*1 August Argued March reversed and remanded and submitted OREGON, OF STATE review, Respondent v. ROBERTSON,
DWIGHT Petitioner on review. 28280)
(TC 10-80-07971, CA 19337 SC OREGON, STATE OF review, Respondent on YOUNG, REGINALD DWAYNE review. Petitioner on 28281) (TC 10-80-07969, CA SC P2d 569 *2 403-a *3 Morrow, peti- argued the cause for Eugene,
Kenneth A. review. With him on the Dwight tioner Robertson on Morrow, Divita, P.C., & petition for review was McCrea Eugene. Strickland, Eugene, Reginald filed brief
James R. brief petitioner on review. With him Dwayne Young, Strickland, Eugene. was Curtis & Larson, Attorney, Eugene, Darryl District L. Assistant him on respondent on review. With argued cause for Horton, Pat Appeals was J. brief in the Court County. Attorney for Lane District * Linde, Lent, Denecke, Justice* Before Chief Peterson, Campbell, Tanzer and Justices.
403-b LINDE, J.
Peterson, filed a concurring opinion. J.
** Denecke, C.J. retired June 1982.
LINDE, J. is the valid-
The issue to decided constitutional the of “coer- ity creating defining of a statute and crime Defendants were indicted under one subsection of cion.” statute, 163.275(1)(e), crime the which makes it a ORS another in compel engage induce conduct him right by causing which he the to abstain legal has fear the disclosure of discreditable assertions about some the the person.1 ground Defendants demurred on terms vague penal of the statute are too for a law. court the On the
The trial
sustained
demurrers.
reversed,
appeal,
Appeals
upholding
state’s
the Court
opin
and
indictment
divided
validity of the statute
Robertson,
in State V.
54 Or
panel
ions first
in a
decision
630,
(1981)
Young,
P2d 1057
and State v.
54 Or
App
681,
banc,
(1981),
P2d 681
and
in
App
subsequently
Paige,
App
three
in State v.
55 Or
judges dissenting,
allowed
Having
Since
a criminal
upon considering
demurrer
required that
case,
allowing give judgment,
“the court shall
either
entry
effect
be made in
disallowing it, and
to that
shall
century
that code
ORS 135.660. For
between
journal.”
only from “a
appeal
judgment
could
the state
or from an
defendant,
a demurrer to the indictment”
pronoun
statutory
to include the
We follow the
use of the masculine
feminine.
174.110.
*5
19, 1864,
227, in
Act of Oct.
arresting judgment.
order
§
(1961 ed.)
1845-64,
An
Laws
at 480. ORS 138.060
Oregon
merely sustaining
appealable.
a demurrer was not
order
Cloran,
400,
(1962),
State v.
233 Or
In a trial attempted appeal state from court dismissing upon order an indictment defendant’s appeal motion. This court dismissed the because the order judgment was not a on a demurrer and therefore not within Sieckmann, appealable list of orders. State 251 Or 445 P2d Department Thereafter Justice obtained an amendment which allowed the state to appeal from an prior “order made to trial dismissing the indictment.” The amendment did not add these words to 138.060; rather, they replaced prior reference to an appeal demurrer, from a judgment removing on a explicit basis for such an appeal. 1971 Or Laws ch 644. The statute was further amended in 1973 to add the words “setting aside” to “dismissing” broadening “indict- ment” “accusatory instrument,” so that the relevant provision may now reads: “The state take appeal an from the circuit court or the district court to the Court of (1) Appeals from: An prior order made to trial dismissing or 138.060(1). setting accusatory aside the instrument.” ORS time, At the same legislature enacted a new provision providing for an accusatory dismissal of instru- ment, ORS 135.470. The prescribe statutes now different grounds demurring accusatory instrument, for to an instrument, “dismissing” such an and for aside” an “setting indictment.2 The present properly demurrer in the case by grand jury A defendant demur when an indictment is found county, wrong statutory requirements, when it does not conform to when the offenses, charges multiple instrument the facts stated not constitute an when do (the here), ground upon offense which the demurrer was when the allowed bar, justification, excuse, legal instrument shows when it is definite or other not and certain. ORS 135.630. proper jeopardy. An “Dismissal” is for former ORS 135.470. indictment properly procedural “set aside” for or formal defects listed ORS 135.510. offense, of constitu- grounds invoked failure to state lead to a this would defect. Under ORS 135.660 tional under ORS appealable have been that would “judgment” when the reference as it stood until 138.060 from eliminated on demurrers was appeals judgments ORS 138.060. to this response
The state’s memorandum now do concedes that statutes questions court’s judg from an order or appeal allow the state to expressly pro criminal Oregon “if present a demurrer ment on upon an insistence literally, read cedure statutes are *6 incomplete and with an terminology, precise and uniform argues, them.” The state history behind appreciation history should however, of that proper appreciation that a literally to orders limit ORS 138.060 persuade us It contends that when accusatory instruments. “dismissing” Sieckmann, Justice, supra, v. of after State Department the dismissing “order. . . legislature the to substitute induced on a for the defendant “judgment the indictment” demurrer,” long mean sacrifice its the state did not demur judgments adverse right appeal standing dismissal, and also include orders of expand rers but to it to requiring judgment demurrers without sustaining orders 135.660, the rule of State v. by superseding prescribed short, Cloran, In the and the decisions there cited. supra, policy objectives asks us to effectuate department the 1971 and 1973 history of by legislative shown amendments. appears it history sparse, legislative
Though
the intended
version of
department’s
with the
consistent
the 1971 amendment
the amendments.3 When
goal of
138.060, any
on demurrers
from ORS
judgments
removed
certainly
unappealable was
rendering
of
them
effect
presented
legislative
then
was
to the
committees
The
amendment
197.1
Law and Procedure
The minutes of the Senate Criminal
Solicitor General Tanzer.
report:
Committee
the demurrer
“Mr.
that HB 1003 was submitted to amend
Tanzer advised
prior
any
dismissing
to trial
order
an indictment
subsection so as to refer to
appeal any
granting the defendant’s motion
order
and also to allow the state to
presented.
acquittal.
judgment
the state’s case is
of
This would be after
to
latter,
amendment,
hoped-for
amendment
the House. The
was stricken
approved
modifying
the House.
the demurrer clause was
this
of
jurisdiction
had
it
deciding
In
unintended.
decision
its earlier
Appeals
of
extended
the Court
appeal,
1259, reconsidered
Thomas,
P2d
App
32 Or
State
(1978),
initially
had
which it
II. The issues. Although alleged defendant’s demurrer charged the crime in the indictment was “unconstitu- tionally vague,” Appeals support- the Court of construed a trial also ing memorandum as attacked the statute having unconstitutionally proceeded “overbroad.” As court *7 basis, accept to decide the case on that we its characteriza- tion the memorandum. attention again of But we once draw frequently to the misunderstood difference between the two of a “Vagueness” constitutional claims. and “overbreadth” epithets law are not two alternative or cumulative for the same shortcoming. clause, Tanzer, continued, problem is that the “The with the demurrer Mr. indictment, by plea, provided
only response
than a
which is
to the
other
thing
in the
a motion to dismiss
statute is a demurrer. There is no such
as
However,
statute, therefore,
appeal
to a demurrer.
statutes and the
refers
preclude
raising
and a motion to
of constitutional
issues
state cannot
this,
doing
the statute allows for such
is the vehicle for
whether
dismiss
today
not attacked
and more often
indictments are
motion or not. More
any
appealing
precluded
The state is
from
demurrer but motions
dismiss.
example
ruling
the kinds of
cited as an
of
made on such an order. Mr. Tanzer
Sieckmann,
into,
259,
(1968).”
gotten
v.
251 Or
The rule
vague
laws has been rested
premises.
