of the trial court and remand to the trial court for further proceedings.
Defendant was charged with violating ORS 162.247(l)(b) (1999), which provides:
“A person commits the crime of interfering with a peace officer if the person, knowing that another person is a peace officer
"* * * * *
“(b) Refuses to obey a lawful order by the peace officer.” 1
Defendant demurred to the charging instrument,
2
arguing that ORS 162.247(l)(b) is unconstitutionally overbroad and vague on its face, in violation of the free speech and assembly guarantees in the Oregon and United States constitutions. The trial court allowed the demurrer. The Court of Appeals initially reversed,
State v. Illig-Renn,
Ultimately, this court reversed the Court of Appeals decision in
Ausmus:
We held that the “refusal to disperse” provision in ORS 166.025(l)(e) was unconstitutionally over-broad because by its terms it restrained conduct (speech and assembly) that the Oregon Constitution protects.
State v. Ausmus,
The Court of Appeals then issued a second opinion in
Illig-Renn,
this time holding that ORS 162.247(l)(b) was unconstitutionally overbroad.
State v. Illig-Renn,
“The disorderly conduct statute prohibits failure to obey a particular kind of lawful order: a lawful order to disperse directed to those who are congregated with others in a public place, intending to cause public inconvenience, annoyance, or alarm, or recklessly creating a risk thereof. The statute violates Article I, sections 8 and 26, of the Oregon Constitution because it prohibits a significant amount of constitutionally protected behavior. The statute at issue in the present case, ORS 162.247(l)(b), contains a much more general prohibition: it proscribes any refusal to obey a peace officer, as long as the refuser knows that the person issuing the order is, in fact, a peace officer. Thus, the ‘interfering with a peace officer’ statute reaches at least all — or nearly all — of the same protected speech and assembly that the ‘disorderly conduct’ statute reaches.”
Illig-Renn III,
*232
Shortly thereafter, the Court of Appeals issued yet another
Illig-Renn
opinion, this time on the state’s petition for reconsideration. The court reaffirmed its holding in
Illig-Renn III
and specifically rejected the state’s objection that, according to the analysis used in Article I, section 8, cases, ORS 162.247(l)(b) is not a proper subject of a facial overbreadth challenge because it does not expressly proscribe constitutionally protected conduct.
State v. Illig-Renn,
The state sought review of the Court of Appeals decisions in Illig-Renn III and Illig-Renn IV, arguing that this court’s cases clearly establish that only statutes that expressly proscribe expression are subject to facial over-breadth challenges under Article I, section 8, and that, logically, a parallel rule should apply to right of assembly analysis under Article I, section 26. The state also argued that what it described as the Court of Appeals’ “novel” approach to overbreadth in Illig-Renn III and IV had no basis in the law and unreasonably expanded the idea of overbreadth. We allowed the state’s petition to consider those arguments and also to consider defendant’s alternative contention that, if ORS 162.247(l)(b) is not overbroad, it nonetheless is unconstitutional on its face because it is impermissibly vague.
We turn first to the issue of overbreadth. In general parlance, a statute is said to be “overbroad” if, by its terms, it reaches conduct that is constitutionally protected and the statute is not susceptible to a narrowing construction.
See, e.g.,Ausmus,
*233
Defendant argues that ORS 162.247(l)(b) is facially overbroad. The Court of Appeals, in considering that argument, opined that the courts should invalidate a statute for facial overbreadth if “it prohibits a significant amount of constitutionally protected conduct or speech and it is not susceptible to a narrowing construction that would conform to legislative intent.”
Illig-Renn III,
The state contends, however, that the Court of Appeals’ facial overbreadth analysis is misplaced because ORS 162.247(l)(b) is not the sort of statute that is susceptible to a facial challenge under the Oregon Constitution. The state argues that, under
City of Eugene v. Miller,
Notably, when the state raised that same argument before the Court of Appeals, that court acknowledged that both
Robertson
and
Miller
contained statements suggesting that statutes that do not by their terms forbid particular forms of expression (called “speech-neutral” statutes by the Court of Appeals) are to be analyzed to determine whether they violate the constitution “as applied.” However, the court ultimately concluded that none of those statements from
Robertson
and
Miller
foreclosed the possibility of a facial challenge to such statutes. The court also suggested that the
*234
statements pertained specifically to free expression challenges and arguably were inapplicable to challenges invoking the free assembly guarantee of Article I, section 26.
