State v. StonemanState v. Stoneman
Lead Opinion
In 1985, the legislature enacted a criminal statute directed at the producers, purveyors, and purchasers of visual reproductions of children engaged in sexually explicit conduct. In 1990, defendant was charged with violating one section of that statute, codified at
“(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, videotape 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.”1
Defendant demurred, arguing that
We allowed the state’s petition for review in order to address the constitutional question posed by this statute. For the reasons that follow, we conclude that
It is important at the outset to note that the portion of
A necessary consequence of those legislative limitations is that the photographs and films described in
Ultimately, it is that fact that frames the central legal question posed by this case: Did the focus of
To answer that question, we begin, as did the court in Henry, by noting the breadth of our state’s constitutional guarantee of free expression. The text of that guarantee extends not only to written and spoken communications, but also to verbal and nonverbal expressions in film, photographs, and the like. Henry,
“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,
We think, however, that the balancing approach for which the state contends is so contrary to the principles that have guided this court’s jurisprudence respecting freedom of expression issues under Article I, section 8, that it cannot be countenanced. It is axiomatic that, among the various interests that the government of this state seeks to protect and promote, the interests represented by the state constitution are paramount to legislative ones. Consequently, a state legislative interest, no matter how important, cannot trump a state constitutional command. See Oregonian Publishing Co. v. O’Leary,
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
We begin that exercise by deciding whether
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. See discussion below at 544-45; State v. Moyle,
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. State v. Plowman,
The Court of Appeals majority concluded that
The flaw in that analysis is that it asks more of the statute in question than is required by Article I, section 8. 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
Under the first category, the statute could pass constitutional muster only if the restraint that it imposed falls “wholly” within some historical exception. The state points to and relies on Statutes of Oregon 1854, chapter XI, section 10, pp 210-11, as establishing an “historical exception.”
With respect to this second category, we think that it is clear that
It is true that, when viewed in isolation,
We note, first, that
The legislature’s enactment of
“It is an affirmative defense in any prosecution underORS 163.680 alleging the obtaining or viewing of a photograph, motion picture, videotape or other visual reproduction of sexually explicit conduct by a child that the production of the photograph, motion picture, videotape or othervisual reproduction did not violate laws prohibiting production of such visual reproductions in the jurisdiction where it was produced and that, if imported into the United States, was done so lawfully.” 13
That is,
Other parts of the context in which
“(1) A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels, and or induces a child under 18 years of age to participate or engage in sexually explicit conduct for any person to observe or to record in a photograph or other visual recording.
“(2) Violation of subsection (1) of this section is a Class A felony.”14
For example,
The consistent repetition of the legislature’s theme establishes that, not only the basic forbidden act described at
We conclude that
We already have noted that
We hold that Article I, section 8, of the Oregon Constitution, does not prohibit the legislature from protecting children from sexual exploitation, even when that exploitation ultimately is shared with others through some expressive device.
The decision of the Court of Appeals is reversed. The case is remanded to the circuit court for further proceedings.
Notes
Article I, section 8, provides:
“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.”
Defendant argued below that the term “visual reproduction” in
In 1990, “sexually explicit conduct” was defined as “actual or simulated:
“(1) Sexual intercourse or deviant sexual intercourse;
“(2) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;
“(3) Penetration of the vagina or rectum by any object;
“(4) Masturbation;
“(5) Sadistic or masochistic abuse; or
“(6) Lewd exhibition of the genitals or anus.”
The dissent takes a completely different view of the meaning and scope of the word “simulated.” Even if we were to agree that the dissent’s interpretation of the word were a reasonable one — and, reading the word in its statutory text and context, we do not — the dissent’s argument would not go where the dissent wishes to go. Two plausible readings would require this court to resort to legislative history. PGE v. Bureau of Labor and Industries,
In Henry, this court concluded that expression cannot be outlawed solely on the ground that it is obscene.
The foregoing conclusion rejects the state’s contention that the reference in Henry,
Of course, an enactment may fit only partly within an historical exception. In such a case, the enactment still must be scrutinized and invalidated to the extent that it forbids privileged speech or expression.
The “incompatibility exception” is not implicated in this case.