Hodges,
various constitutional
In State v.
254
21,
(1969),
Or
“A law that and or punishment withhold their uncontrolled discretion is uncertainty defective adjudication as much for its as for notify potential scope its failure to defendants of its and reach.
“. vague . . A statute lends itself to an unconstitutional and, delegation power legislative judge jury, to the be, permitting jury to decide what the law will it rule, principle, against post if ex offends not the facto Constitution, I, Oregon laws. See Art §21.” 27, Blair, quoted 519, 254 Or at in State v. 287 Or 522-23 (1979).4 Perhaps the vice of the “uncontrolled discretion” Hodges mentioned in lies as much in inviting standardless and unequal application penal laws, contrary to article section 20.5 accompanying quoted opinion An footnote from of the United States Supreme suggests case-by-case may Court which that such definition of crimes also process
fall short of due
under the 14th amendment:
requirements
law fails to meet the
of the Due Process Clause if it is
“[A]
decide,
vague
judges
jurors
so
and standardless that it leaves. . .
free to
standards,
any legally
prohibited
without
fixed
what
and what is not
particular
each
case. ...”
399, 402-403,
Pennsylvania,
(1966).
Giaccio v.
382 US
86 S Ct
to all citizens.”
Clark,
(1981),
Edmonson,
See State v.
251,
291 Or
409 notify the of “failure Moreover, unfairness reach” can scope defendants of and potential law’s] [the 14th process a denial of due under the federal constitute Jersey, 451, v. amendment. See Lanzetta New 306 US 59 S 618, (1939). Recently Village LEd 888 Ct 83 of Hoffman Estates, Inc., 489, Estates v. 455 US Flipside, Hoffman 1186, (1982), Supreme S Ct LEd2d 362 Court of the .71 reaffirmed the objections United States constitutional cases, vague laws terms much like those in our own 108, Groyned quoting City Rockford, 408 US of (1972): 92 Ct LEd2d 222 S “ First, ‘Vague important laws offend several values. we because assume that man is free to steer between lawful conduct, give and unlawful ordinary intelligence we insist that laws of opportunity
a reasonable to know prohibited, accordingly. Vague what is laws so that he act may trap providing warning. the innocent fair Second, arbitrary discriminatory if and enforcement is to prevented, provide explicit laws must standards for those apply impermissibly A vague delegates who them. law basic policy policemen, judges, juries matters to and for resolu- basis, ad subjective tion on an hoc and with the attendant (foot- dangers arbitrary discriminatory applications.’ and omitted).” *9 “Overbreadth,” however, is a claim. It different kept should in mind that the terms “overbroad” and be “overbreadth” are not themselves terms of state or any “vague” constitutions, federal more the terms than lawyers’ “vagueness”; they phrases are for shortcom- ings that are claimed to contravene other constitutional They by constraints. have used different theorists and been carry things and courts to mean different consequences. to different Sup Monaghan, Overbreadth, 1981 Ct See (1981). principle, however, “over- Rev 1 In a claim of breadth” that the terms of a law exceed constitu- asserts protected purporting boundaries, to tional reach conduct guarantees Oregon instance, as, Constitution, for arti- such (freedom write) speak cle and or section 27 section arms). (right recently As in a case to bear this court stated under 27: section law, developed
“An that has ‘overbroad’ as term been Court, Supreme not vague, the United States is not or need may be. vice failure to communicate. Its vice Its is not clarity. For law is to the extent that it a overbroad prohibition a that which announces reaches conduct prohibited. A make law as legislature not be can a ‘broad’ it it reaches into constitu- inclusive as chooses unless tionally protected ground. stat- clearer ‘overbroad’ is, by interpretation it is ute the harder to confine it within constitutionally permissible its reach.” Blocker, 291 Or 630 P2d State v. properly assert
A claim of “overbreadth” cannot literally, law, read broader than that the words of are intended, for is an issue to be resolved the lawmaker by interpretation. law A claim that constitutional again interpreted its cannot be discerned from terms once is vagueness, Again, Supreme overbreadth. claim of arguments tendency to Court noted the confuse the Flipside Village supra, Estates, chal Hoffman lenged prohibiting paraphernalia an ordinance the sale designed illegal drug for use:
“Flipside argues is also the ordinance ‘overbroad’ it and ‘lawful’ uses because could extend ‘innocent’ . illegal drugs argument . . This items as well as uses with If doctrines. vagueness and overbreadth seems to confuse whether determine objecting that it cannot Flipside uses, it is then lawful items with some regulates ordinance vagueness.”7 complaining of 497, n. 9. The Estates, 455 US at supra, Village Hoffman the distinction. correctly understood Appeals
Court of failing vague, attacked as a statute is When the statute sometimes coverage, its and communicate define it the gives interpretation judicial can be saved to do so obligation It is the court’s definiteness. required far from what departing too this can be done without when statute or what accomplish legislature sought saving But when such convey to a reader. itself can legislature be attributed construction cannot apparent words fidelity legislature’s to the reasonable enacted, and it is immaterial invalid as intent, the statute is would challenged in which it is particular case whether *10 a law.8 validly immune from drawn be 7 they invalidating innocent laws because cover decisions such Lower court wrote, uses, Supreme the Court illegal stemming “may in are ineffective a belief that these measures reflect however, clarity. defect, perceived In the drug not a defect of is use. This prohibiting unlikely ordinance as a court construed this event that state pipes description, pipes, of corncob then a seller the sale of all of whatever course, could, unduly vague. complain He of the law is could not object such items.” law was not intended to cover the 497, Flipside, supra, Village at n. 9. Estates v. 455 US of Hoffman process requires notice to a defendant of 14th due fair So far as amendment Estates, explains forbidden, Village supra, that the defendant what is of Hoffman valid) (otherwise of the law terms he could not know that must show that in of proscribed on its face advance When the law is attacked his conduct. conduct, Supreme potentially Court stated: violative and, challenge assuming vagueness examine the facial court should] “[A conduct, uphold constitutionally protected implicates should the enactment no impermissibly vague in its challenge all of if enactment is clearly proscribed applications. plaintiff engages that is in some conduct A who applied vagueness of complain as to the conduct of the law cannot of omitted). (footnote others.” complainant prove must “the 494-95. The court noted that 455 US at requires conform his vague it in the sense that enactment is ‘not standard, comprehensible rather in the imprecise but but normative conduct to an ” City quoting specified Coates is at all.’ standard of conduct sense that no of 495, 611, Cincinnati, n. at 7. 455 US 402 US necessarily defendants, course, analysis of does fair notice to based on legislative objections failure to equally “vagueness” based on apply to the other defining those policy excessive transfer of crimes and choices make crucial courts, jurors, prosecutors, we have referred above. to which choices to A narrowing similarly construction may save a statute attacked “overbroad,” unless the constitutional guarantee invoked against the statute very forbade its enactment I, as drafted. Article section instance, for forbids lawmakers pass any law “restraining the free expression opinion, or restricting right to speak, write, print freely any on subject whatever,” beyond providing remedy any person injured by the “abuse” right.9 this This forecloses the enactment any law written in terms directed to the any “opinion” substance of any “subject” of communication, unless the scope of the restraint is wholly confined within some historical excep tion that was well established when the first American guarantees of expression freedom of adopted were and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are perjury, solicitation or crime, verbal assistance in theft, some forms of forgery and fraud contemporary and their variants. See Greenawalt, Crime, Speech and 1980 Am B Found Res J 648-70. Only if a law passes that open test is it to a narrowing construction to avoid “overbreadth” scrutiny or to of its application particular facts. As the court recently said of another challenge under article section 8:
“This
provision
constitutional
prohibition
is a
on the
legislative
prohibits
branch.
legislature
It
enacting
restraining
laws
expression
opinion
the free
restricting
right
speak
freely
any
subject.