Illig-Renn IV,
We respond to that invitation by stating outright that we already have “said so.” First, our prior cases
do
foreclose the possibility of a facial challenge under Article I, section 8, to a “speech-neutral” statute. In
Robertson,
this court repeatedly signaled that a statute is subject to a facial challenge only if it expressly or obviously proscribes expression: Marginal and unforeseen applications to speech and expression are left for judicial exclusion through application of the constitutional rule to the specific facts of a given case.
“In State v. Robertson * * * this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on the pursuit or accomplishment of forbidden results. This court reasoned that a law of the former type, a law ‘written in terms directed to the substance of any “opinion” or any “subject” of communication,’ violates Article I, section 8 [unless the statute falls within a historical exception].
“Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. * * * Such laws are analyzed for overbreadth:
*235 “The second kind of law also focuses on forbidden effects, but without referring to expression at all. Of that category, this court wrote:
“ ‘If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert * * * that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.’ ”
Plowman,
Finally, in
Miller,
this court used the limitation on facial challenges to which
Robertson
and
Plowman
had alluded: We declined to analyze the city ordinances at issue in that case for facial overbreadth because they did not, “by their terms, purport to proscribe speech or writing as a means to avoid a forbidden effect.”
Miller,
The foregoing does not mean that we will ignore a clear case of facial unconstitutionality or overbreadth merely because the statute manages to avoid any direct reference to speech or expression. As this court acknowledged in
State v. Moyle,
As we have explained, the Court of Appeals, in its opinion on reconsideration, also suggested that, to the extent that our Article I, section 8, cases may express the limitation on facial challenges that the state advances, that limitation does not necessarily apply to challenges under Article I, section 26. However, our opinion in
Ausmus
is to the contrary. There, the defendant’s facial overbreadth challenge to the disorderly conduct statute was brought under
both
sections 8
and
26 of Article I, yet nothing in the opinion suggests that a distinct analysis was or should be applied to the section 26 challenge. In fact, this court in
Ausmus
applied a single, undifferentiated overbreadth analysis that began with the fact that the statute at issue, ORS 166.025(l)(e), expressly referred to conduct encompassed within Article I, section 26, and the First Amendment, and ended with the conclusion that the court could not narrow the statute to preclude application to constitutionally privileged conduct in a way that was faithful to the legislature’s apparent intent.
See generally Ausmus,
In summary, the state is correct that only statutes that by their terms proscribe the exercise of the constitutionally protected rights of assembly or expression are susceptible to a facial overbreadth challenge under Article I, sections *237 8 and 26. Of course, the state may apply statutes that do not expressly or obviously refer to assembly or expression in a way that restricts the rights guaranteed by sections 8 and 26 in some circumstances, but challengers must attack those applications of the statutes, and not the statutes themselves.
It follows from the foregoing that the Court of Appeals erred in its analysis of defendant’s overbreadth challenge under the Oregon Constitution in the present case. A person charged with violating that statute is left to challenge the constitutionality of its application to his or her particular conduct.
Before this court, defendant argues in the alternative that ORS 162.247(l)(b)
does
expressly restrain expression in violation of Article I, section 8. In that regard, defendant suggests that the statute describes conduct — “refusing] to obey” — that necessarily encompasses speech or expression. She argues, in particular, that “[t]o refuse is to express unwillingness to comply or accept; invariably, it conveys a message of opposition or dissent whether by verbal means or an expressive act.” However, as we have stated before, the fact that persons seek to convey a message by their conduct, that words accompany their conduct, or that the very reason for their conduct is expressive, does not transform prohibited conduct into protected expression or assembly.
See, e.g, Huffman and Wright Logging Co. v. Wade,
We turn, next, to defendant’s claim that the statute is facially overbroad under the First Amendment to the United States Constitution. That discussion need not detain us long. For purposes of the First Amendment, courts may invalidate a statute for facial overbreadth only if the statute proscribes a substantial amount of protected conduct in relation to its legitimate sweep.
