STATE OF OREGON, Rеspondent, v. JOHN HOWARD MAYNARD, Appellant.
(CC 10-92-06551; CA A81182)
Court of Appeals of Oregon
May 31, 2000
Submitted on remand November 18, 1998; resubmitted en banc January 13, 2000
168 Or. App. 118 | 5 P.3d 1142
reversed in part; otherwise affirmed
BREWER, J.
Haselton, J., concurring.
Armstrong, J., concurring.
Edmonds, J., dissenting.
Landau, J., dissenting.
In State v. Maynard, 138 Or App 647, 910 P2d 1115 (1996), this court held that the prohibition of
We begin our analysis with consideration of the Supreme Court‘s decision in Stoneman. The defendant there was indicted for purchasing a magazine and a video containing visual reproductions of children engaged in sexually explicit conduct, in violation of
The court first rejected the state‘s contention that it should modify its traditional approach by balancing the public interest in protecting children from harm against the burden on freedom of expression imposed by the statute:
“We reject the state‘s suggestion that we abandon the rule that the court traditionally has employed in resolving Article I, section 8, issues, in recognition of the particular importance of the legislative objective at issue here.” 323 Or at 542-43.
The court then began its analysis under Article I, section 8. See generally State v. Robertson, 293 Or 402, 649 P2d 569 (1982); State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den 508 US 974 (1993). It held that the statute described and prohibited commerce in certain forms of communication. The court next concluded that the prohibition against purchasing visual reproductions of children engaged in sexually explicit conduct could not be justified as a historical exception to the prohibition of Article I, section 8, pursuant to Statutes of Oregon 1854, chapter XI, section 10, pp 210-11.7 In its next step, the Supreme Court parted with our analysis in Stoneman, a departure with significant implications for this case. The court concluded that
Critical to the Supreme Court‘s decision was the view that the context of the statute, in addition to its text, informs an understanding of the policy underlying the statute. Id. at 546. Relying on the taxonomy established in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 P2d 1143 (1993), the court examined other statutory provisions relating to
Finally, the court upheld the statute against an overbreadth challenge, interpreting it as “narrowly tailored to reach only forbidden effects [i.e., commerce that is a direct fruit of child abuse] and [that it] did not extend to privileged expression.” Id. at 550. With the foregoing in mind, we assess the impact of Stoneman on the constitutional challenge to
Defendant in this case was convicted of furnishing obscene materials to minors.
We next determined that materials depicting sexual conduct or sexual excitement are expression encompassed by Article I, section 8. That determination is consistent with Stoneman and other relevant Supreme Court decisions. See State v. Henry, 302 Or 510, 515, 732 P2d 9 (1987).
We next addressed whether the statute was directed at harmful effects resulting from the exposure of children to sexually explicit materials or, alternatively, whether it was directed to the content of an opinion or communication. Maynard, 138 Or App at 652-54. We relied on our examination of the text of the statute and found that it neither expressly nor by clear implication identified the effects to be avoided. Therefore, we concluded that the statute was “directed solely at prohibiting certain communication with minors.” Id. at 654. We did not examine related statutory provisions for context in order to ascertain any effect forbidden by the statute. In light of Stoneman, our analysis was therefore incomplete. We now examine the context of the statute to determine whether it sufficiently identified the harmful effects it sought to prevent.
A statute‘s context includes related statutory provisions. PGE, 317 Or at 611.
“In any prosecution under
ORS 167.065 to [ORS]167.080 , it is an affirmative defense for the defendant to prove:“(1) That the defendant was in a parental or guardianship relationship with the minor;
“(2) That the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a
retail outlet affiliated with and serving the educational purpose of such organization; “(3) That the defendant was charged with the sale, showing, exhibition or display of an item, those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some legitimate purpose therein other than titillation;
“(4) That the defendant had reasonable cause to believe that the person involved was not a minor.”
The word “titillation” was not defined by the legislature in
Stoneman is not the first Supreme Court decision to remind us that we may look beyond the express language of a statute to ascertain the harmful effects that the legislature sought to prevent through its enactment. See, e.g., Moser v. Frohnmayer, 315 Or 372, 379, 845 P2d 1284 (1993); Plowman, 314 Or at 165-66. We echo the view of Judge De Muniz in his dissent from our first decision in this case:
”
ORS 167.065(1)(a) makes no explicit reference to what effects it seeks to prevent. However, the state contends that the statute is ‘aimed at protecting children from the harmful effects of viewing hardcore pornography.’ I can conceive of no other purpose, and have no difficulty inferring that was the legislature‘s purpose.” Maynard, 138 Or App at 687.
Therefore, in context with
Our conclusion contrasts with Judge Armstrong‘s concurring analysis in our first decision in this case. Id. at 661-62. Judge Armstrong concluded that the statute does not focus on harm to children, because
“it does not apply to parents and guardians who furnish obscene materials to minors for the purpose of harming or endangering their welfare, because those people enjoy a blanket exemption from the statute. * * *
“* * * * *
“If the material were inherently harmful, the law would not allow the exceptions to its coverage that it does.” Id.
We acknowledge the irony that parents, guardians, and even museum employees who may prey on children by furnishing
The fact that the legislature failed to reach all potential culprits does not mean that it believed attempted titillation of minors by means of obscene materials is not necessarily harmful. In fact, the contrary is evident. There is no plausible explanation for the creation of a defense such as is provided in
We also disagree with the narrow reading that Judge Armstrong gives to the holding in Stoneman in his concurrence on remand. The concurrence asserts that “the problem [with the statute] is that the prohibition is written in terms of the content of the material rather than the purpose for which it is furnished.” 168 Or App at 152 (emphasis added) (Armstrong, J., concurring). However, the concurrence does not take into account Stoneman‘s lesson that a search for forbidden effects extends to the context of the statute creating a crime and is not confined to an examination of the elements of the offense. 323 Or at 547-48. That context may include any relevant defenses to the crime that are found in related statues. Id. We have followed that holding in
Following the order of analysis in Robertson, we next turn to the question whether the forbidden harm is such that the legislature may restrict expression in confronting it. State v. Moyle, 299 Or 691, 699-702, 705 P2d 740 (1985). The legislature‘s power to identify and proscribe effects that it considers harmful is plenary, subject to constitutional limitations. Id. at 699. Stoneman confirmed that the legislature is empowered to restrict expression in order to prevent harm to children and, in that case, the court concluded that
We next consider whether the statute reaches communication that cannot be excluded from its scope by a permissible narrowing interpretation—i.e., whether it is overbroad. Moyle, 299 Or at 701-02; Robertson, 293 Or at 418. A
We begin with the observation that laws such as
In State v. Frink, 60 Or App 209, 653 P2d 553 (1982), we held that the portion of
In rejecting the state‘s argument under
“[t]o do as the state argues would clearly require a ‘construction’ of the specific language of
ORS 167.085(3) to include giving, renting, loaning or otherwise providing—all forms of furnishing.“In other words, we would be required to broaden the defense in order to narrow the proscription. To do that, we would be inviting legislation proscribing free expression, leaving it to the courts to protect that freedom in individual cases. We may not do that. State v. Spencer, 289 Or 225, 611 P2d 1147 (1980); [Robertson].” 60 Or App at 215-16. (Footnote omitted.)
We reasoned in Frink that “the scope of the statute may not be narrowed by construction, because the free expression guarantee invoked by the defendant forbade the enactment of the statute.” Id. at 214. We relied on Robertson and quoted several passages from that decision, including the following:
” ‘As the quotation from [Spencer] states, it is a prohibition expressly directed at lawmakers at the time of considering a proposed law and forbidding passage of any law that in terms restrains the “free expression of opinion” or restricts “the right to speak, write, or print freely on any subject whatever.” It does not invite the enactment of such laws, leaving it to courts to protect freedom of expression in
individual cases. See 289 Or at 228.’ 293 Or at 413 n 10.” Id. at 215.
We reaffirmed the reasoning of Frink in State v. Woodcock, 75 Or App 659, 706 P2d 1012 (1985), rev den 300 Or 506 (1986). There, the defendant sold lapel buttons to minors containing slogans that were obscene. Once more, the state relied on
“Our reasoning in Frink applies here. Because
ORS 167.065(1)(b) applies to the giving, renting, loaning or otherwise providing materials containing ‘obscenities,’ regardless of the significance of the words in the context of the work taken as a whole, the statute is unconstitutionally overbroad under the Oregon Constitution.” Woodcock, 75 Or App at 662-63.15
The reasoning of Frink and Woodcock controls the overbreadth analysis in this case as well. Whether we approve or not, minors are regularly exposed to visual images, including television programs, movies, and videos that depict sexual conduct and sexual excitement in various levels of detail. Because
The state attempts to demonstrate equivalence in the statutory terminology by focusing on the meaning of the word “showing,” as used in
That argument falters because the statutory meaning of “furnish” includes acts of transfer and distribution such as “giving,” “renting,” and “loaning.” In contrast, the words “display,” “showing,” and “exhibition” ordinarily convey the act of presenting something for view. “Displays publicly” is defined in
It is true that both text and context must be examined at the first level of analysis under PGE. The state observes that
It may well be, as suggested by the dissent in Woodcock, that the legislature simply made one or more mistakes in drafting or compiling the relevant statutes in various stages of development. However, we do not examine legislative history under PGE unless we are unable to determine the meaning of the statutes through examination of their text and context. Fidanque v. Oregon Govt. Standards and Practices, 328 Or 1, 9, 969 P2d 376 (1998). Moreover, even assuming that the legislature made such a mistake, the courts are not free to expunge it in the guise of statutory interpretation.