If
concerning
a law
speech
free
prohibition,
on its face violates this
it
unconstitutional;
necessary
it is not
to consider what the
conduct is
the individual
If
case.
the law is not uncon-
face,
stitutional on its
might
applied
it nevertheless
manner that would violate Art I
8.Ӥ
State v. Spencer,
225, 228,
289 Or
611 P2d
*11
(1980).10
Green,
99,
(1979).
Wheeler v.
286 Or
by ORS bearing There is an additional element on the review of statutes for “over- I, compared guarantees breadth” under article section as with some other such question saving is construction is The whether possible necessary, so, and if whether in the case of the it is Appeals Court coercion statute. The of took defendants’ in indis- contentions criminately this case to raise the claim reaching expression designed to induce warnings, conduct means another’s of threats or restricting coercion statute as written is a law freedom speech contrary Oregon I, Con- to article section 8 of the stitution and the court federal first amendment. The rejected vagueness. issue, this claim well as that of legislature passed therefore, is whether statute that the enough vagueness can be understood in terms avoid clear to constitutionally permissible and also confined within limits. follow, For the reasons that that it cannot. we conclude III. The statute. provides:
ORS 163.275
“(1)
person
A
commits the crime of
when he
coercion
compels
person
or
another
in
engage
induces
to
conduct
abstain,
from
he
a legal right
has
to
or to abstain
engaging
legal
in
right
conduct
which he has
to
engage,
that,
instilling
means of
in him a fear
if the
with,
complied
demand
the actor or another will:
“(a)
physical
injury
Cause
person;
to some
or
(cid:127)
“(b)
damage
property;
Cause
to
or
“(c) Engage
crime;
in other
constituting a
conduct
or
“(d)
person
Accuse some
aof
crime or cause criminal
him;
charges to be
instituted
or
“(e) Expose
fact,
publicize
a secret or
an asserted
false,
true
tending
subject
whether
or
some
hatred, contempt
ridicule;
or
or
Blocker,
Kessler,
I,
supra,
as article
State v.
and State v.
section
considered
8, provides:
289 Or
“(h) by position public Use or abuse his as servant duties, act or to his official performing some within related by perform duty, in failing refusing to an official such or or person adversely; manner affect or as to some “(i) any not Inflict harm which would benefit actor.
“(2) felony.” C Coercion is a Class turn to an whether the statute on
We examination article its face is a law whose enactment was forbidden not, impermissibly vague or if whether it either is section broadly potentially written to reach communica- or so must remain free. tions that question on the Appeals
The Court of divided “restricting right is a law whether ORS 163.275 subject majority freely any . . . whatever.” speak it panel panel held that was not. The dis the Robertson ground v. on the tinguished Spencer, supra, State disorderly object was the direct “speech itself [the] “is the coercion statute provision,” conduct whereas in respect act of is communicating directed at the crime, defining such as any like other criminal statute robbery, may incidentally involve communication.” which Paige, supra, in in State subsequent In the decision banc disputed that view of the statute: dissenters Robertson, expressed the act “Contrary in view clearly question is in here forbidden the statute person solely ‘inducing’ speech. ‘Compelling’ or another legal person engage in from which that has some conduct abstain, engaging right conduct to abstain right engage, by means of person legal which that has a making the threat that the one instilling fear only fact can be expose publicize an asserted will a secret telegraphic, parol, accomplished by speech, telephonic, it making the threat language. It is the act of sign the offense.” gravamen Paige majority disagreed App with the at 524. The 55 Or making the threat. . . is that “the act of dissent’s statement gravamen “the offense of of the offense.” It noted that acts.” Because a coercion is not committed until the victim consequences is not unless threat of adverse forbidden majority making successful, of the “[t]he found that offense, a manner of threat is not the basis but bringing It that the coercion it about.” therefore concluded *13 proscribes speech act of statute “not but conduct—the App diverg- overpowering another’s will.” 55 Or at 522. The ing premises some themes in the touch of the most difficult speech. constitutional law of free view,
In our it cannot be said that the coercion speech. agree not that the statute does statute is directed in terms forbid We because pursuit the of a forbid- disorderly provision not, like den effect and the conduct Spencer, against speech such, forbidden it is not a law wholly whose enactment was for this reason alone with- legislative authority by I, drawn from article section 8. But speech statutory because the is a element the definition of susceptible possible offense, the statute is to attack for overbreadth. (1) 163.275,
Subsection which formulates parts. major opening “coercion,” the crime has two The compelling clause defines the essence of the crime as or inducing voluntary by otherwise conduct means of fear. The qualifies spec- by remainder of the sentence the definition ifying consequences the kinds of threat- compel ened in order to or induce the demanded conduct. (1) opening are The elements stated in the clause (2) upon person, that the accused makes a demand another legally choose that whether to the addressee otherwise is free to (3) engage conduct, that in the demanded puts specified accused the addressee in fear of one of the if the the accused or someone else adverse actions demand is not (4) compels
met, fear or this comply with the demand. In view induces the addressee to Paige majority accurate, said, element it is as the last But that the until the victim acts. offense not committed directed this does not demonstrate that the statute is not against speech.
The presupposes offense “demand” the defen dant, which means a otherwise; communication in words or matter, a practical and as if not logical necessity, as a no doubt also assumed legislature impelling fear by speech instilled equivalent. will be or its If the victim in fearful anticipation any demand, acts without the defini demand, of coercion is not met. fear-instilling tion specified of a consequence communication of non compliance, and the fear-induced compliance all are essen tial; addressee, the crime is not made out if the though if he frightened, comply does not acts for reasons independent of demand or the threat. The challenge article under section therefore cannot be dismissed simply saying statute forbids “act” rather than That “speech.” helpful distinction could be if a law acts, other proscribed threatening gestures intimidating necessary if it became to differentiate between the communicative content and the noncommunicative means expression. speech often would be the proscribed But Indeed, committing act this crime. offender’s it statute leaves immaterial whether an accused or another carry either the capacity had intent or out the consequences; a threatened successful bluff seems to suffice. *14 insurmountable, intrinsic, though There is an is invalid when analysis. If a law of overbreadth paradox expression, free to restrict literally applied could be ever it that a valid to hold will never be occasion seemingly there case. particular in a In unconstitutionally applied was law as speech less trouble when practice paradox causes target intended element or specified a such is not is use of words includes the That an offense restrictive law. in terms prohibition enactment of fatal to the not in itself words as such. against than causing harm rather directed at traditional crimes. many in is an element Communication lawmakers I, 8, prohibits above, article section As stated of on the content focus restrictions enacting itself is content because that either speech writing, or it is offensive, or or because socially undesirable deemed principle This is the consequences. adverse to have thought laws must It means that supra. Spencer, in applied State of accomplishment or pursuit proscribing on focus speech results rather than the suppression forbidden of either as an end in writing itself or as a means to some turn, end. legislative Spencer, quoted other in from State v. Blair, 519, 523, (1979), 287 Or 601 P2d which invalidated a section of the harrassment law vagueness:
«* * * difficulty sharpened by No doubt the is the fact 166.065(1)(c) expressly gravamen that ORS makes the the offense that the offender communicates rather than subjects injury, that he the victim to some defined only employed the communication is the means in the particular case. A statute in that does not its own terms speech require forbid sensitive confinement within constitutional or other communication still would
limits,
but it is
less vulnerable to constitutional attack on its face.”
To this
correctly
the Court of Appeals
distinguished
Spencer.
State v.