See Broadrick v. Oklahoma,
The problem with defendant’s argument is that it fails to acknowledge that the statute pertains only when a person refuses to obey a police officer’s “lawful” order. The inclusion of that word removes from the statute’s sweep any refusal to follow an order that is inconsistent with the substantive law, including constitutional provisions guaranteeing the right of free expression and assembly. It may be true that the statute still might literally apply to some instances of constitutionally protected conduct, even when the “lawful order” requirement is taken into account (including a refusal to obey an order to disperse under circumstances like those discussed in this court’s opinion in
Ausmus,
We turn to defendant’s contention that ORS 162.247(l)(b) is unconstitutionally vague. Defendant’s arguments in that regard focus on the statutory term “lawful order.” She contends that that term is impermissibly vague in two respects: (1) it permits arbitrary and even retroactive *239 punishment and delegates uncontrolled discretion to judges, juries, and law enforcement personnel to decide what and whom to punish, thereby violating the equal privileges guarantee of Article I, section 20, of the Oregon Constitution, the ex post facto prohibition of Article I, section 21, and the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and (2) it fails to provide fair warning of what kind of orders are unlawful and must be obeyed, also in violation of the Due Process Clause. 4
We turn, first, to the related issues of arbitrary or unequal application and uncontrolled discretion. In
State v. Graves,
“[A] criminal statute must not be so vague as to permit a judge or jury to exercise uncontrolled discretion in punishing defendants, because this offends the principle against ex post facto laws embodied in Article I, section 21, of the Oregon Constitution. The equal privileges and immunities clause is also implicated when vague laws give unbridled discretion to judges and jurors to decide what is prohibited in a given case, for this results in the unequal application of criminal laws. A criminal statute need not define an offense with such precision that a person in every case can determine in advance that specific conduct will be within the statute’s reach. However, a reasonable degree of certainty is required by Article I, sections 20 and 21.”
(Citations omitted.)
Defendant contends that ORS 162.247(l)(b) is unconstitutionally vague under that standard, because the term “lawful order” is “indeterminate” and “draws its content from the infinitely vast array of situations found in police-citizen encounters.” We disagree. In our view, the term “lawful order” itself grants no discretion and, thus, no opportunity for unequal application, to the persons who are charged with enforcing and administering that law. 5
*240
The term is similar to the one that this court considered in
State v. Florea,
“The statute does not leave a judge or, under proper instructions, a jury with unconstrained discretion to define a crime. Even though a question of a public servant’s authority may be one of first impression in a court, it is governed by sources of law and delegated authorization outside the criminal code itself, sources to which a public official in any event must turn in order properly to understand his job. If there is vagueness, it does not lie in [the official misconduct statute].”
Id. at 504.
For the same reason, the term “lawful order” in ORS 162.247(l)(b) does not create an opening for unequal or discretionary application. It leaves nothing to the ad hoc judgment of the individual police officer, judge, or jury but, instead, invokes ascertainable standards from an outside source, i.e., the substantive laws of this state. It does not invite unequal treatment in violation of Article I, section 20, of the Oregon Constitution or ex post facto application in violation of Article I, section 21.
Neither does the phrase “lawful order” create an unlawful delegation issue under the Due Process Clause of the Fourteenth Amendment. For due process purposes, a statute is vague in that sense if it either contains no identifiable standard,
Kolender v. Lawson,
*241
That leaves us to consider whether ORS 162.247(l)(b) is vague in the sense that it fails to provide fair warning, in violation of the Due Process Clause of the Fourteenth Amendment. In the past, we have described that “fair warning” requirement in the following terms: “The terms of a criminal statute must be sufficiently explicit to inform those subject to it of what conduct on their part will render them liable to its penalties.”