We now turn to our disagreement with Judge Landau‘s dissent. We have left our discussion of the dissent to the end because, as we will explain, the dissent‘s analysis reaches an issue that, when properly viewed, has no place in the decision of this case.
After we concluded in our original opinion that
“That territorial [statute] was directed at persons who ‘import, print, publish, sell or distribute [matter] containing obscene language or obscene prints * * * manifestly tending to the corruption of the morals of youth.’ But, as this court noted in Henry, that territorial statute ‘contained no definition of “obscene” and * * * was directed primarily to the protection of youth.’ 302 Or at 522. Consequently, this court concluded in Henry that the territorial statute provided no support for any ‘well-established historical exception to freedom of expression.’ Id. We agree with the Court of Appeals[‘] majority that, without more, that territorial statute did not sufficiently and clearly establish an historical exception within which the statute under review * * * could be said ‘wholly’ to fall.” Stoneman, 323 Or at 545 (emphasis added).
In our view, the court in Stoneman adhered to the conclusion that the territorial statute provided “no support for any ‘well-established historical exception,’ ” not merely an exception relating to the statute under review. Id. (emphasis added). The dissent, however, correctly observes that the court mentioned, in dictum contained in a footnote, the possibility that the protection of children, in general, may constitute a historical exception to the Article I, section 8, guarantee of free expression.18
Based on that dictum, the dissent conducts an exhaustive search of history and an elaborate analysis of the historical exception doctrine, ultimately concluding that the framers of the Oregon Constitution intended such an exception for regulation of the distribution of obscene materials to minors and that
We begin with the roots of the dissent‘s undertaking. This case was remanded to us “in light of” Stoneman. By its single line mandate, we infer that the Supreme Court meant to direct us to the holding of Stoneman, which follows its analysis of the difference between laws that focus on the content, as opposed to those that focus on the effects, of obscenity involving children. The dissent disagrees, apparently assuming that we were directed, instead, to dictum, that, if the dissent has its way, bypasses the heart of Stoneman‘s analysis altogether. Although we agree, in general, with the dissent‘s implicit premise that the law should be correctly announced and applied on remand, we do not believe that the dissent has addressed the problem that we have been instructed to consider. Nonetheless, because of the importance of the issues the dissent raises, we are compelled to respond.
We take issue with the procedural order of inquiry followed by the dissent. The dissent‘s historical exception analysis precedes and, given the conclusion it reaches, obviates any need for determining whether the statute focuses on the content of expression or on its effects. That methodology is erroneous and the error infects the outcome of the analysis.
The regulation of harmful effects achieved through expression does not require a historical exception under the Robertson methodology. In Plowman, the Supreme Court explained the tiers of that methodology:
” ‘unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.’ Id. at 412.
“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:
” ‘When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such “overbreadth.” ’ Ibid.
“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 (apart from a vagueness claim) 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 .’ Id. at 417.” Plowman, 314 Or at 163-64.
It is clear from Plowman that the historical exception analysis applies only to statutes that focus on the content of expression rather than on its effects. The court adhered to that formulation in City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994) (Laws that focus on content of speech, substance of opinion, or subject of communication
The dissent follows a different method of analysis, which causes it to detour into an unnecessary examination of the historical exception doctrine. The dissent mistakenly undertakes its analysis without first determining whether
In Stoneman, the court began its analysis in the tradition of Robertson.
“We begin that exercise by deciding whether
ORS 163.680 (1987) was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ Robertson, 293 Or at 412. A statute that is so written is invalid on its face, unless it fits ‘wholly’ within some ‘historical exception.’ Id.” Stoneman, 323 Or at 543 (emphasis added).
The foregoing statement is entirely consistent with the principle that the historical exception analysis is limited to content-focused laws. However, the immediately succeeding paragraph in Stoneman begins:
“If the enactment‘s restraint on speech or communication lies outside an historical exception, then a further inquiry is made—whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.” Id. at 543 (emphasis in original).
Later in its analysis, before concluding that
If the court had said nothing else about its application of the Robertson/Plowman methodology, we might agree with the dissent that an implicit shift in that methodology had occurred, requiring analysis of any claimed historical exception before we consider whether the challenged law focused on content, rather than on the effects of expression. However, the court did say more, and what it said leads to the conclusion that no change in methodology was intended.
The court also said in Stoneman:
“It is true, as the Court of Appeals recognized, that the universe of statutes may be divided initially into two categories—those that focus on the content of speech and those that focus on the effect of speech. But, as the summary of our methodology‘s four steps indicates, a reviewing court‘s work is not over when a statute is placed into one or another of those general classifications. Because the statute in question described and prohibited commerce in certain forms of communication, it must be examined under one or the other of the first two categories identified in Robertson and reiterated in Plowman.
“Under the first category, the statute could pass constitutional muster only if the restraint that it imposed falls ‘wholly’ within some historical exception.” Id. at 544-45 (emphasis added).
The court then proceeded to discuss the historical exception arguments made by the parties along with our analysis of the issue.19 The court turned next, as we have already said, to the “content vs. effects” portion of its analysis. Significantly, however, the court prefaced that discussion with “[w]ith respect to this second category, we think it is clear that
First, such an assumption would impair the logical consistency of the court‘s decision. As we have observed, the court began its analysis with the well-understood proposition that content-focused laws are facially invalid unless authorized by a historical exception. The court next posited that, if such an exception is not found, we ask whether the focus of the law is on the effects of communication. There is, at the least, a semantic tension between those propositions because the second, depending on how it is understood, sеems to reverse the order of inquiry established by the first.
The Supreme Court has identified only two categories of laws involving speech within the meaning of
A different reading of the opinion would violate a principle we have previously followed in order to avoid the
“The problem with petitioner‘s argument is that it takes each of the tests or factors enumerated in [Clackamas Co. v. Holmes, 265 Or 193, 508 P2d 190 (1973)], as being wholly independent of the others. Although Holmes contains some isolated language which can be read as supporting that view, the opinion (like all other judicial opinions) must be read as a whole and must be read with the understanding that the court intended it to make sense.” Id. at 6.
Stoneman remains faithful to the Robertson/Plowman methodology and is also internally consistent if understood as we have urged. If read as the dissent understands it, neither of the foregoing statements is true.
Second, the dissent‘s reading of Stoneman‘s framework is contradicted by later Supreme Court decisions that address the structure of analysis under
”
Article I, section 8 , forbids the enactment of any statute that is written in terms directed to the restraint of ‘free expression of opinion’ or the restriction of ‘the right to speak, write, or print freely on any subject’ of communication, unless the restraint is wholly confined within some historical exception to the free speech guarantees. [Citing Robertson.]Article I, section 8 , does not prohibit the enactment of statutes which focus on forbidden effects of expression, if they are not directed at the substance of expression.” Id. at 298-99 (emphasis in original).
Fidanque and Rangel, make clear, as do the cases preceding Stoneman, that
Assuming for the sake of argument that the dissent has followed the correct order of inquiry or, alternatively, that
Our first substantive disagreement is with the dissent‘s conclusion that restraints such as that imposed by
Although, as the dissent acknowledges, the Supreme Court ultimately rejected the territorial statute as the source of a historical exception for obscenity it did not restrict its review to Oregon antecedents. Before discussing the territorial statute, the court concluded that there was no well-established historical exception for obscenity outside of Oregon either.
“From our review of the English and American cases and statutes, we conclude that restrictions on sexually explicit or obscene expressions were not well established at the time the early freedoms of expression were adopted. * * * The point of our historical review * * * is that while there may long have been a view that ‘obscene’ materials were improper and not privileged, the pejorative label has not described any single type of impropriety. The term
‘obscene’ simply functioned as a condemnatory term declaring words, pictures, ideas or conduct as improper by definition, whatever may, from time to time, be placed within the definition, e.g., ‘blasphemous,’ ‘profane,’ ‘immoral,’ ‘depraved,’ ‘corrupt,’ ‘lewd,’ ‘lascivious,’ ‘impure’ and ‘hardcore pornography.’ ” Henry, 302 Or at 520.
The court‘s conclusion, contrary to the dissent‘s suggestion, is a direct holding of the case, because Robertson required the court to make precisely the sweeping examination it did in order to complete the historical exception analysis.
The dissent makes a similar foray into the depths of legal history but comes to a very different conclusion. In doing so, the dissent focuses on historical examples of laws predating the adoption of the Oregon Constitution that specifically restricted the distribution of obscene materials to minors. The dissent mentions a couple of illustrations from ancient Greek history, a few early to mid-nineteenth century cases, an English law enacted in 1857, and ten state enactments predating 1859 that prohibited the distribution of obscene materials tending to corrupt the morals of youth. However, the dissent relegates to a footnote its discussion of the Supreme Court‘s warning in Henry that statutes enacted at or near the time Oregon‘s Constitution was adopted are not necessarily to be given much weight because the drafters were “concerned with broad principles of long-range significance.” Id. at 521-22. Unlike the dissent, we do not view that statement as cryptic at all. Rather, it is a strong admonition against the statute-counting exercise that is, at least, one cornerstone of the dissent‘s analysis.