The coercion statute
written so as to focus on a forbidden effect —the effect of
frightening
another
into a nonobligatory
undesired course of conduct. But
statute continues
specifying that
the compulsion
or inducement
not be
imposed
“demand,”
in aid of a
specified
means of
verbal
warnings
threats. We do not suggest
that ORS
163.275 would be a
penal
better
statute if it ended before
means;
the specification
already stated,
legislative
attention to the
penal
reach of a
law is a
major object
the rule
vagueness.
proscribed
When the
means
*15
11Not,
least,
support
legislative
background showing
at
without
of
or other
suppression
expression
law;
expected object
of
itself was the intended or
O'Brien,
compare
(1968)
United
States
391 US
88 S Ct
include written to is, effect, on a forbidden as ORS 163.275 must be focus appears priv- it to scrutinized to determine whether reach interpreted ileged or whether it can be communication avoid such “overbreadth.” apparent
IV. reach of the coercion statute. A notable of is it characteristic ORS 163.275 requires neither the conduct of the victim nor demanded wrongful. the action threatened in case of to be It refusal analysis therefore does not of fit into the constitutional conspiracy, participation solicitation, advice, or other verbal act, in another’s criminal nor is it to threats of confined uncooperative victim, a crimes or torts an as in robbery rape. Only among item or one threatened 163.275(1) consequences illegality, listed in assumes (c), constituting item a the catch-all “other conduct crime.” (c) It implies is not contended that word “other” item consequences listed other threatened are covered as their execution would be law insofar precludes illegal, and their character a construction of such Some, indeed, of them. would often be several constitu- tionally privileged publication out, if carried such as the (e), actually legal derogatory duties, would facts under or testimony performing giving (g) under one’s such or (h). demanded nor official duties under Neither the action consequences upon threatened the occurrence target refusal is the concern of this statute. The the law compliance is the effective use of fear to induce with demand. spacious coverage tempting oppor-
This offers statutory text, tunities for an “overbreadth” attack on the only by imagination This limited court counsel. 163.275(l)(e), supra, dealing particularly true of ORS expose publicize threats to some asserted fact that subject contempt, hatred, would tend to some present charge brought. ridicule, under was Thus which posited one man tells defendants situations my you quit making wife, I’m “If don’t love another: your proposes going wife,” tell or someone disclose get pilot’s if he secret illness does medical airline politician’s past embarrassing if he attention, does not candidacy from office. The dissenters in the withdraw his *16 journalist Appeals a in which added illustrations Court private public facts disclose a official that he will advises showing pending measure in a an official’s financial interest voting measure, not refrain on the the official does from if appellate judge might another, “one tell in which or your expose your opinion, ‘Change I dissent and shall ” App complete ignorance at area Or of this law.’ 55 (Gillette, they dissenting). might J., Indeed, have added plea-bargaining attempts prosecutor’s a to induce plead guilty charge to one in order to avoid defendant literally charges prosecution ORS on other violates 163.275(1)(d). particularly hypothetical examples, of the
Some family members, are addressed to minors or to statements possibly legislature have could not to show that offered meant to outlaw question point. them, is not to the The but is not even whether the statute of overbreadth in which the actual disclosure would covers situations hypothetical privileged expression, demand whether the but a disclosure would be so backed privileged. political the threat of such examples from a
The of such demands drawn directly involving consequences rele- context and plainly an exercise of vant to the demanded act would be speech writing.12 disagreement free The real between prosecution, therefore, ORS defendants and the is whether given principled interpretation 163.275 can be application free excludes its to these and other instances of expression. difficulty simple. cannot be The first answer interpretation 163.275, search,
lies in the not for preserve. principles interpretation that the must but for the analyses principles governing and academic Judicial freedom to sparse coupled have been make demands with threats perhaps inconclusive, because these elements robbery and extor- traditional domain of characterize the bodily Although money by harm. threats of tion of inducement underlies much feared reaction of others Const, 26: § See also Or art any passed restraining of the State of the inhabitants law shall be “No Legisla- applying Representatives; instructing from their nor from . . . (sic).” greviances ture for redress of institutions, family throughout desired conduct social legal system civilized advertising, and schools to consumer autonomy of choice individual protect choose of civil or if its rules against many compulsion, kinds of bounds. Yet constitutional liability criminal remain within speech, realm of free obviously some demands are in the noncompliance. are of the intended sanctions for warnings to others from easy political examples It to extend the academic, cultural, beyond.13 Ver- religious settings unlawful, violent action bal threats to take or initiate even by their content beyond protection are not first amendment alone, imminent realization.14 any divorced from
Principles
speech analysis
for a free
of demands
combined
might
with threats
be
in various
sought
elements
combination,
(1)
such as
lawfulness
or
conduct;
(2)
unlawfulness
lawful,
the demanded
unlawful,
constitutionally
or
nature of the
privileged
threat-
(3)
conduct;
ened
and the motive of the
objective
demand;
(4)
making
relationship
the par-
between
ties to the demand or
parties
between the
threatened
(5)
consequences;
the relevance of the threatened
conse-
quences
noncompliance
with the demand. Additional
(6)
employed in
might
expression
variables
the means of
threat,
(7)
the demand or the
the likelihood and imminence
(8)
acts,
of the threatened
other distinctions
in the social
setting or function of the demand.
turn
an examina-
We
tion whether one or a combination
of these variables
explains
precedents
such
as exist on the constitutional
question.
13
(or
you
report
essay,
“If
For instance:
do not withdraw this research
(or
script),
you
experiment
essay
plagiarized
I will disclose that
falsified the
church,
plot)”;
you
ministry
or “if
not leave the
this
I will
do
disclose
history
your past
by
divorces.” The role of demands backed
threats
labor and
race relations is discussed below.
14
States,
705,
1399,
(1969)
See Watts v. United
S Ct
rather than in Cantwell v. US 60 S Ct 84 LEd (1940) Chaplinsky Hampshire, v. New 86 LEd 315 US 62 S Ct Extortion, intimidation,
V.