The Court of Appeals likened
One of the dissenting opinions in the Court of Appeals agreed with that argument. State v. Stoneman,
Subjecting children to sexual conduct is a crime under a number of Oregon statutes. Under
While we speak here of criminal statutes, because
Both
This conclusion is consistent with the rationale of City of Eugene v. Miller,
“The city also is wrong when it contends that ‘the analysis in this case is the same whether the commodity involved is joke books or furniture.’ A limitation on the sale of furniture does not implicate the same free speech concerns that are implicated by a limitation on the sale of goods that are themselves protected as expression under Article I, section 8.”
See, e.g., Laurence Tribe, American Constitutional Law, ch 12, §§ 12-16, 915 n 71 (2d ed 1988):
“Until recently, research and writing stressed, for example, the rather tenuous link to crime by the viewer or reader of the obscene. Consistently overlooked as a rationale for banning at least some types of films had been the link to crime by the persons being filmed. Governmental power to prevent murder, rape, and child abuse, for example, should imply power to destroy the primary economic incentive for a distinct category of abusive acts: the desire to film the criminal abuse itself for the titillation of a potential audience jaded by its satiation with other sights and sounds. Although governments cannot be allowed the circular argument that films of consenting adult sex should be banned in order to diminish an economic incentive for fornication that might be too private to be punishable but for the fact that the acts are being filmed for viewing by others, no circle is involved when the argument is applied to films of child torture and mutilation. * * * It should oe noted that this rationale does not apply to descriptions as opposed to actual photographs or recordings. Nor does it apply to films of simulated acts, or to films of conduct causing no harm other than that supposedly caused by the act of viewing.” (Emphasis in original.)
We note that various federal laws — for instance, the laws forbidding copyright infringement and commerce in trade secrets — regulate communicative material under the foregoing rationale. See American Booksellers Ass’n, Inc. v. Hudnut, 771 F2d 323, 332 (7th Cir 1985) (noting that a motion picture that is the product of coerced activity could be banned as part of the underlying coercion), aff'd
We emphasize again that the permissible reach of this statute extended only so far as is required for the protection of children from the harm inherent in sexual exploitation.
Dissenting Opinion
dissenting.
I agree with several of the conclusions that the majority reaches in its analysis of this case and therefore mention them briefly. I join in the majority’s rejection of the state’s invitation to incorporate a balancing of competing interests into this court’s Article I, section 8, jurisprudence. I agree that the rights protected by Article I, section 8, apply to verbal and nonverbal expression in films, photographs, videotapes, and similar media.
However, the majority gets off on the wrong foot by declaring that
I turn first to the issue of the proper construction of
The obstacle that defeats the majority’s proposed construction of
In overview,
The majority fails to address the significance of the term “simulated” in the statutory definition beyond its imponderable ipse dixit that “[m]oreover, the child’s participation in the act must be real, i.e., the sexual act may be ‘simulated,’ but the child’s participation in that act cannot be.”
A dictionary defines “simulated” as:
“[0]f a feigned or imitative character: MOCK, SHAM * * *.” Webster’s Third New Int’l Dictionary, 2122 (1993).
The noun form of the term, “simulation,” is defined as:
“la: the act or process of simulating: IMITATION, PRETENSE * * * b: a sham object: COUNTERFEIT * * * 2: willful deception: COLLUSION, MISREPRESENTATION 3: one that shows a superficial resemblance: ANALOGUE * * *.” Id.
In addition to applying those definitions, we are bound to give effect to the other words in the statutory phrase in question, “actual or simulated.” The term “simulated” applies to all visual representations that do not involve “actual” sexual conduct. The conjunction “or” signifies that the definition applies equally to visual representations of “actual” and “simulated” sexual acts or any combination of those two categories. Properly understood in view of the ordinary meaning of the statutory terms, the phrase “actual or simulated” incorporated the full spectrum of visual representations of sexual conduct, ranging from those that involve genuine sexual behavior in their production (that is, “actual”) to those that consist entirely of a false pretense or misrepresentation of the occurrence of a sexual act when, in fact, no sexual act of any kind occurs during their production (that is, “simulated”). Between those poles, the phrase, in substance, includes any visual representation that appears to display a
The word “simulated” in this context embodies a restriction that is remarkable in its requirement — compelled by every dictionary definition of that term — that the film be one that misrepresents the occurrence of a sexual act. The production of some visual representations of a simulation of a sexual act by a child could involve the child in conduct that actually harms the child. However, the statute did not specify in terms, as an object of regulation, either the films that fall in that category or any harm to children that their creation entails. That is no inconsequential legislative oversight, particularly in the context of speech regulation, where clarity of expression is a constitutional value of the highest order. The legislature cannot forbid all speech about a “simulation” of a subject of expression and thrust on the court the task of scavenging the dictionary for any possible way to read the restriction to save its constitutionality. That is less the proper interpretation of the ordinary meaning of the legislature’s terminology than the substitution of the court’s own preconception of a proper restriction on sexually explicit speech.