Perhaps recognizing that the evidence it cites is not exactly an overwhelming body of law, the dissent primarily focuses, as did the Supreme Court in Henry, on the state of obscenity law as it generally existed in the eighteenth and nineteenth centuries, without regard to restrictions peculiar to minors. The dissent‘s disagreement with Henry‘s view of that history highlights the perils of its quest, especially in light of the uncertainties in the application of the Robertson template that the dissent identifies. Each opinion arrives at
After reviewing the historical evidence, the court in Henry concluded that the term “obscene” did not describe “any single type of impropriety“; its meaning evolved over time as dictated by the then-existing morals and values of society. Id. at 520. In other words, the court concluded that laws restraining the dissemination of obscene materials were in fact restraining the freedom of public disclosure and debate over expression society deemed improper at that time. Id. The court‘s point was that “obscenity” does not have any immutable or transcendent legal meaning. Unlike the population of conventional wrongs identified as historical exceptions in Robertson, including, for example, perjury, fraud and theft, whose elements are both constant and widely understood, obscenity-based crimes largely follow the mores of an era.20
The dissent advances a novel method in order to bypass the dilemma posed by Henry. The dissent suggests that, whatever the difficulties inherent in defining obscenity may be, restraint of the specific conduct proscribed by
The problem with that argument is that it takes the historical exception analysis beyond its rational limits. The dissent points to few specific prohibitions constituting precise
Even more fundamentally, however, the dissent‘s shift in focus from the ill-defined term “obscene” to a narrower band of specific conduct reflects a blurring of the methodology of
Robertson identified a small handful of possible historical exceptions that were specific, well-defined, and undisputably entrenched in common law. Whether or not the Robertson compendium is open ended, it is likely a very short list, as well it should be. At best, history is hard to establish convincingly. The limitation of Robertson‘s unique historical exception analysis to a narrow band of wrongs, with clearly established elements that describe specific prohibitions, avoids the even more artificial process of distillation and revision proposed by the dissent. Because the dissent sets the bar too low, it would emblazon nineteenth-century thinking on twentieth-century challenges in the law of obscenity, without the screening value of overbreadth review.
The dissenting judges believe that it is necessary first to consider whether the statute reflects a historical exception; in concluding that it does, they overlook its overbreadth. However, that problem should not be so lightly dismissed. The pioneers would likely be bewildered, if not
The dissents focus, for example, on the requirement that a historical exception must be well established but they do not consider how an exception can be well established in the age of the framers without also reflecting values that will endure for centuries more. And what of the requirement that the statute be “wholly contained” within a historical exception? By defining it in sweeping terms as the protection of children from obscenity, the dissents craft an exception that may “wholly contain” the statutory offense when we consider, in isolation, the statute‘s focus on the corrupting effect of obscenity on minors. However, they fail to appreciate that the critical gap between the reach of the offense and the scope of the exemptions created by
If a statute is effects-based, there is no reason to consider whether it is enshrined by history; it is, however, necessary to separately consider whether it is overbroad. If it is content-based, it may nonetheless reflect a narrowly
Our next disagreement with the dissent lies with the portion of its historical exception analysis addressing whether
Regardless, however, of the proper phrasing of the test, the evidence on which the dissent relies in concluding that the alleged exception survived the adoption of
With respect, all that the cited evidence shows is that legislatures have long recognized that government has the authority to regulate expression when it properly focuses on the forbidden effects of that expression, rather than on its substance. The territorial statute, as later re-enacted, defined its proscription in terms of materials “tending to the corruption of the morals of youth.” Virtually without exception, the identical focus on the effects of expression also appeared in the statutes that the dissent cites as examples of the existence of an exception, specifically relating to youth, dating back to the early to mid-nineteenth century. 168 Or App at 182 (Landau, J., dissenting). Those statutes do not reflect a historical exception to freedom of expression in the sense contemplated by Robertson. Instead, they constitute durable evidence that the guarantees of free expression simply do not prohibit legislative regulation of harmful effects that arise from that expression.
Convictions on counts 2, 3, and 4 reversed; otherwise affirmed.
HASELTON, J., concurring.
I agree with the majority opinion that: (1) Under Stoneman‘s contextual analysis,
The majority holds that State v. Stoneman, 323 Or 536, 920 P2d 535 (1996), requires us to repudiate our prior decision in this case and to conclude that
I will try not to repeat what I said at some length in my first concurring opinion in this case. I continue to believe that what I said in that opinion is correct. All that Stoneman did was to add a refinement to the relevant analysis.
As I explained in my previous concurrence, the Oregon free speech analysis provides meaningful guidance to lawmakers about the restrictions on expression that they can impose, and it promotes truth in lawmaking on that subject. It does that by drawing a distinction between two tyрes of laws that can be adopted to restrict expression.
One type involves laws that come within a well-established historical exception to the protection afforded free expression by
“so as not to imply that constitutional freedom of expression today does not extend to crimes known before the Bill of
Rights, such as seditious or criminal libel, that restrained freedom of public disclosure and debate.”
Id. at 433 n 28. In that light, a crime is a conventional crime if it restricts expression to prevent its use as an instrument to cause harm. For example, laws against fraud restrict expression to prevent people from using it to take money from other people by dishonest means, and laws against perjury and false swearing do so to prevent people from using expression to impair governmental functions that depend on accurate information. That type of purpose contrasts with laws that restrict expression to control behavior by controlling people‘s ideas and beliefs. For example, laws against seditious libel restrict expression about the government in order to control people‘s attitudes and behavior toward it. Similarly, a law that restricted the dissemination of racist literature to prevent people from developing racist beliefs and acting on those beliefs would not be a conventional crime involving expression.1
The distinction between conventional and other crimes involving expression is important, because it bears on whether the laws on those crimes survived the adoption of
The role that that type of law plays for lawmakers who want to restrict expression is limited, because few laws come within an historical exception. However, lawmakers concerned about conduct that is regulated by such laws
“may revise [those laws] and extend their principles to contemporary circumstances or sensibilities. If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means. Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle.”
Robertson, 293 Or at 433-34 (citations omitted).
The second type of law that
“A law of that kind is [one] that expressly or by clear inference identifies the effects [that] it addresses, and that applies when the effects are shown to exist. * * *
“To be valid under
Article I, section 8 , such a law must satisfy the following test: First, the effects to which the law is directed must be effects that the state lawfully can address by restricting expression. * * * Second, the law must function so that it applies only when the harmful effects to which it is addressed are shown to exist. * * * Finally, the law must not reach constitutionally privileged communication, that is, it must not prohibit or regulate expression in which people have a privilege to engage without governmental interference.”
State v. Maynard, 138 Or App 647, 657-58, 910 P2d 1115 (1996) (Armstrong, J., concurring) (emphasis in original; citations omitted), vacated and remanded 327 Or 582, 964 P2d 264 (1998).
The law in Stoneman prohibited the purchase of visual reproductions of children engaged in unlawful sexual conduct. The court identified the harm against which the law was addressed as the sexual abuse of children involved in the production of the proscribed material. The court concluded that the law
“prohibited the purchase of certain communicative materials, not in terms of their communicative substance, but in terms of their status as the products of acts that necessarily have harmed the child participants. So understood, it will be seen that the statute punished sexual exploitation by commerce that is a continuation and an integral part of the underlying harmful acts.”
Stoneman, 323 Or at 548 (emphasis in original). Given the harm against which the law was addressed, the state would necessarily establish that harm by establishing the content of the proscribed material. Hence, the law satisfied the second part of the test for effects-based laws, because it restricted expression only when the harmful effects against which it was addressed existed.
Contrary to the lead opinion‘s view, the law at issue in this case,
Two examples should illustrate the point. A 17-year-old boy finds some X-rated magazines that his father had purchased years earlier and had left in a box in the basement of their home. The 17-year-old confronts his 16-year-old brother with them and asks him whether they are his. The younger brother looks through them and says that they are not. The older brother returns them to the box and admonishes the younger brother not to retrieve them. The older brother would violate
More starkly, as a joke, an adult gives his blind, 17-year-old brother an X-rated magazine and tells him that it is a news magazine that contains an interesting story that he should share with his teacher аt school. The younger brother takes it to school and presents it to his teacher, who promptly confiscates it. The older brother‘s act in furnishing the magazine to his younger brother would violate
As the examples demonstrate, the state is not required to show that the material that
“Of paramount importance to [the Stoneman] holding was the fact that child abuse is a harm that properly is subject to government proscription and that such abuse necessarily
had to occur in order to produce the expressive conduct in question.”
Vannatta v. Keisling, 324 Or 514, 538, 931 P2d 770 (1997) (emphasis in original). Here, furnishing to children the expressive materials covered by
The last time that this case was before us, four members of the court wrote opinions on the constitutionality of
The dissents rely for their conclusion on a body of law that prohibited the dissemination of certain sexually explicit or obscene material to anyone. That body of law developed over a 150-year period from the early eighteenth century through the adoption of our constitution. It sought to control sexual attitudes and behavior by controlling access to expressive materials that depicted or described sexual activity. It developed as an outgrowth of a body of law on seditious libel and blasphemy that sought to control public attitudes and behavior toward government and religious institutions by controlling access to information that was inconsistent with the views of those institutions.3
The Supreme Court considered that body of law in State v. Henry, 302 Or 510, 514, 732 P2d 9 (1987), to determine whether it constituted a well-established historical exception on which the state could rely to uphold a law that prohibited the dissemination of certain sexually explicit material to anyone, adults and children alike. The court held
At bottom, the law on obscene libel is not law that involved a conventional crime. It is law that is indistinguishable in its character from that of seditious and criminal libel. That entire body of law sought to restrict expression in order to control ideas and beliefs and the behavior that might result from them. The Supreme Court has concluded in Robertson, Henry, and Wheeler v. Green, 286 Or 99, 117-19,
Finally, as I explained in my first concurrence in this case,6 a conclusion that
EDMONDS, J., dissenting.