coercion in the courts. protection against being The classic form of com- pelled by up give obligation threats to what one is under no yield long-established is found in the laws black- grounds mail15 or similar forms of extortion. On historic contemporary alone, we have no doubt that these or their equivalents proscription speech-restraining survived the laws in article section 8. A central characteristic of these crimes, classic however, was that the unlawful threats were money things used to obtain or other of value. Extortion developed robbery by including extension of threats physical injury generally other than threats of and is classi- against property. fied as one of the crimes Perkins, See (2nd 1969).16 Criminal Law 372-75 ed It continues to sobe Oregon classified in the Model Penal Code and in the by Code, Criminal which treats “theft extortion” as one form of theft. ORS 164.075. repre- extortion,
Theft defined, as there itself significant robbery by sents a extension of threat insofar as it includes threats of future actions that would not be unlawful or tortious if carried out. The kinds of threatened consequences required extortion, theft listed in ORS 164.075(l)(a)-(i), are identical to those for coercion listed in 163.275(l)(a)-(i), above. The two offenses differ unlawfully in that another to compelling theft extortion consists in part property. Conceivably beyond it is not *18 challenge hypothetical applications. assuming in some But 15 “blackmail,” originally paid The term coinage, rents in kind inor base is by freebooting said also to refer English to a tribute exacted Scottish and protection. Perkins, (2nd 1969). chieftains for Criminal Law 374-75 ed 16 only by “corruptly” Common law extortion could demanding be committed collecting payment public office; and an unauthorized under color of it is a crime against legitimate government, obverse, bribery, conduct of like its more than against Perkins, supra property. citing Blackstone, the victim’s at 4 Commen (1769). 141 taries robbery Interestingly, beyond threat was extended threats of immediate bodily specifically sodomy, i.e., harm to include a threat to accuse another one misconduct, though regarded gravely form of sexual one far more than that supra present Perkins, threatened citing to be disclosed case. at Case, (1783). Hickman’s 2 East P.C. 728 types Scott, Various of American statutes are described in & LaPave Criminal Study (1972), Comment, Statutory Criminal Law—A Law 705-707 Blackmail States, and Extortion in the Several 44 Mich L Rev 461 422 to the present purposes
for that the verbal element common by extortion, no “overbreadth” in theft two offenses causes properly applied, as the statute is does the same long instances of potentially privileged verbal element reach beyond compelling unwilling extended speech when it is unwilling to other forms of behavior? delivery property whether there are situations which one depends That to constitutionally privileged persuade to use threats is conduct, his not to though course of change another to for oneself or another. property obtain question have been able to avoid this when Courts extortion in the narrower charge before court was State, In sense stated above. Carricarte v. 384 So2d (Fla den, 1980), cert a Florida court was faced US a lawyer charged with an claim when was “overbreadth” a real if the telling developer with extortion for estate him, to developer employ attempt stop would not he would development, organize opponents represent newspaper published articles to be project, cause premises it. like those we Beginning with much above, over charge have out the court sustained the set he have been constitu- objection defendant’s would tionally carrying alleged out the threats.17 The privileged objection charge was held fail because the included “malice,” explained, and elements of a term not further Id. court acquire pecuniary gain.” “intent concluded another, made with injure threats to when “malicious” money compel to “extort” or to another’s con- the intent always will” be “communications duct his would “against protection.” of First Amendment So2d at undeserving Similarly, Supreme rejected the Louisiana Court 1262-63. Amendment, analysis, overbreadth limited to the First recited: The court’s validity standing of the statutes under to attack the facial “[Defendant’s] imper- upon his these statutes doctrine rests contention that overbreadth necessary missibly rights. It is him affect ... First Amendment activity constitutionally protected. . . . own demonstrate that his overly susceptible application “Legislation may if it is be broad punish only protected by . . . the First Amendment. Statutes conduct they challenge spoken if an overbreadth word will withstand protected speech.” narrowly application delete construed to omitted). (Citations 1262. 384 So2d at
423 police attack an overbreadth on an extortion statute when a demanded sexual threat of arrest- officer intercourse under ing the victim. The court construed the statute to cover commonly prohibiting blackmail,” “what is known as part property use of threats to cause the victim to with his advantage threatener, or otherwise act to and it construed, that when concluded so the extortion statute did infringe upon any constitutionally protected not or inhibit (La 1976). expression. Felton, State v. 339 So2d 800 Thus these decisions sustained extortion statutes simply on the basis that the forbidden threats were used gain something personal in a benefit to threatener case, bilateral transaction. In however, each another ele ment case, could be relevant result. In the Florida lawyer’s employment independently demand for was legal unlawful aas forbidden solicitation of business. Carricarte supra, State, . v 384 at So2d 1263-64. In State v. supra, police Felton, officer’s threat to the victims arrest they comply if demands, otherwise, did not with his but not authority analogous no doubt anwas unlawful abuse of his original to the supra extortion, common law crime of official analysis note 16. This leaves some doubt whether the in these cases have been would the same if the threateners’ apart conduct had not been unlawful from their use of personal objectives. threats to obtain Lacking self-seeking objective the element aof characterizes statutes, blackmail or extortion on the other hand, a federal district court relied on this second independent element, the acts,18 unlawfulness of coercive rejecting challenge an “overbreadth” to the New York coercion statute on which modeled, ORS 163.275 is require objective. which does not such an The court enjoin prosecution declined to a state for coercion at the persons charged preventing suit of who had been statute, long Even under an extortion before a claim of “overbreadth” was known, Supreme lawyer the South Dakota Court found a violation when a wrote an errant husband that him he would have arrested if he did release some property wife, rejecting lawyer’s performing to his contention that he was professional duty benefitting part ground to his client rather than himself in on the implied wrongful compromise alleged that the letter offer to criminal offense. Sherin, In re 27 S Dak NW 761 personnel phys- “intimidation,
work school means any indepen- ical force and interference and dently means of Bishop Supp Golden, unlawful act.” 302 F *20 (EDNY 1969). Although challenge overbreadth, was for beyond charge the court did not look and discuss might whether the statute as written extend to demands accompanied by “indepen- that are neither nor threaten dently unlawful” conduct. opinions characteristically
These and other start charged particular from the conduct in the case rather than hypothetical applications presented that are to show challenged the overbroad reach of the statute. Potential squarely overbreadth is faced more when statute is specific prosecution, attacked outside the context of a so charge there is no concrete under the statute to be constitutionality. apparent tested for This is in another produced searching case that a far more examination of the though constitutional “intimidation,” status of also con- ducted under a federal court’s view of the federal first guarantee amendment without reference to a state such as article section 8.
Landry Daley, (ND 1968) Supp 280 F Ill was brought negroes class action on behalf of “the class of all City Chicago” organiza- in the as well as individual and plaintiffs among tional attacked, statutes, other plaintiff Illinois “Intimidation Statute” under which no prosecution. guilty then faced The statute declared one “intimidation” when perform “with intent to cause another or to omit the
performance any act, he communicatesto another a perform authority” threat to without lawful one of various acts somewhat similar to those listed in 163.275.Ill 38, § Rev Stat ch 12-6 Plaintiffs claimed punish this statute could be construed so as to them threatening engage for protest in “direct action and activities” Supp racial discrimination. 280 F at 960. misgivings, First, assumed, the court with some constitutionally protected expression that “threats” are not character, if intent, and circumstances of the threat are narrowly circumscribed.19 This meant at least reasonably the addressee context and circumstances cause perform to fear that the threatener the threatened act. will important, More lawful forbidden threats to cover the court “without construed the words
authority” confining paragraphs listing
only acts, unlawful and even paragraph covering then it minor invalidated one such a proscription of offenses. Thus the court construed the physical person property threats “to inflict harm” on a “subject any person physical or to confinement or excluding restraint” as such their execution threats when paragraph referring would not be A threats to unlawful. any person “accuse of an to mean offense” was construed a formal accusation of an innocent made “with grounds malice” and without reasonable magistrate having jurisdiction before a court or inquire allegation, into the words, in other when execution of such a threat would prosecution. paragraph constitute malicious ding Another forbid- *21 “expose any person contempt hatred, threats to to or ridicule” was limited to mean actionable defamation or privacy. paragraph taking withholding invasion of A on or referring official action was sustained as ato threatened authority. “bring abuse of strike, A threat to about or continue a boycott construed, or other collective action” was again by authority,” statutory phrase virtue of the “without lawful only
to mean unlawful collective action. unquestionably legitimate protect- “The State of Illinois has a interest in ing persons threats, though expression from coercion even is involved .... [However:] “Legitimate political expression changes intended in to secure a society’s social, legal, political, frequently or economic structure takes the expressions expression form of about future events or conditions. Such promises, predictions warnings, be in the form of or or threats of lawful action. proscribed by “While we doubt that character threats of the the expression, point legitimate Illinois Intimidation statute are forms of legitimate expression expression at which becomes coercive of unlawful easily determined, especially public intent is not in the heat of debate. The however, expression, extremely freedoms of are vulnerable to excessive restriction. . . .” Supp F at 961. law, again We note that unlike the in terms Illinois ORS 163.275 does not any “opinion” “subject” make it a crime to “communicate. . . a threat” or other speech writing, escapes legislative and to that extent the initial bar to Spencer, supra. enactment in State v. stated sum, Landry premise In court proceeded validly Illinois could “threats” if it prohibit that law that a require was construed threat realistic and intent and action circumstances the threatened if executed. was qualified, would be unlawful Even this The law that referred paragraph however. Illinois any “to commit criminal expressly threats offense” proved provision to be one the court invalidated as did so on the ground although overbroad. court might penalize petty have valid even state reasons committed, actually if reasons not offenses these would a threat in the always justify punishing to act forbidden manner, street, carry a for instance to block concealed disorderly or to 280 F at weapon, engage Supp conduct. Landry opinion 964. Thus the concluded that the statute validly prosribed only independently wrongful “threats” conduct, and then if limited to exclude so as minor relatively inconsequential This conclusion wrongdoing. rejects power threatening broad state to restrict implicitly speech simply prevent order to the immediate evil of effect, a protective wrongfulness coercive aim to which the of the threatened conduct seems irrelevant.20
It must be remembered that
the Illinois statute did
the element of selfish
found in the extor-
require
gain
Landry
clearly
But
tion statutes discussed above.