Contrary to the majority’s premise, we cannot say that every visual representation of a child in a simulated sexual act necessarily depends for its existence on conduct that harms the child. In the latter context, a simulation may consist entirely of film images that portray a real child engaged in what appears to be sexual conduct but what is, in reality, not sexual or otherwise harmful conduct. For example, a film may portray a realistic image of what appears to be a sexual act by a child when, in reality, the image is a mere simulation created from film of an actual child innocently playing, dancing, or sleeping while fully clothed. In that circumstance, the conduct of both the child and film producer is perfectly lawful and not harmful to the child, yet the statute criminalized commerce in such a film.
Only by misconstruing the statute can the majority evade the restraint on expression that the statute embodies. The majority construes the phrase “actual or simulated” to mean “actual.” As a result, the majority concludes that the statutory definition of “sexually explicit conduct” extends
The majority purports to find support for its statutory interpretation in a review of statutes other than
The majority’s misconstruction of the statute leads it to commit other significant errors of constitutional magnitude. The majority holds that the statute did not focus on the content of films and photographs but, instead, focused on a harmful effect of those communicative materials, the “actual” sexual abuse of children. See State v. Stoneman,
The flaw in that logic is that the statute, by its terms, equally punished commerce in material, the production of which involves either a genuine sexual act or a pure misrepresentation of the occurrence of a sexual act. A “simulated” sexual act is, by definition, one in which no actual sex act occurs. The majority fails to explain how a simulation
The majority attempts to rationalize its answer by effectively erasing the words “or simulated” from the statute. We are forbidden to do that.
“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted * * (Emphasis added.)
The majority’s evasion of the actual focus of the statute permits it to set up a false issue {viz., “[m]ay the legislature regulate commerce in communicative products derived from the actual sexual exploitation of children?”)
The Court of Appeals held (correctly in my view) that
The state contends that the statute qualified as a valid regulation of a harm of speech, because it protected children from the effects of child abuse in the production of films and similar materials. I agree that a law may forbid speech if
The Court of Appeals correctly relied on Tidyman in striking down this statute. In Tidyman, this court declined to examine prefatory findings that accompanied an adult book store ordinance to discern the types of harm that the ordinance purportedly restrained. Examination of the operative text of
If a statute restrains privileged speech but also restricts harmful effects, such as child abuse, that the legislature may proscribe, we must determine whether we can interpret the statute to avoid such overbreadth. Robertson,
In conclusion,
I dissent.
In this opinion, I use the word “film” to refer to all forms of visual reproduction that are included within the coverage of
“(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, videotape 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.”
“As used inORS 163.670 to 163.690, ‘sexually explicit conduct’ means actual or simulated:
“(1) Sexual intercourse or deviant sexual intercourse;
“(2) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;
“(3) Penetration of the vagina or rectum by any object;
“(4) Masturbation;
“(5) Sadistic or masochistic abuse; or
“(6) Lewd exhibition of the genitals or anus.”
The roots of
“ ‘Sexual conduct’ means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.”
The Court did not address the significance, under the First Amendment, of the term “simulated” in the definition except to state, without explanation:
‘We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection.” Id.,458 US at 764-65 .
Moreover, the First Amendment overbreadth analysis followed in Ferber bears little resemblance to this court’s overbreadth analysis under Article I, section 8. See State v. Robertson,
Following the decision in Ferber, the Oregon legislature adopted
“actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital or oral-anal intercourse; bestiality; masturbation; sadistic or masochistic abuse; or lewd exhibition of the genitals.”
I do not contend, as the majority asserts,