Defendant is charged under
I write to share some additional commonsense observations about what history tells us regarding how the people of the State of Oregon would have regarded defendant‘s conduct at the time of the adoption of the constitution.
“(1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, the person furnishes to a minor:
“(a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sadomasochistic abuse, sexual conduct or sexual excitement[.]”
“(3) ‘Furnishes’ means to sell, give, rent, loan or otherwise provide.
“*****
“(5) ‘Nudity’ means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple only or the nipple and areola only are covered.
“*****
“(9) ‘Sadomasochistic abuse’ means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.
“(10) ‘Sexual conduct’ means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratificаtion.
“(11) ‘Sexual excitement’ means the condition of human male or female genitals or the breasts of the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity.”
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.”
The original Oregon Constitution, of which section 8 is a part, was written by a convention of 60 delegates chosen from the citizens of the territory. The convention met in August 1857. Thereafter, it was approved by a vote of the people. On February 14, 1859, Congress acted to admit Oregon into the Union, and on that date, section 8 went into effect. Section 8
“forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.” State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982).
The “bottom line” question in this case is whether the people of this state in 1859 would have considered the proscription of
The methodology in analyzing section 8 issues can be found in cases like State v. Moyle, 299 Or 691, 705 P2d 740 (1985). In deciding whether a statute prohibiting harassment
“whose very enactment was forbidden by Article I, section 8[.] * * * Even when a law by its terms restricts the right to speak, we have held that it does not, on its face, violate our state constitutional guarantee if the crime was one well established at the time our constitutional guarantee was enacted and demonstrably outside the aims of the guarantee of freedom of expression, or if the statute as written proscribes some effect, rather than communication itself. State v. Robertson, [ ] 293 Or at 412, 416; State v. Garcias, 296 Or 688, 689, 679 P2d 1354 (1984).” Moyle, 299 Or at 695-96 (emphasis added).
After concluding that the law in question did not fall within a historical exception, the Moyle court then turned to the focus of the law and inquired whether it was a law directed against speech or at preventing a forbidden effect. Id. at 697. Having concluded that the law focused on effect rather than speech itself, the court next posed the question of whether the effect of the law could be proscribed under section 8. Id. at 699. It noted that when a statute defines a crime that results only from expression, its potential reach must be “scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth’ by a narrowing construction. Id. at 702 (quoting Robertson, 293 Or at 418).
Under an appropriate analysis, the lead opinion‘s overbreadth analysis is never reached if the language of
Judge Landau‘s research demonstrates unequivocally that restrictions on expression that were harmful to children or that “tended to corrupt the morals of youth” were uniformly believed by nineteenth-century Americans not to
Moreover, it is undeniable that both the territorial legislature and the Oregon Legislature during the time of the adoption of section 8 were concerned about the furnishing of materials that were manifestly intended to corrupt the morals of youth as were numerous other state legislatures. To assert that such a concern was not “conventional” or that section 8 was intended to eliminate such restrictions is to controvert established historical fact. Chapter XI, section 10, of the Statutes of Oregon 1854, pp 210-11, and the same provision of the Statutes of Oregon 1855, Chapter XI, section 10, p 234 (Deady 1855), are illustrative of how such concerns were embodied by statutes. They provided:
“If any person shall import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures or other descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of loan, sale, exhibition or circulation, or with intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six, nor less than three months, or by а fine not more than three hundred dollars, nor less than fifty dollars.”
The identical statute was enacted by the state legislature in 1864 after the adoption of the constitution.
The reach of
The question becomes: What would a modern day statute reflecting the historical exception under section 8 prohibiting the furnishing of materials that manifestly tend to corrupt the morals of youth look like? An examination of the texts of the territorial and 1864 statutes provide clues: (1) The statute would have to prohibit expression directed toward minors; (2) The statute would have to proscribe materials that “manifestly” tend to corrupt the morals of minors; (3) The statute would have to be restricted to expression that fell within the public‘s understanding of the word “obscene.”
The next step is to compare the elements of
The final element involves a comparison between the element of “obscenity” in the earlier statutes and the definitions of “sadomasochistic abuse,” “sexual conduct” and “sexual excitement.” The word “obscene” is a word that has caused courts much difficulty in defining. Apparently, the majority seizes on that difficulty as an alternative means to reject the assertion that a historical exception for furnishing pornography to children exists. But it does not necessarily follow that, because some definitions of historical obscenity lack certainty, all definitions are unascertainable. Rather, each case needs to be decided within its own historical context. For instance, the fact that the Supreme Court in Henry ruled that restrictions on obscene expression involving consenting adults were not well established at the time of adoрtion of section 8 says little about the nature of restrictions on expression to children. This case requires us to reason anew about what kind of understanding the people of the State of Oregon would have had in mind about the meaning of the word “obscene” insofar as children are concerned when they voted for the adoption of the constitution. Whatever else were the parameters of the meaning of the word “obscene” at that time, it cannot be reasonably debated from the historical information that a nineteenth-century elector in Oregon would have considered depictions of human masturbation, sexual intercourse, the touching of genitals or intimate sexual body parts, sexual stimulation and sexual flagellation or torture to be included within its meaning. Consequently, all of the core elements of the early statutes are wholly contained within the prohibitions of
The above comparison leads me to ask rhetorically: If
I dissent.
LANDAU, P. J., dissenting.
At issue in this case is the constitutionality of
I believe that the prohibitions contained in
I. BACKGROUND
This appeal finds its origins in defendant‘s demurrer to his indictment for violating
On appeal, defendant argued that the statute violated
Following the method of analysis dictated by State v. Robertson, 293 Or 402, 412-18, 649 P2d 569 (1982), and its progeny, we began by concluding that the statute prohibited activity that involves speech or expression and that the focus of the statute was on expression itself, not merely a harmful effect of the expression. We then concluded that the statutory limitations on expression were not wholly contained within a historical exception to the protections of
Meanwhile, the Supreme Court issued its opinion in State v. Stoneman, 323 Or 536, 920 P2d 535 (1996). At issue in that case was the constitutionality of ORS 163.680 (1987), which made it unlawful for any person
The court began by describing an analytical process slightly different from the one that we applied in our original opinion in this case:
“We begin *** by deciding whether ORS 163.680 (1987) was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ A statute that is so written is invalid on its face, unless it fits ‘wholly’ within some ‘historical exception.’
“If the enactment‘s restraint on speech or communication lies outside an historical exception, then a further inquiry is made--whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself. If the actual focus of the enactment is on such a harm, the legislation may survive scrutiny under Article I, section 8. If such a statute expressly prohibits certain forms of expression, it must survive an overbreadth inquiry before it can be found constitutional.
“Even statutes that do not by their terms implicate speech or expression-i.e., statutes that are by their terms aimed only at ‘effects’ - also are subject to challenge under Article I, section 8, on vagueness grounds or on the ground that the statute‘s reach, as applied to defendant, extends to privileged expression. Finally, and even if a restraint on freedom of speech or expression cannot be justified under any of the foregoing considerations, it may nonetheless be justified under the ‘incompatibility exception’ to Article I, section 8.”
Stoneman, 323 Or at 543-44 (emphasis in original; footnote and citations omitted).
In setting forth the foregoing analytical framework, the court rejected the state‘s proposal that, because of the importance of protecting children, a different method of analysis was appropriate in evaluating the constitutionality of statutes prohibiting child pornography. The state based
“Nothing in this opinion * * * should be construed to reflect on the continuing vitality of the implication in Henry that the protection of children may constitute an historical exception when assessing the scope of Article I, section 8, thereby removing any state constitutional bar to a statute that is directed at the content of speech but that also falls within the ambit of the exception.”
Stoneman, 323 Or at 543 n 7 (citation omitted).
The court then turned to the statute at issue. It first concluded that ORS 163.680 (1987) prohibited commerce in certain forms of expression. Accordingly, it turned to the question whether the statute was wholly contained within a historical exception to
The court rejected that argument. Stoneman, 323 Or at 545. The court first cited its earlier opinion in Henry, in which it rejected the same territorial statute as the basis for finding a historical exception for a modern statute that prohibited the dissemination of “obscene” material, because the territorial statute contained no definition of “obscene” and was directed primarily to the protection of youth. It then referred to this court‘s opinion in Stoneman, in which we also rejected the territorial statute as a historical exception for other reasons, namely, that the territorial statute prohibited only distribution to youth while the statute at issue prohibited purchase, and that the territorial statute was aimed at
Having concluded that the statute was not wholly contained within a historical exception to
Following the issuance of the Stoneman decision, the Supreme Court vacated our decision in this case and remanded for reconsideration in light of that decision. On reconsideration, a majority of this court1 holds that Stoneman compels the conclusion that
Interestingly, although the Supreme Court remanded for reconsideration in light of Stoneman, the majority neglects to apply the analysis that the Supreme Court applied in that case. In particular, the majority omits any consideration of whether
The majority offers two reasons for its omission of the historical exception analysis. First, it contends that the issue is beyond the scope of the Supreme Court‘s remand. According to the majority, the Supreme Court intended that we reconsider this case in light of only a discrete portion of the Stoneman decision, the portion dealing with the court‘s effects analysis. 168 Or App at 135. I have searched the
Second, the majority complains that, in any event, it is simply inappropriate to engage in the historical exceptions analysis before determining whether
“We begin that exercise by deciding whether [the challenged statute] was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ A statute that is so written is invalid on its face, unless it fits ‘wholly’ within some ‘historical exception.’