court
application
troubled
one
the statute
threats of
was
quite
illegal
gains,
serious
action for material
case of
only by
It
doubts
escaped
threatened unlawful strike.
its
held,
decision,
appellate
contrary
subsequent
to the
In a
an Illinois
court
*22
authority’
assumption,
phrase
upon
Landry
that “the
‘without lawful
court’s
analysis
in his
the intimidation statute is not an element of that
defendant relies
560,
1282,
Hubble,
(Ill App
App
People
1285
Ct
v.
Ill
3d
401 NE2d
offense.”
81
1980).
bring
conviction of a
who threatened to
The court sustained the
defendant
testify
support
against
agreed
charges
unless
in
his
wife
she
not to
criminal
former
charges
against
had initiated
him.
of criminal
she
carry
privilege
his threat
the defendant’s
out
The Illinois court held that
improper
immaterial;
influence
the threat
to “exercise of an
it was the use of
was
opinion
gravamen
427
analysis.21
evading
again
overbreadth
the method of
once
understandable,
in relation
because
The court’s caution is
organizational
rights,
the
activities
labor,
and other
to
potential
civil
coercive
threats or other
reach of laws
expression
have resisted
issues that
raises constitutional
analysis
cogent
federal first amendment.
clear or
under the
prosecution,
State,
v.
519
In one recent
Moore
(Tenn 1975),
charged
threats
SW2d 604
defendant was
with
amounting
that a food
to extortion when he demanded
organization,
Panther
store contribute to his
Party, assertedly
the Black
store,
programs.
for charitable
When
manager put
say
decision,
off a
defendant was heard to
to a
companion:
guess
up.”
“Well, I
we’ll have to close them
picketed,
consequent
Thereafter the store was
loss
rejected
objection
business. A Tennessee court
defendant’s
picketing
privileged
that the
was
under the first amendment
grounds
pressure
on the
that defendant intended “to
contributing money
store into
to his cause” and that
contribute,
store should be free not
knowledge
in
“secure
forthcoming
that no retribution will be
under
guise
protection.”
of constitutional
428
threaten, coerce, restrain” a
party
who is not a
to
a labor dispute. NLRB v. Retail Store Employees, 447 US
607,
2372,
(1980).
100 CtS
Moore’s conviction was sustained in subsequent
federal habeas corpus proceedings. The district court denied
relief because Moore was “not convicted for his picketing
activities
for
but
threatening
picket
to
for
purpose
of
extorting
payment.”
Newell,
Moore v.
F Supp 1018,
401
(1975).
1021
The court
it
thought
immaterial whether peti
tioner sought
payment
to enrich himself or for charita
purposes.22
ble
The Court
Appeals
affirmed, apparently
theory
on the
that a constitutional
privilege of picketing
exists for publicizing
dispute
“a
or grievance with a busi
ness,”
that
but
a merchant’s
refusal
to contribute
to a
charitable
cause was not
such a grievance.23 Moore v.
Newell,
671,
(6th
1977).
548 F2d
672
Cir
implies
This
either
that a privilege
picket,
not
to
but to
so,
threaten to do
precisely
arises
from a demand for selfish material gain, for
instance a demand for higher wages or contributions
to a
fund,
health or pension
or perhaps
that
the privilege is
limited to such demands on behalf of employees or others
in dealings with the enterprises
as such. But
there is no
special right
“speak
to
freely”
write
on subjects limited
to labor relations.24 In Organization
a Better Austin v.
for
Keefe,
415,
402
1575,
US
91 S Ct
(1971),
Similar
issues have arisen
laws
applying state
against
to organized boycotts
coercive action
in the context
of race relations. Since this
was argued,
case
the United
Supreme
States
Court has
a
judgment
reversed
civil
for
damages awarded to retail merchants
for loss of business
resulting
boycott
from consumer
organized
support of a
list of demands for
by
actions
various community institu-
tions. National Association
the Advancement
Colored
for
Co.,
People v.
Claiborne Hardware
458 US
102 S Ct
73
boycott
LEd2d 1215
preceded by
The
was
demand on the merchants
for support
by
backed
the threat
of a
buying
“selective
The
campaign.”
Mississippi Supreme
rejected
Court
the defendants’ constitutional
claims
the
first,
grounds,
the
boycott
demands and the
not
did
relate to a direct grievance
the
against
merchants
but
demanded
support
political
by
their
for
actions
the commu-
nity,
second,
and
by
that defendants violated a criminal
law
bodily
others with
threatening
harm to intimidate or coerce
participate
boycott.
them to
in the
N.A.A.C.P. v. Claiborne
Co.,
1981).25
(Miss
Hardware
393 So2d 1290
The United
25
issue,
in Southern
On the first
Christian
the court followed its
decision
(Miss 1970),
Corp.,
v. A.
Leader.
Inc.
G.
241
it said that
So2d 619
Conf.
the “whole
with
trouble”
a constitutional defense was “that
these defendants had
complaint
grievance
gripe”
plaintiffs boycotted
no
retail
even
241
store.
So2d at 624.
violation,
statutory
the court relied on its decision in Shields v.
As to the
State,
(Miss 1967),
gist
So2d
which described the
of the offense
“threatening
purpose
intent or
to intimidate”
“words or acts calculated
ordinarily prudent
person
injury
and intended to cause an
and firm
to fear an
property.”
“ordinarily
If
his
So2d at
81.
reference to an
Supreme
damages
must be limited
States
Court held
The
those attributable to violence.
verbal elements
boycott
privileged
their
did not lose
character because the
boycott
organizers “sought
persuade
join
others to
pressure
through
of social
social
‘threat’
ostracism”
meetings
publicizing
nonparticipants
such as
names of
at
“Speech
protected
newspaper.
and in a
does not lose its
simply
...
because it
others or
character
embarrass
action.”