Graves,
Defendant contends that ORS 162.247(l)(b) fails to give that degree of fair warning because the touchstone of guilt or innocence — the lawfulness of the peace officer’s order — requires sophisticated legal analysis and “ultimately depends on the factual circumstances and conduct giving rise to the order.” Defendant suggests that a “person of ordinary intelligence” would not be able, at the relevant time, to perform the analysis that would be required to determine whether an order was lawful:
“To know what this law requires, a person must necessarily conduct sophisticated legal analysis to determine whether an order was lawful. Specifically, the person must (1) possess substantive knowledge of statutory and constitutional law, (2) apply that knowledge during an ongoing encounter with an officer, and (3) determine whether the order is constitutional. Although ignorance of the law is not a cognizable defense against criminal liability, comprehending the law here is a task more suited to a constitutional scholar than a person of ordinary intelligence untutored in the law.”
That argument, however, merely expands on an old saw — that the common man cannot reasonably be expected to know and understand the complexities of the law. We generally have rejected such arguments, instead presuming that publication and dissemination of a substantive law is sufficient to inform the public of its import.
See, e.g., Bartz v. State
*242
of Oregon,
Defendant argues, finally, that ORS 162.247(l)(b) is rendered facially vague by the addition of an exception to the general rule stated in that section. In particular, after defining the crime of “interfering with a police officer” at paragraph (l)(b), and stating in subsection (2) that the crime is a Class A misdemeanor, subsection (3) provides:
“This section does not apply in situations in which the person is engaging in
“(a) Activity that would constitute resisting arrest under ORS 162.315; or
“(b) Passive resistance.”
That is, paragraph (3)(b) of the statute defines conduct that is not a violation of its substantive prohibition. Defendant notes, however, that the term “passive resistance” is undefined and argues that it is unclear whether the term encompasses only nonviolent resistance to arrest or any nonviolent refusal to obey an order. Defendant contends that the inclusion of such a vague exception to the prohibition at ORS 162.247(l)(b) renders the prohibition itself unconstitutionally vague.
Assuming that a statutory prohibition that is clear on its face can be deemed unconstitutionally vague on the ground that another provision that lessens the statute’s sweep is unclear, defendant has not demonstrated that ORS 162.247(l)(b) is impermissibly vague on that ground. Whatever the term “passive resistance” may encompass, it speaks to particular fact patterns that will exist at the fringes of the “lawful order” inquiry and, as such, may be occasions for *243 arguments about the precision of jury instructions. Put differently: While there may be room to argue about whether certain conduct does or does not fall within the “passive resistance” exception, the exception is not broad enough to obfuscate the meaning of the overall prohibition on “refusfing] to obey a lawful order by [a] peace officer.” As we previously have indicated, absolute precision is not required to overcome a facial vagueness challenge.
We hold that ORS 162.247(l)(b) is not facially over-broad or vague in any of the ways that defendant has argued. It follows that the circuit court erred in allowing defendant’s demurrer on those grounds and the Court of Appeals erred in affirming the circuit court’s decision.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
In 2005, the legislature amended ORS 162.247(l)(b) (1999) in ways that do not affect the present case. Hereinafter, we refer to the statute simply as ORS 162.247(l)(b).
Because the case comes to us on a demurrer, the particular facts underlying the charge are irrelevant.
We do not deny that the term “refuse” sometimes is used to convey a primarily expressive act. According to Webster’s Third New Inti Dictionary (unabridged ed 2002) at 1910, one definition of the term “refuse,” is to “show or express a positive unwillingness to do or comply with [something asked, demanded or expected].” (Emphasis supplied.) But the same dictionary offers other definitions that have no overtly expressive content, e.g., “decline” and “deny.”Id.
It is clear that when ORS 162.247(l)(b) refers to a person “refus[ing] to obey” a peace officer’s lawful order, the statute is concerned primarily with the act of resisting the order and not with the idea of -unwillingness communicated by that act. Defendant has suggested that, if the legislature intended that meaning, it could have chosen a more speech neutral term, such as “fails to obey.” However, it would seem that the word “refuse” was chosen not for its expressive connotation but because it conveys a different nuance, viz., that the failure to obey must be knowing or intentional.
The “fair notice” component of the vagueness analysis is not an issue under the Oregon Constitution.
See generally Delgado v. Souders,
Of course, police officers may have discretion in deciding not to arrest a person who literally has violated ORS 162.247(l)(b), but the statute itself is not the source of that discretion.