“If the enactment‘s restraint on speech or communication lies outside an historical exception, then a further inquiry is made--whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.”
Stoneman, 323 Or at 543 (emphasis added; citations omitted; footnote omitted).
Indeed, what I have described as the proper order of analysis not only is what the court said to do, but also is what the court actually did, in Stoneman. As I have described, in
The majority complains that what the court said and did in that case are difficult to square with what the court has said and done in other cases, and with that observation I am inclined to agree. But I leave it to the Supreme Court to retract, explain, or adhere to what it said and did in Stoneman. Meanwhile, our charge is to reconsider this case in light of Stoneman--all of Stoneman. And that is what I attempt to do in this opinion.2
In any event, the majority‘s complaint about the order of the analysis is academic. Even assuming that the order is as the majority describes it, if the focus of
In this case,
II. THE ROBERTSON HISTORICAL EXCEPTION ANALYSIS: METHODOLOGY
Historical exception analysis under
“Article I, section 8, * * * forbids lawmakers to pass any law ‘restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever,’ beyond providing a remedy for any person injured by the ‘abuse’ of this right. This forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.”
Robertson, 293 Or at 412 (emphasis added; footnote omitted). The analysis thus requires us to answer three questions: (1) Was there a restriction on speech that was well established during the relevant historical period? (2) If so, was
Robertson did not provide much in the way of explanation of or rationale for its historical exception analysis. In particular, the court did not explain what it meant by a “well-established” historical exception and what legal principle enables us to distinguish between a merely “established” historical exception as opposed to a “well-established” one. Nor did the court provide any explanation as to how it arrived at its pronouncement, in dictum, that perjury, solicitation, verbal assistance in crime, and other restraints constitute historical exceptions to the protective reach of
To begin with, there is the question of what time period is the appropriate focus of the historical exception analysis. Robertson mentions the time “when the first American guarantees of freedom of expression were adopted,” referring to the 1790s. In the next phrase, however, it states that we are to determine whether those guarantees “then or in 1859” were intended to reach historically excepted crimes. I must confess that I do not know why the intentions of the framers of the federal constitution are pertinent to the interpretation of
Third, there is the question of what the court means by “well established.” The meaning of the term is not exactly self-evident. And the Supreme Court has never offered an explanation of its intended definition. I do not take the term to be without meaningful content, however. Cf., William R. Long, Requiem For Robertson: The Life and Death of a Free-Speech Framework in Oregon, 34 Will L Rev 101, 135 (1998) (a “well-established” historical exception “means whatever the court perceives it to mean” in each case). In particular, I
I suggest instead that what constitutes a “well established” exception must be defined in terms of the object of the historical exception analysis. As I understand it, the object of the Robertson historical exception analysis is to ascertain the intentions of the framers of the Oregon Constitution. See Robertson, 293 Or at 412 (characterizing the ultimate objective of historical exception analysis as determining whether the guarantees of freedom of expression “demonstrably were not intended to reach” previously well-established forms of state regulation (emphasis added)); see also Henry, 302 Or at 521 (emphasizing the importance of demonstrating “that the guarantees of freedom of expression were not intended to replace the earlier restrictions” (emphasis added)). Unfortunately, the framers left little in the way of a historical record of what they intended by enacting the free speech protections described in
In Moyle, for example, the court examined the historical record pertaining to the regulation of harassment both in England and in eаrly nineteenth-century America to determine whether such regulation constituted a historical exception. The court noted that, although the English Waltham Black Act of 1723, made it a capital offense to, among other things, send unsigned or fictitiously signed letters threatening to commit a crime, that statute was repealed in 1823. Moyle, 299 Or at 696. Moreover, the court noted, although by 1859 seven American states had statutes in effect prohibiting nonextortionate written threats to commit
Finally, there is the question of what sort of “restraint” may constitute a historical exception. Robertson listed several possibilities as examples: “perjury, solicitation or verbal assistance in crime, some forms of theft, forgery, and fraud and their contemporary variants.” 293 Or at 412. I understand the list to be indicative and not exhaustive. After all, Robertson itself characterized the list as “[e]xamples” only. Id. Subsequent decisions in which the Supreme Court has examined restraints not included in the list enumerated in Robertson bear out the point. See, e.g., Moser, 315 Or at 376-78 (telemarketing solicitation); Henry, 302 Or at 515-23 (obscenity); Moyle, 299 Or at 696 (harassment).
Moreover, I do not take the list itself to suggest any limitations on the nature of the restraints that may constitute historical exceptions to the reach of
“It conceptually makes no sense to say that certain speech was intended by the founders to be exempt from
Article I, section 8 , for criminal purposes but not for others. It is tantamount to saying that the founders intended to allow people to be jailed for their fraud but not to be fined for the same conduct.”
Id. at 702. We also noted that the Supreme Court likewise has commented that ” ‘[t]he nature of the prohibition, either civil or criminal, is immaterial’ to the prohibition against restrictions on free speech.” Id. (quoting City of Hillsboro v. Purcell, 306 Or 547, 553, 761 P2d 510 (1988)).
In short, then, the historical exception analysis requires courts to determine whether there existed a regulation of speech during the period from the late eighteenth to the mid-nineteenth centuries that was sufficiently well established to allow us to infer that the framers of the Oregon Constitution would have been aware of it, whether there is any evidence that the framers intended
III. THE ROBERTSON HISTORICAL EXCEPTION ANALYSIS: APPLICATION
A. The Existence of a “Well-Established” Historical Exception
With the foregoing principles in mind, I turn to the historical record concerning government regulation of the distribution of obscene materials to children. I begin with the observation that governmental regulation of speech is а centuries-old phenomenon, particularly when the prohibited speech is deemed dangerous to the morals of children. To be
1. Regulation of obscenity in England.
The regulation of speech dates back at least to the ancient Greeks. See Martha Alshuler, Origins of the Law of Obscenity, in 2 Technical Report of the Commission on Obscenity and Pornography 65 (1971) (censorship of literary publications dates at least to Greek and Roman times). Plato suggested that poets should be banished from his ideal republic because they taught false ideas that would corrupt the morals of youth. Plato, Republic II, in 1 Dialogues of Plato, 641 (B. Jowett trans., 1937) (“the first thing will be to establish a censorship of the writers of fiction, and let the censors receive any tale of fiction which is good, and reject the bad; and we will desire mothers and nurses to tell their children the authorized ones only“). Indeed, Socrates was killed not merely for his atheism but because he was “a doer of evil, who corrupts the youth” with his teachings. Plato, Apology, in 1 Dialogues of Plato, 407 (B. Jowett trans., 1937).
The roots of the modern regulation of obscenity, however, lay in the more recent history of English and American law. With the introduction of printing to England in the fifteenth century came royal censorship through a licensing system operated by the Star Chamber and the Stationers Company. See generally, W.S. Holdsworth, Press Control and Copyright in the 16th and 17th Centuries, 29 Yale LJ 841 (1921). The early focus of the censors was sedition and heresy, not obscenity, not because the crown lacked the authority to impose such restrictions, but because it was regarded as the domain of ecclesiastical courts. But with the rise of Puritanism in the late sixteenth century came increased attention to the regulation of bawdy books and plays; censorship was no longer limited to works of seditious or heretical
With the Restoration in 1660 came a reaction to repressive Puritanism. Religious energies flagged, and a more secularized—if not licentious—world view became increasingly predominant. 3 Oxford History of Britain, 138-42 (Kenneth O. Morgan ed., 1992); Norman St. John-Stevas, Obscenity and the Law, 15 (1956). Censorship of books returned to its original, more limited purposes. It was in that context that what is commonly regarded as the first reported judicial decision on obscenity arose.
In 1663, Sir Charles Sedley, an “intimate of King Charles II ‘as famous for his wit as he was for the profligacy of his life,’ ” Leo M. Alpert, Judicial Censorship of Obscene Literature, 52 Harv L Rev 40, 41 (quoting 8 Cambridge History of English Literature, 158 (1912)), engaged in a drinking spree at “The Cock,” a local tavern. He and two companions became drunk, stripped off their clothes, climbed a balcony overlooking Covent Garden and hurled both profanities and bottles filled with an “offensive liquor,“—that is, urine—at the public below. A minor riot ensued, ultimately resulting in the arrest and prosecution of Sedley:
“He was fined 2000 mark, committed without bail for a week, and bound to his good behavior for a year, on his confession of information against him, for shewing himself naked on a balcony, and throwing down bottles (pist in) vi & armis among the people in Covent Garden, contra pacem and to the scandal of the Government.”
Le Roy v. Sr. Charles Sedley, 83 Eng Rep 1146 (1663).6
Meanwhile, the sixteenth-century legislation requiring the licensing of publications expired in 1695. Parliament declined to reauthorize the legislation, mainly because the large number of printers, the spread of literacy, and the increasing рublic demand for literature made the enforcement of the law impossible. With the loosening of publication controls, writers saw the publication of obscenity as a means
At first—and notwithstanding Sedley—the courts were reluctant. In 1708, in Queen v. Read, 88 Eng Rep 953 (1708), the author of The Fifteen Plagues of a Maidenhead was charged with obscenity. The court held that, if the publication of the book was punishable, it was in the “Spiritual Court,” that is, in the ecclesiastical courts. Not long after, however, in Rex v. Curl, 93 Eng Rep 849 (1727), the court overruled Read and, citing Sedley as precedent, held that the author of Venus in the Cloister or the Nun in Her Smock was subject to indictment for a common-law crime of obscenity. The court reasoned that, although obscenity traditionally was thought to be an offense against religion, morality and religion were legitimate subjects of concern at common law: “Now morality is a fundamental part of religion and therefore whatever strikes against that, must for the same reason be an offence against the common law.” Id.; see also 4 Blackstone‘s Commentaries on the Law of England, 64 (Wendell ed 1859) (“lewdness” and “public indecency” are indictable offenses at common law to protect public morality).