con-
coerce them into
To to the variables identified at the return we *25 money outset, the fact the demand is for that threatener’s robbery by gain or other selfish is a central element threat, it alone not con- blackmail and extortion. But peaceful picketing by implica- and clusive, for informational speech picket designed when to tion the threat to are free legally permissible gain payments bene- financial other fits. any seem
Nor does other element alone conclusive. Supreme picketing perhaps picket- decisions, In Court’s ing particular the dis- as the form of communication is tinguishing element; it is doubtful that the unlawfulness | pam- suppression objective equally permit would phlets stating the demand and the or other verbal forms of stop patronage. Compare N.A.A.C.P. v. threat work or Organization supra; Co., v. a Better Austin Claiborne prudent person” implies must that the I firm the circumstances he such and imminent, corresponds injury to the actual seems this infliction the threatened | Landry Daley, supra. reading statute in v. held to save the Illinois intimidation engage illegal But a demand that another Keefe, supra. close to solicitation to crime and be forbid- acts can come analogous generally, den within constitutional limits. See Greenawalt, Crime, 655-670, 689-690, Speech supra, and 742-751, Emerson, System The of Free compare Expression 401-412
The Illinois Intimidation Statute was saved in Landry Daley, supra, premise v. on the it forbade creating threats of unlawful action under circumstances action; realistic fear found the again, of such but court element of alone respect unlawfulness insufficient with relatively offenses, threats of minor and it balked at extend- ing premise this to threats of an unlawful strike. Its hesi- tancy may suggest a notion that labor relations constitute special potentially analysis decisive element in the apparent demands and threats. There is no reason so to limit a privilege. drafters of the American Law Institute’s Model Penal Code believed that categories “some Moreover, of threats. . . should obviously privileged.”26 Landry premise court’s contrary seems to the inter- pretation given the Illinois statute the state’s own Hubble, courts. People See n. supra, 20. Whatever dif- ference labor or race special relations or other universes of law, I, discourse make in the federal case article section speak, write, extends freedom to or print any “on subject whatever.” Application
VI. of Article section 163.275. sum, In our review of the cases that have tested against extortion, intimidation, laws or coercion under the Code, 212.5, The definition of “criminal coercion” in the § Model Penal provide: would (b), (c) prosecution paragraphs “It is an affirmative defense to based on (d) proposed the actor believed the or secret true accusation to be or the justified purpose compelling official action and that was his limited way reasonably other to behave in a related were circumstances which accusation, action, subject exposure proposed official misbehavior, done, desisting making good wrong refraining from further any responsibility taking action or for which actor believes the other disqualified.” *26 1962) Code, (Proposed May §212.5 Model Penal Official Draft at 140-41. defense,” We note that the Model Penal Code an “affirmative when evidence, supported by by proof beyond a reasonable doubt. See negatived must be (Tent. 4, 1955). commentary Model Penal Code at § 1.13 Draft No. yields first amendment principled guidance no on freedom to state expression coupled verbal demands with verbal threats. A statute or other escape potential rule does not solely overbreadth prop- because it deals with for demands erty benefits, or because it is involving limited to threats conduct, unlawful because it is directed the use intimidating words or expression means of such as picketing. Each element the potential infringement narrows expression, element, alone, of free but each standing encompasses free expression under some circumstances.
The state argues 163.275(l)(e), spe- that ORS cific provision under which the present charge brought, is can be saved if it is interpreted to forbid threats defamatory make if disclosures the threatener’s demand is points not met. The state to statements before the Criminal Law Revision Commission to show that the commission appar- was aware of the Illinois intimidation statute and ently Landry Daley, supra, argues despite and it the absence in 163.275 words “without lawful authority” upon Landry which the court sustained the statute, the Oregon given law could and should be so; equally interpretation. Perhaps limited the argument but question misses the mark. The is not whether the threat- ened disclosure in case of sometimes noncompliance would privileged. said, As we have the statute is not concerned consequences with the actual occurrence of the threatened 163.275(l)(a)-(i); listed in ORS several items in that list are only legally privileged legal but duties. When the prohibition concerns the use of verbal threats of disclosure consequences comply other induce order to another demand, Landry with a verbal we do not court’s share expression hinges legality conviction that freedom of on the question of the threatened action.27 The therefore prohibition speech whether this reaches instances of free so to render the statute overbroad. depend prohibition on the unlawful character of To make the of “coercion” prosecution complicate proof in a the burden of the threatened act also would instance, 163.275; require proof beyond might, a reasonable doubt it under ORS defamatory threatened would be or that other the threatened disclosure they hypothetical circumstances under which be unlawful under the acts would Landry reading might court’s view further doubt on be carried out. This casts (l)(c), beyond into ORS 163.275 subsection of unlawful intimidation requires expressly it.
433 the constitutional To we believe recapitulate, write, freely any subject what speak, print to or right 8, I, not meant to guaranteed in article section was ever respects of words in some relevant to immunize the use said, is the we have one of these use of 163.275. As ORS indisputably have been a in the of what would words course Oregon’s Rights when Bill of was conventional crime 1859, or in the course of similar kinds of adopted may time to crimes that lawmakers from time conventional of words in the course of enact.28 This includes use out, concealing other soliciting, attempting, carrying I, article 8 would not foreclose a crimes. Therefore section form, statute, criminal otherwise valid made it to by another commit an offense threats or other compel to in which the demand is verbal means under circumstances compulsion realistically meant to be and the followed statute, In the actual or plausible. such the focus is on offense, compelled pro not on probable commission tecting hearing threats.29 speaker’s addressee 163.275, however, such a It is not statute. is not performance act, of the compelled concerned with the which the statute require does not to unlawful. said,
As we
have
analogous
also
blackmail or
forms
by
of extortion
among
threats are
the conventional crimes
I,
8,
that survive article
despite being
by
section
committed
legislature,
course,
verbal means. The
of
revise these
crimes and extend their
to
principles
contemporary circum-
stances or
If
people
sensibilities.
it was unlawful
to defraud
lies,
instance,
speech
crude face-to-face
for
free
allows
legislature
leeway
some
to extend the
principle
fraud
to
28We refer
imply
to “conventional” crimes
as not
so
that constitutional
expression today
freedom
does not
extend
crimes known before the Bill of
libel,
Rights, such
public
as
seditious
criminal
restrained freedom of
disclosure and debate.
29
remedy
providing
such,
As
impact
for harm done
of words as
I,
speaker
liability
article
section
8 does not immunize a
or writer
civil
person “by
injury
person,
another
property,
due course of law for
done him in his
reputation,”
10,
provided
injurious
qualify
article
section
when the
words
“responsible”
expression
as an “abuse” of
freedom
one can be held
Co.,
meaning
May
131,
Dept.
within the
8.
section
See Hall v.
292
Stores
Or
637
(1981) (tortious
P2d 126
infliction of emotional distress
verbal intimidation and
threats),
Green,
(defamation),
supra,
Billing
Wheeler v.
n. 9
v.
Turman
Central
Bureau, Inc.,
(abusive
(1977)
methods).
279 Or
434 by contemporary
sophisticated means. lies communicated interpretation clauses locks neither Constitutional of broad guarantees powers of nor the of civil liber- lawmakers historic forms in the 18th and 19th ties into their exact long to the centuries, as as the extension remains true principle. e.g., Kessler, See, v. Or 614 State 289 initial (1980) (definition §I, of “arms” within Or Const art P2d 94 27); Jones, P2d 611, ex Russell v. 293 Or State rel (1982) counsel); Sterling Cupp, (right Or 13). (1981) rigor” (“unnecessary §I, art P2d 123 under speech extending “subjects” an old crime to wider When writing, however, there is need for care that the exten- or sion perhaps analogue and, behind leave its historical
does inadvertently, privileged reach instances of *28 expression. by the
Blackmail and extortion were characterized objective obtaining property a from use of threats for robbery, private, in in transaction akin to victim a bilateral parties’ relationship gives the threatener neither which a obliges legitimate pressing basis his demand nor apart it from the threat. addressee to hear and consider speech immunize the freedom of did not Constitutional private a and threats in such communication of demands setting. principle That has survived. principle may beyond
Legislatures extend the property objects The extortion of to other of extortion. example. conduct is an obvious See extortion of sexual charge supra. Felton, in the That is the actual State coercing present case, are in which defendants accused “expose threatening to a the victim sexual conduct into publicize [not fact further described secret and asserted subject indictment] [her] which would tend to in the hatred, contempt, this could be and ridicule.” No doubt validity prohibited, if us the issue before were validity charge it statute under which rather than the of the objects potential brought. is But as a statute broadens relationship parties demands, the between the of forbidden important. becomes more relationships person is in are few
There by private constitutionally privileged demands, insist, threats of otherwise unrelated sanc- coupled private tions, he under no property that another turn over when is so, duty legislature pains exempt to do and the took legal the kind action in support group threats of of collective upon demands a business that have troubled courts in the strike, boycott, 163.275(1)(f), picketing and cases. ORS supra. relationships, There be more within and outside free family, speech in which it is an exercise of to demand property, that a refrain or refrain person turning from over conduct, particular consequences from sexual or face The right expression kind listed ORS 163.275.30 of free many in their important people personal institu- relationships tional as it is in the narrower “civil liberties” politics, related to in article section nothing suggests that it is limited to the latter. variety of arguably privileged expression pro
liferates when the statute is broadened to cover all demands “to engage in conduct from which has a [the addressee] legal right abstain, or to abstain from engaging conduct which he has legal right to engage.” It is this extension that encompasses most of hypothetical exam ples drawn politics, journalism, family or life academic cited defendants and the dissenters in the Court of Appeals to demonstrate the overbreadth of ORS 163.275. Moreover, apart from reaching such relationships, the stat ute makes no distinction whether the coercive demands and threats are addressed one private to another in a correspondence confrontation or or in a public more or less *29 setting designed to inform and perhaps involve others in posed by issues the demand and the potential sanction. Yet such a setting often will protected involve communica tion with this wider audience.