A handful of other obscenity cases have been reported in the late eighteenth and early nineteenth centuries. Most held that obscenity is indeed an indictable offense at common law, but because it was regarded as antireligious. E.g., King v. Gallard, 25 Eng Rep 547 (1733) (upholding prosecution for “running in the common way, naked down to the waist, the defendant being a woman“); Rex v. Wilkes, 98 Eng Rep 327 (1770) (upholding prosecution for obscenity and “impious libel” for publication of erotic poetry). Such was not always the case, however. In Rex v. Crunden, 170 Eng Rep 1091 (1809), for example, the court upheld a prosecution for bathing nude in the sight of homes, without reference to whether the practice was an offense against religion.7
2. Regulation of obscenity in America.
In early colonial America, the regulation of obscenity did not generate much interest. That is perhaps not surprising. Early colonists lived hard lives characterized by much physical labor and little leisure time, and had little access to nonbiblical literary works of any sort, much less those that would arouse controversy. That is not to say that early colonial America was an Eden of free expression. In Puritan Massachusetts, in particular, speech was heavily regulated. The colony established a general censorship system that, among other things, permitted only one person to have a printing press in the entire city of Boston. Punishment was severe; until 1697 blasphemy was a capital offense, and after that could be punished by boring the blasphemer‘s tongue with a
As the colonists became more prosperous, they acquired both the time and the means to acquire leisure goods from England. This was, it should be recalled, during the time that England produced Sir Charles Sedley and the Fifteen Plagues of a Maidenhead. Massachusetts reacted with the enactment of the first American obscenity statute in 1711:
“Whereas evil communications, wicked, profane, impure, filthy and obscene songs, composures, writings or prints do corrupt the mind, and are incentives to all manner of impieties and debaucheries, more especially digested, composed or uttered in imitation or in mimicking of preaching, or any other part of divine worship, every person or persons offending in any of the particulars aforementioned shall be punished by fine to Her Majesty not exceeding twenty pounds or by standing on the pillory once or oftener, with an inscription of his crime in capital letters affixed over his head, according to the discretion of the justice in quarter sessions.”
Ancient Charter, Colony Laws and Province Laws of Massachusetts Bay (1814), cited in Alschuler, Origins of the Law of Obscenity at 74. Interestingly, that statute predated England‘s Curl decision by more than a decade. See Alschuler, Origins of the Law of Obscenity at 75 (“Massachusetts had by statute made obscenity a crime 16 years before England found it an offense at common law, and the Massachusetts offense was more separate from religion than the English offense created in 1727.“).
Other colonies did not follow suit. They did enact statutes regulating profanity or blasphemy, but not obscenity. The reasons for, and the significance of, the failure of other prerevolutionary colonies to enact statutes criminalizing obscenity have been debated. Some have suggested that the colonists thought that the English common law, which by 1727 had recognized the offense of obscene libel, sufficed. Others have suggested that the colonists thought that the regulation of obscenity was a matter of religious, not secular governmental, concern. See generally Morris L. Ernst & Alan
But the fact that colonists chose not to regulate obscenity does not mean that they thought the matter beyond the authority of the state to regulate. That much is made certain by the fact that, during the critical period of the first half of the nineteenth century, the states exercised that authority to such an extent that by the middle of the century “the production and distribution of obscene materials was a crime throughout much of the United States.” United States Department of Justice, Attorney General‘s Commission on Pornography, 1 Final Report, 243 (1986); see also Daniel Barnhart, The Oregon Bill of Rights and Obscenity: How Jurisprudence Confounded Constitutional History, Comment, 70 Or L Rev 907, 938-39 (1991) (“By 1860, most of the 33 states had enacted statutes restricting the publication or distribution of obscenity.“).
Precisely what precipitated this legislation is not certain, but the prevailing view seems to be that it coincided with the creation of public schools and a concern for the proper education of children. As one leading authority explains:
“[T]he new interest in legal control of obscenity coincided with a steady increase in literacy. The first public high school in the United States opened in 1820. There was as yet no compulsory education, but the move for free universal education was gaining steady support. State anti-obscenity statutes typically emphasized а purpose of protecting youth.”
Alschuler, Origins of the Law of Obscenity at 76. Lawrence Friedman offers a similar explanation of the new nineteenth-century interest in the regulation of obscenity and vice:
“This was another reason why vice laws needed to be passed, even if such laws were hard to enforce. Illegal vice would have to hide its face, and young folks would be less likely to come within its orbit of corruption. Obscenity laws, for example, were aimed at words and pictures that might ‘corrupt’ the ‘morals of youth.’ ”
Lawrence M. Friedman, Crime and Punishment in American History, 131 (1993); see also Morris L. Ernst & Alan U.
The concern for the protection of youth from the potential ravages of obscenity already had found expression in judicial opinions recognizing the crime of obscene libel at common law. The Pennsylvania Supreme Court‘s decision in Commonwealth v. Sharpless, 2 Serg & Rawle 91 (Pa 1815), is perhaps the best-known example. In that case, the defendant was indicted for exhibiting a painting that depicted “a man in obscene, impudent and indecent posture with a woman.” The defendant argued that privately showing the picture was not an indictable offense, particularly because he had shown the picture in a private room. The court upheld the indictment. Writing in the seriatim format of the day, the Chief Judge explained that merely because the defendant showed the painting in a private room did not save him from prosecution:
“The law is not to be evaded by an artifice of that kind; if the privacy of the room was a protection, all the youth of the city might be corrupted, by taking them, one by one, into a chamber, and then inflaming their passions by the exhibition of lascivious pictures.”
Id. at 102. In a separate opinion, Justice Yeates further explained that:
“The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences, and in such instances, courts of justice are, or ought to be, the schools of morals.”
Id. 103 (emphasis added). In each case, the focus of concern was the protection of children from the effects of exposure to the obscene material.
The Massachusetts Supreme Court‘s 1821 decision in Commonwealth v. Holmes, 17 Mass 336 (1821), supplies another example. In that case, the court upheld the conviction of the publisher of Memoirs of a Woman of Pleasure for
“a scandalous and evil-disposed person, and contriving, devising and intending the morals as well of youth as of other good citizens of said commonwealth to debauch and corrupt and to raise and create in their minds inordinate and lustful desires.”
Id. at 336.
The concern for the morals of children frequently was stated explicitly in early nineteenth-century obscenity statutes. The 1835 Massachusetts obscenity law is typical. It provided:
“If any person shall import, print, publish, sell or distribute any book, or any pamphlet, ballad, printed paper, or other thing, containing obscene language, or obscene prints, pictures, figures, or descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school, or place of education, or shall buy, procure, receive or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of sale, exhibition, loan, or circulation, or with intent to introduce the same into any family, school or place of education, hе shall be punished by imprisonment in the county jail, not more than two years, and a fine not exceeding one thousand dollars.”
Other states enacted even broader obscenity statutes, not limited to the protection of the morals of youth. In 1821, for example the State of Vermont made it a crime punishable by a $200 fine to “print, publish, or vend any lewd or obscene book or print.”
The federal government, too, enacted legislation directed at limiting the distribution of obscene materials. In
Thus, in the first half of the nineteenth century, both the states and Congress openly assumed their authority to regulate obscenity. See Lawrence M. Friedman, Crime and Punishment in American History at 350 (“In the nineteenth century, it was taken for granted that states and cities could put pornography under the ban and punish people who made it or sold it.“). I have searched the reported cases in vain for a single decision in which the authority of the federаl, state, or local governments to regulate obscenity was not upheld. Indeed, it is difficult to find a decision in which such authority was challenged at all, much less on constitutional grounds. In one 1838 case, a defendant to a Massachusetts obscenity prosecution suggested that the state lacked authority to regulate obscene libel and blasphemy. The court‘s response is revealing:
“It seems now to be somewhat late to call in question the constitutionality of a law, which has been enacted more than half a century, which has been repeatedly enforced, and the validity of which, it is believed, until this prosecution, has never been doubted, though there have been many prosecutions and convictions under it.”
Commonwealth v. Kneeland, 37 Mass 206, 217 (1838).
Oregon‘s pioneers apparently shared those convictions. In 1853, following the famed battle of the Iowa “blue books,” the Territorial Legislature authorized the drafting of a new, “full and complete” territorial code. The drafting responsibilities fell to a commission headed by James K. Kelly. The common practice in western territories was to borrow from existing statutes in other states. See generally Lawrence M. Friedman, A History of American Law, 139 (1973) (observing that “many territorial statutes were the
“If any person shall import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of loan, sale, exhibition or circulation, or with the intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six nor less than three months, or by a fine not more than three hundred, nor less than fifty dollars.”
At least two things bear emphasis with respect to the 1853 territorial statute. First, the obscenity provision did not slip in accidentally in the process of incorporating other provisions of the statutes of other jurisdictions. It is plain that the Kelly Commission and the Territorial Legislature made a conscious decision to enact an obscenity statute and to join the majority of other states that had done so to date. Second, the particular statute that it enacted was borrowed from those with a narrower focus on protecting the morals of children. That, too, cannot have been accidental. Other models existed that more broadly condemned obscenity generally. Oregon‘s territorial statute prohibited the distribution of obscene materials “manifestly tending to the corruption of youth.”
In Sharpless, for example, the defendant was charged with showing a painting of “a man in obscene, impudent and indecent posture with a woman.” 2 Serg & Rawle at 91-2. The court expressed concern that the painting would arouse lustful feelings. There can be no doubt about what the man and the woman in the picture were doing. Similarly, in Barker v. Commonwealth, 19 Pa 412, 413 (1852), the defendant was indicted for publicly describing “men and women in obscene and indecent positions *** with intention ‘to debauch, debase and corrupt the morals of youth.’ ” Obviously, what the defendant had been describing was sex. In Bell v. State, 31 Tenn (1 Swan) 42 (1851), the defendant was convicted of “the utterance of certain grossly obscene words, in public.” The “grossly obscene” utterance was that the defendant had described “acts of criminal intercourse” with the daughters of a local citizen. Id. at 43. In Commonwealth v. Tarbox, 55 Mass (1 Cush) 66, 67 (1848), the defendant was charged with the publication of obscene materials, which included an advertisement for an “instrument for * * * the prevention of conception.”
Indeed, numerous cases demonstrate prosecutions for obscene behavior based on public nudity alone. In State v. Roper, 18 NC 208 (1835), for example, the defendant was charged with indecent exposure. The court held that “[a] public exposure of the naked person is among the most offensive of those outrages on decency and public morality.” Id. at 209.
In my view, the foregoing historical materials leave no room for doubt that, by 1859, it was “well established” that distributing obscene materials to children was not constitutionally protected speech, that, to the contrary, imposing criminal penalties for such conduct was widely assumed to be—indeed, adjudicated to be—the legitimate prerogative of the state and federal governments. At English common law, obscene libel had been a crime for nearly two centuries and had been the subject of parliamentary prohibition. In America, where the states absorbed the English common law into the fabric of their distinct legal traditions, the courts followed suit, emphasizing the importance of protecting the morals of children. The legislative assemblies of the states did likewise, enacting numerous statutes criminalizing the distribution of obscene materials tending to corrupt the morals of youth.
It has been noted that, although there existed a substantial body of law authorizing the punishment of the distribution of obscene materials, those laws frequently were not enforced. See, e.g., Frederick F. Schauer, The Law of Obscenity at 10 (“The years prior to the Civil War witnessed a proliferation of obscenity and lewdness statutes, but there were still few prosecutions.“). In fact, the historical record shows that, in the period from the late eighteenth to the mid-nineteenth centuries, quite a bit of literature that would have been considered bawdy, lewd, or obscene was in wide circulation.9 But all that is beside the point for at least two
B. Whether Article I, Section 8, Was Intended to Eliminate the Regulation of Distributing Obscene Materials to Children
Nothing in the language of
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
To be sure, the opening clause of
I can find no evidence that the framers of the Oregon Constitution intended to constrain the authority of the state to regulate the distribution of obscene materials to children. Nothing in the available records of the 1857 Constitutional Convention remotely suggests even the possibility that the framers intended the adoption of the Oregon Constitution to have that effect.
What I do find in the historical record is the fact that, shortly after the adoption of the constitution, the Oregon Legislature re-enacted the 1853 territorial obscenity statute as part of the state‘s first criminal code.
Such a notion also is difficult to square with the development of free expression generally. No one seriously suggested that a state or federal government lacked the constitutional authority to regulate the distribution of obscene materials generally, much less to children, until the early twentieth century. See, generally, Bradley C. Bobertz, The Brandeis Gambit: The Making of America‘s “First Freedom,” 1909-31, 114 William & Mary L Rev 557, 559 (1999) (“At the end of the nineteenth century, the most remarkable aspect of our
To the contrary, following the Civil War, the regulation of obscenity became even more intensive, as other states enacted obscenity laws, see, e.g.,
Once again, the authority of the state and federal governments to engage in this concerted enforcement activity was taken for granted. There was a challenge to the authority of Congress to enact the Comstock Act. It was, however, given short shrift. In Ex Parte Jackson, 96 US 727, 24 L Ed 877 (1877), the United States Supreme Court treated the argument thusly:
“All that Congress meant by this act was, that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished. * * * The only question for our determination relates to the constitutionality of the act; and of that we have no doubt.”
Id. at 736-37.
To suggest that Oregon‘s framers understood that the effect of enacting
There remains the question whether the challenged statute is “wholly contained” within the historical exception. Within that broader question there also lurks a more narrow, but no less important one, concerning the impact of prior Supreme Court decisions regarding the extent to which there exists a historical exception for distributing obscene materials to children. The Supreme Court‘s decisions in Henry and Stoneman, in particular, require careful analysis, for in those cases the court rejected the contention that there was a historical exception for obscenity generally. In a nutshell, I conclude that
The 1853 territorial statute provided:
“If any person shall import, print, publish, sell оr distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of sale, exhibition or circulation, or with the intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six nor less than three months, or by a fine not more than three hundred, nor less than fifty dollars.”
The focus of the statute is on the distribution of “obscene” materials to children. Indeed, the statute broadly prohibits introducing such materials to families, schools, or places of education if they “manifestly tend[ ] to the corruption of the morals of youth.”
That
In this case, the “initial principle” that is illustrated by the 1853 territorial statute is the authority of the state to regulate the distribution of obscene material to children. Even assuming for the sake of the argument that
The foregoing point is critical to a proper understanding of the precedential impact of the Supreme Court‘s decisions in Henry and Stoneman. In Henry, the state argued that the 1853 territorial statute constituted a historical exception for the regulation of obscenity generally. The court rejected the argument. The court began by observing that, by itself, a statute is not necessarily sufficient to establish a historical exception: “[T]he constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal rеstraints on one or another form of speech or writing.” Henry, 302 Or at 521. The court emphasized that the regulation of speech must have been sufficiently well established that the court can safely conclude “that the guarantees of freedom of expression were not intended to replace the earlier restrictions.” Id. The court further observed that a review of late eighteenth and early nineteenth-century history showed little in the way of a well-established tradition of state regulation. The state‘s burden, the court held, would be difficult, indeed.
The court then noted that the territorial statute, in any event, did not suffice, for two reasons. First, the court observed that the territorial statute contained no definition of “obscene.” Second, the court observed that the statute “was directed primarily to the protection of youth.” Id. at 522. Indeed, more than once, the court emphasized that the fact that the territorial statute was enacted “only to protect the morals of youth in this state” led it to conclude that “no broad or all-encompassing historical exception from the guarantees of free expression was ever intended.” Id. at 523.
The court‘s decision in Henry thus was a narrow one. It rejected the state‘s argument that there was a well-established historical exception for the regulation of obscenity generally. Whether the court was correct in that regard certainly is debatable, particularly in light of the foregoing historical record of early nineteenth-century regulation of obscenity, which the court simply did not acknowledge. But the correctness of Henry is beside the point. What is important is the fact that Henry in no way forecloses us from now recognizing a narrower historical exception for the regulation of the distribution of obscene materials to children, as opposed to recognizing a historical exception for the regulation of obscenity
That Henry was not intended to be read broadly to foreclose the regulation of the distribution of obscene materials to children is borne out by the Supreme Court‘s decision in Stoneman. In that case, once again, the state argued that the 1853 territorial statute constituted a historical exception, this time for the regulation of child pornography,
The Supreme Court agreed with our historical exception analysis:
“We agree with the Court of Appeals majority that, without more, that territorial statute did not sufficiently and clearly establish an historical exception within which the statute under review in the present case could be said ‘wholly’ to fall.”
Stoneman, 323 Or at 545. The court did not go farther than that, however. As in Henry, the court limited its holding in
Henry and Stoneman thus do not preclude us from concluding that, based not merely on the existence of the 1853 territorial statute, but on that and the historical context in which it was enacted, there is a historical exception for the protection of children from the distribution of obscene materials. Indeed, both Henry and Stoneman expressly contemplate that possibility. The courts simply have not been confronted with the issue to date. With this case, we now are.
One issue remains, however. Both in Henry and in Stoneman, the court expressed concern with the fact that, although the territorial statute prohibited the distribution of obscene materials to minors, it did not define what it meant by “obscene.” Henry, 302 Or at 522; Stoneman, 323 Or at 545. The court observed that, without a historical definition of the term, it is difficult to determine the extent to which a modern statute falls wholly within a historical one prohibiting the distribution of “obscene” materials.
My response is in two parts. First, I note that the court did not say that the lack of a definition of obscenity was fatal to the historical exception argument. Otherwise, the court would not have gone on, at some length, to evaluate the other reasons for rejecting the statute in those cases and to caution that it did not consider foreclosed the argument that there might be a historical exception for protecting children from such materials.