Accordingly, we cannot escape the conclusion that ORS 163.275 as written reaches areas constitutionally of. privileged, Even where may such settings demands are there be few where they may coupled injure be person with property, threats or ORS 163.275(1) (a) (b), above, although, as noted these subsections are not confined wrongful injuries, they to threats coupled of or where with threats of crime, 163.275(c). constituting Possibly conduct privileged expression ORS under protected those recognizing exceptions subsections could be coverage to their overbreadth, rather question than pre invalidation for but is not now sented. coverage invalid unless its expression and thus is
privileged areas. We also conclude that narrowed to exclude these narrowing the needed cannot be in the case of this statute preceding The accomplished by judicial interpretation. the sources of the statute’s over- has identified paragraph cover all principle of extortion to extending breadth in nonobligatory to refrain from action demands to take or in case of consequences with threats of adverse coupled whether these and threats are noncompliance, demands the rela- publicly irrespective privately stated public. or with the tionship parties themselves Code undertook to narrow its version Model Penal situations by excluding “criminal coercion” which or official sanction is purpose of the threatened disclosure ways reasonably limited to another to behave in compelling the circumstances of the demand and the threat. related to 212.5, note 26. supra the affirmative defense in section See solution, particular mean to endorse that We do not development of overbreadth antedates much of modern event, speech. any In analysis restricting of statutes the Model Penal Code Criminal Code did not follow Oregon only but respect privileged threats of disclosure prosecution a narrower defense limited to threats of created made to secure restitution.31
We cannot substitute a wider set of exclusions for 163.275, those chosen knowingly drafters even assuming such wider exclusions rather than nar precise rower and more affirmative are the chosen coverage within means to confine the statute constitutional bounds. simply by adding implying can the statute be saved Nor any in which apply a limitation that it does not situation “right speak, application its would restrict accused’s write, freely any whatever” within the print subject guarantee implied of article section 8. Such an limitation vagueness; trades overbreadth for it abandons 31 ORS163.285: by instilling in any prosecution the victim coercion committed “In crime, charged defense with a it is a would be fear that he or another reasonably charge to be true and the threatened the defendant believed compel purpose the victim to take reasonable or induce that his sole was to subject good wrong the threatened which was the make action to charge.”
scrutiny altogether of the statute case-by-case for adjudica- tion, contrary to command that no law restricting this is, therefore, “shall be right passed.”32 It in the first instance a legislative responsibility and clarify narrow of a coverage statute so as to apparent eliminate most applications speech to free writing, leaving marginal and unforeseeable instances of unconstitutional applications judicial exclusion.
The circuit court did not err in sustaining defen- dants’ demurrer. The decision of the Court of Appeals to the contrary reversed, is and the case is remanded to the circuit entry court of a judgment pursuant to ORS 135.660,
PETERSON, J., concurring.
I concur with majority’s analysis insofar as it applies 167.275(l)(e). to ORS below, As will appear I am not convinced that ORS 167.275 is constitutionally defec- tive in all parts, its and therefore write separately to set forth the bases for my conclusions. One reason for the problem in this case is the awkwardly statute, written 163.275. Using the subpart under which the charge was brought for illustration, it appears the statute has three elements: 32As Professor exception Tribe has “fighting written with reference to the speech:
words” from free “To construe a statute reference to such a fact-oriented standard is to
inject vagueness an excessive element of into the law because the standard shape only proceed itself retrospective, case-by-case takes as courts on a basis interplay vagueness] sharply between “[The overbreadth and is most hypothetical say anything focused in a public ‘It statute: shall be a crime to speech protected by unless the amendments.’ This first fourteenth guaranteed since, terms, statute is literally not to be overbroad its it forbids nothing protects. problem that the Constitution . . . The with that solution is simply exchanges (footnote omitted). vagueness.” it overbreadth for Tribe, American Constitutional Law 716 Tribe therefore concludes that the implied constitutionally protected case-by-case exclusion of behavior in decisions validity proportion save the of a statute when such instances are rare in to the legitimate applications speech, identifiable of a law not directed at for instance prohibitions trespass peace, or breach of the but that it cannot save statutes literally proscribe privileged expression, that leaving unprivileged wide areas of as well as speculate escape proscription. actor to whether his words Id. at 714-716. expose A threat the defendant
1.The threat: tending subject publicize some secret contempt. *31 by defendant that A The demand
2. demand: engage he or she in from conduct the one threatened right legal will be carried out. to or the threat a abstain has instilled with is one threatened The The action: 3. engages conduct. the demanded fear and statutory a in this case is element involved The expose publicize fact, true or a whether to threat secret person tending subject hatred, to false, the threatened 163.275(l)(e). contempt the statute ridicule, Unlike ORS (ND 1968), Landry Daley, Supp F Ill 280 938 involved speech which is otherwise at condemns the statute bar lawful. opinion majority appears to invalidate the right
entire statute its reach because into the of free expression “narrowing broad, is over much so so that cannot accomplished by interpretation.” judicial agree be I that the (l)(e) statutory protected speech into incursions are so satisfactory way judb substantial there exists no (l)(e) dally severing applications constitutional applications. creating unconstitutional The alternative of case-by-case constitutional boundaries on realistic basis is not a regulation one, for “the contours of would have to case-by-case be hammered out tested those —and hardy enough prosecution criminal risk determine proper scope regulation.”1 may
Other
subdivisions of
167.275
be immune
fatally
from the overbreadth conclusions that
fetter subsec-
(l)(e). Chaplinsky
Hampshire,
568,
tion
v. New
US
315
62 S
(1942), suggests
766,
Ct
86 L Ed 1031
that other subsec-
may
Supreme
valid,
tions of
statute
be
for the
Court
upheld
“offensive,
there
statute which forbade
derisive or
lawfully
annoying
any
any
word
other
who is
* ** public place.” Although
federal
later
decisions
1
Pfister,
4Y9, 487,
116,
(1965).
Dombrowski v.
85
Other sections overbreadth, possible or it stitutionally infirm for more of of one or a construction adopt a court The extent the statute.3 which will save other subsections imposition of permits section Article to which statute is under other subsections liability criminal (l)(e) Therefore, I concur though before us. I opinion, majority in the reasons set forth invalid for the necessarily subsections are the other agree do not invalid.
Tanzer, J.,
opinion.
in this
joins
*32
2
Curators,
1197,
University
Popish
v.
Missouri
93 S Ct
35
See
410 US
Wilson,
(1973), Gooding
2d
L Ed
408
US
92 S Ct
L Ed 2d
(1978),
Tribe,
cases cited
See
710-716
American Constitutional Law
therein.
notes
Estates,
Village
supra,