Second, I note that, although the lack of a precise historical definition of “obscene” may render it “difficult” to determine in some cases whether a modern statute is wholly contained within a historical one, the fact remains it is not impossible to do so. It bears emphasis that Robertson does
I conclude therefore that there is no impediment to holding that
D. The Lead Opinion‘s Critique12
Although the lead opinion regards my historical exception analysis as unnecessary, it indulges in a thorough and thoughtful critique, which warrants at least a few brief responses. Its first and principal objection to the merits of my historical exception analysis is that it is inconsistent with what the Supreme Court held in Henry. According to the lead opinion, Henry‘s holding is a sweeping condemnation of the idea that there can be any historical exception related to the regulation of obscenity. It ignores what the court itself said in Henry about the scope of its holding, however. In particular, it declines to acknowledge the court‘s caveat that “[w]e do not hold that this form of expression [obscenity], like others, may not be regulated in the interests of unwilling viewers, captive
The lead opinion next complains that, on the merits, my historical exception analysis merely rehashes the same historical record that the Supreme Court examined in Henry. There certainly is substantial overlap in the historical materials that I have cited, particularly those relating to the law before 1790; I make no pretense to having unearthed any startling new historical discoveries.14 But the fact remains that, by its own terms, the Supreme Court limited its historical analysis both in time and scope. I have not merely rehashed the court‘s analysis. I have examined some of the
The lead opinion then focuses its critical attention on my analysis of the question whether, by enacting
The lead opinion also complains that the evidence that I have cited, principally the reenactment of the territorial obscenity statute after the adoption of the constitution, is insufficient and that the sort of “statute counting exercise” in which I have engaged is not what is required in conducting proper historical exceptions analysis. 168 Or App at 142. Of course, the sort of “statute counting exercise” about which it complains is precisely what the Supreme Court does in its own cases. Moyle and Henry exemplify the point. Aside from that, I challenge the lead opinion to explain how it is that courts can answer questions as to the nature of nineteenth-century law without referring to nineteenth-century law.
Finally, and in a related vein, the lead opinion expresses concern that the sort of historical analysis in which I have engaged simply cannot be an appropriate way to determine the scope and meaning of
Having said that, however, the exercise in which I have engaged clearly is required by Robertson and its progeny. And any concern that I or others may harbor as to the
The effect of concluding that a statute wholly falls within a historical exception, as the Supreme Court held in Stoneman, is the removal of “any state constitutional bar to [the] statute that is directed at the content of speech.” Stoneman, 323 Or at 543 n 7. It is, in other words, unnecessary to engage in the overbreadth analysis that the lead opinion conducts.
IV. OTHER ISSUES
Defendant argues that, even if the statute does not violate the state constitution, it does violate the
At trial, defendant‘s sole argument was that, as a consequence of our earlier decisions in Frink and House,
Even assuming that the argument has been preserved, it still is unavailing. Defendant‘s federal constitutional argument consists of a quote from Erznoznik v. City of Jacksonville, 422 US 205, 95 S Ct 2268, 45 L Ed 2d 125 (1975). In that case, the United States Supreme Court struck down a statute that prohibited the showing at a drive-in theater of any movie containing nudity. The Court held that the statute swept too broadly because, among other things, it
Closer to the mark is Ginsberg v. New York, 390 US 629, 88 S Ct 1274, 20 L Ed 2d 195 (1968). At issue in that case was the constitutionality of a New York criminal obscenity statute, that prohibited the sale to minors of depictions of “nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors.” The statute defined “harmful to minors” in a way that was broader than what would have been considered “obscene” for adult viewers. The defendant challenged the authority of the state to prohibit the sale of materials to minors that would not have been obscene to adults. The Court held that the state has an interest ” ‘to protect the welfare of its children,’ and to see that they are ‘safeguarded from abuses’ which might prevent their ‘growth into free and independent well-developed’ citizens.” Id. at 640-41 (quoting Prince v. Massachusetts, 321 US 158, 165, 64 S Ct 438, 88 L Ed 645 (1944)). To sustain the power of the state to prohibit the distribution of certain material to children that is considered harmful “requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.” Ginsberg, 390 US at 641. The Court then concluded that it was not irrational for the legislature to conclude that exposure to “nudity, sexual conduct or sadomasochistic abuse” would be harmful to children. Id. at 643.
This case is not materially different from Ginsberg.
I respectfully dissent.
Edmonds, J., joins in this dissent.
Notes
“(1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, the person furnishes to a minor:
“(a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sadomachistic abuse, sexual conduct or sexual excitement[.]” This is not merely a matter of jurisprudential fastidiousness. I joined the majority in Maynard I in concluding that
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for abuse of this right.” Moreover, even when sexual stimulation or arousal occurs as a result of furnishing sexually explicit material to children, it is not clear whether, in light of current law, that necessarily causes or could cause harm. Assume that two sexually active 17-year-olds are in a committed relationship. They commit no crime and violate no law by engaging in sexual activity together, and there is no prohibition against their use of sexually explicit language to stimulate or arouse each other sexually. However, if the girl gives her boyfriend photographs that she took of the two of them engaged in sexual activity, a sound recording of them engaged in that activity, or a sexually explicit note, she would violate the law against furnishing sexually explicit expressive material to children.
Read, 88 Eng Rep at 953 (footnotes omitted). Hence, as of 1708, seditious and profane expression could be penalized by the government, but obscene expression could not. The court reversed itself 19 years later in Rex v. Curl, 2 Strange 788, 93 Eng Rep 849 (KB 1727), adding obscene libel to the existing restrictions on expression. Curl was followed by Rex v. Wilkes, 4 Burrow 2527, 98 Eng Rep 327 (KB 1770), in which John Wilkes, an opponent of King George III and his government‘s policies in North America, was convicted of publishing “a seditious and scandalous libel” (The North Briton) and an “obscene and impious libel” (Essay on Woman). After the United States was established, a number of states and the federal government built on the English common law of obscene libel through court decisions and statutes. Historical journals of the Oregon pioneers and promotional materials often referred to the Oregon territory as the “Garden of Eden” in the 1840s and 1850s. In fact, in Robertson itself, when the court reiterated the substance of its historical exception analysis, it referred to demonstrating the existence of the exception “when Oregon‘s Bill of Rights was adopted in 1859,” without reference to the framers of the federal constitution 70 years earlier. Robertson, 293 Or at 433.“A crime that shakes religion, as profaneness on the stage, &c. is indictable; but writing an obscene book, as that intitled [sic], ‘The Fifteen Plagues of a Maidenhead,’ is not indictable, but punishable only in the Spiritual Court.”
“(1) It is unlawful for any person to pay or give anything of value to observe sexually explicit conduct by a child known by the person to be under 18 years of age, or to pay or give anything of value to obtain or view a photograph, motion picture, video tape or other visual reproduction of sexually explicit conduct by a child under 18 years of age.
“(2) Violation of subsection (1) of this section is a Class C felony.” Judge Landau questions the basis for the distinction that the Supreme Court drew in Robertson between conventional and other crimes involving expression. See 168 Or App at 175-76. The Supreme Court recognized the distinction because there is a difference between laws that restrict expression to prevent its use as an instrument to cause identifiable harm and those that restrict expression to control ideas and beliefs. The court concluded that Article I, section 8, was not intended to displace well-established laws that served the former purpose but was intended to displace laws that served the latter purpose. See, e.g., Robertson, 293 Or at 433 & n 28; Moyle, 299 Or at 696. The law on obscene libel is an example of the latter. Our task as an intermediate appellate court is to apply the distinction, not to explain why it is untenable. After describing the historical exception analysis generally, Robertson later reiterated that Article I, section 8, was not meant to immunize all speech from state regulation in all respects. As an example of regulation not prohibited by Article I, section 8, the court noted: “[O]ne of these is the use of words in the course of what indisputably would have been a conventional crime when Oregon‘s Bill of Rights was adopted in 1859.” Robertson, 293 Or at 433 (emphasis added).
” ‘Sexual conduct’ means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”
We considered only the “human masturbation” and “sexual intercourse” portions of the definition of “sexual conduct” because we had previously held the rest of that definition unconstitutionally overbroad. Maynard, 138 Or App at 652 (citing State v. House, 66 Or App 953, 676 P2d 892, mod 68 Or App 360, 681 P2d 173 (1984), affd on other grounds 299 Or 78, 698 P2d 951 (1985)). Shortly after the Civil War, in 1868, New York adopted an antiobscenity statute. 7 NY Stats 309 (1868).
” ‘Sexual excitement’ means the condition of human male or female genitals or the breasts оf the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity.”
Perhaps the most familiar summary of such literature is Justice Douglas‘s, in his dissenting opinion in United States v. 12 200-Ft Reels, 413 US 123, 93 S Ct 2665, 37 L Ed 2d 500 (1973), in which he observed that the four decades before the enactment of the First Amendment “‘saw the publication, virtually without molestation from any authority, of two classics of pornographic litеrature.’ D. Loth, The Erotic in Literature 108 (1961). In addition to William King‘s The Toast, there was John Cleland‘s Memoirs of a Woman of Pleasure, which has been described as the ‘most important work of genuine pornography that has been published in English***” L. Markun, Mrs. Grundy 191 (1930). In England, Harris’ List of Covent Garden Ladies, a catalog used by prostitutes to advertise their trade, enjoyed open circulation. N. St. John-Stevas, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e.g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gallichan, The Poison of Prudery (1929); D. Loth, supra; L. Markun, supra. This was the age when Benjamin Franklin wrote his ‘Advice to a Young Man on Choosing a Mistress’ and ‘A Letter to the Royal Academy at Brussels.’ ‘When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was ‘one of the best novels in the language.’ ” Loth, supra, at 120.” Id. at 132-33 (footnote omitted).
Judge Armstrong also makes an argument that the lead opinion does not, namely, that my historical exception analysis is foreclosed by the fact that obscene libel is not a “conventional” crime. According to Judge Armstrong, it is my task merely to apply the distinction between conventional and other crimes, “not to explain why it is untenable.” 168 Or App at 156 n 5 (Armstrong, J., concurring). Judge Armstrong‘s argument, of course, amounts to mere question-begging. The very issue is what the court meant by its reference to “conventional” crimes and its relationship to the Robertson historical analysis. I have, in good faith, attempted to articulate an answer to those questions, not to assert that what the court has said is in any way “untenable.” Judge Armstrong‘s concerns are misplaced.