Oregon State Bar Bulletin ó OCTOBER 2003

Free Speech in Oregon
A framework under fire
By William R. Long

On Nov. 3, 2003, at Linfield College, the Oregon Supreme Court will hear oral arguments in two cases that could dramatically curtail the generous protections afforded free speech under Article I, Section 8 of the Oregon Constitution.1 At stake are not just the particular practices disallowed in the two cases, but whether Oregonís 21-year-old framework for adjudicating free speech claims has outlived its usefulness. Complicating matters is the fact that this framework, the Robertson framework, has given Oregon a unique national reputation as one of the states most protective of free speech rights. See State v. Robertson, 293 Or 402, 649 P2d 569 (1982).Thus, when all is said and done, what may be an unspoken but influential factor in the ultimate resolution of these cases is how the court responds to what one might call the myth of Oregon exceptionalism. Will this belief in Oregonís uniqueness, powerful in our political culture, find a footing in Oregonís free speech doctrine in the 21st century?

The Cases
The vehicles that will help the justices probe these issues are two cases from smaller Oregon towns. The first, decided by the Court of Appeals in April 2002, has to do with the constitutionality of an Oregon statute prohibiting live sex shows, while the second, decided a few months later, concerns a Nyssa city ordinance prohibiting naked dancers from coming within four feet of patrons while they dance.

In State v. Ciancanelli, 181 Or App 1, 45 P3d 451 (2002), an owner and operator of a Roseburg business offering live sex shows was convicted of, among other things, violating ORS 167.062, which prohibits the promoting of unlawful sexual conduct in a public show. On appeal he argued that the statute prohibiting these shows violated Article I, Section 8 of the Oregon Constitution ('I, 8').

In the majority en banc opinion upholding the constitutionality of the statute, Judge Landau opined that if live sex shows were considered conduct and not speech or expression, they would not be covered by I, 8. However, even if the court considered a live sex show to be expression, such a show would not be protected under I, 8 because the framers of the Oregon Constitution would not have permitted it. In the technical language of the Robertson framework, to be discussed below, the scope of the restriction (the statute prohibiting these shows) was 'wholly confined' within a 'historical exception' in place in 1859 which was not displaced by the passage of the Oregon Constitution. Much of Judge Landauís opinion consisted of citations of statutes, cases and treatises from the 19th and earlier centuries showing that practices similar to live sex shows were proscribed in most American states before and after 1859.

A few months later, a slightly different en banc majority of the Court of Appeals held that a Nyssa city ordinance requiring naked dancers to stay at least four feet from their patrons while dancing did not offend I, 8. City of Nyssa v. Dufloth/Smith, 184 Or App 631, 57 P3d 161 (2002). Rather than engaging in another detailed historical survey, the majority opinion simply cited the voluminous research of Judge Landau in Ciancanelli to buttress its decision. Both cases therefore anchored their opinions on the so-called historical exception of the Robertson framework. What makes the appeal to this exception so novel in Ciancanelli and City of Nyssa, however, is that the Oregon Supreme Court has never permitted the use of the exception to disallow any act of expression in Oregon. Under the guise of dispassionate historical research, then, the Court of Appeals is directly confronting the Supreme Court on one of its most long-standing and universally affirmed frameworks.

The Robertson Framework and the Historical Exception
Oregonís framework for analyzing free speech claims sprung forth without obvious signs of legal or historical derivation from the fertile and creative mind of Oregon Supreme Court Justice Hans Linde in 1982. Blessed with a rare combination of scintillating intellect, affable personality and coalition-building skill on the court, Justice Linde helped usher in the so-called state constitutional revolution of the 1970s and 1980s in Oregon and in American law generally. His 1982 opinion in State v. Robertson was the prime example of the state constitutional revolution as applied to the free speech provision of the Oregon Constitution.

In the context of discussing the constitutionality of a coercion statute, Justice Linde laid out the two basic principles for analyzing free speech claims under I, 8. First, when a court considers a statute that prohibits the substance of any opinion or any subject of communication (i.e., a 'pure speech' statute), that statute must be unconstitutional 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 at 412. He gave the following examples of pure speech statutes that would be 'historical exceptions' under his test: statutes prohibiting perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.

What the quotation indicates to the careful reader is not simply that a test for free speech is in view but that the literary style of Justice Linde is often so elusive and even not fully coherent (is it 1791 or 1859 or both that is in view in the quotation?) that no one was fully clear on what he meant. What is meant, for example, by a law that is 'wholly confined' in another law? One immediately conjures up a picture of Russian nesting dolls, but that certainly is no help. Or, what does it mean that the guarantee in 1859 (presumably the Oregon Constitutional provision) was 'demonstrably' not intended to reach to certain proscribed conduct? Who demonstrates? What is to be demonstrated? With which texts is one to demonstrate something?

In any case, historical exception analysis under I, 8 became an immensely important tool over the next 20 years in Oregon. As mentioned, the Oregon Supreme Court has never found a historical exception that would put any restraints on free expression in the state. For example, in 1987 the court overturned the Oregon obscenity statute even though there had been an 1854 territorial statute concerned with distributing obscene materials where young people were in view, because the prohibition was apparently not widespread enough or specific enough at the time of the Oregon Constitutional Convention to be a legitimate historical exception. State v. Henry, 302 Or 510, 732 P2d 9 (1987).

It was this historical exception analysis that the Court of Appeals turned on its head in Ciancanelli and City of Nyssa. Rather than looking at the historical exception analysis in very narrow terms, the appeals tribunal read the exception very broadly and found historical exceptions in both cases. It found an appropriate historical exception for naked dancing for paid patrons in a private club (City of Nyssa) in 19th century prohibitions against public nudity or indecency. The prohibition of live sex shows, even for paying customers in the privacy of individual booths or rooms, could be said to be 'wholly confined' in colonial and 19th century laws regulating public sexual conduct (Ciancanelli). Indeed, a close reading of Ciancanelli would permit its analysis to be applied to any act of public nudity.

The second principle of the Robertson framework is that if a statute restricts speech but also has a provision describing the harm that is meant to be avoided by the law, the law may be constitutional so long as it is not overbroad ó that is, that it does not reach constitutionally protected activity. This principle received its most full exposition in a 1988 decision of the Oregon Supreme Court, also authored by Linde, overturning a City of Portland ordinance imposing location and spacing restrictions on adult businesses. City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988). Though Lindeís opinion appears to allow restrictions on expression if the harm is properly articulated in a regulation or statute, a close reading of his baffling prose suggests that any 'time, place or manner' restriction would probably not pass constitutional muster.

Cracks in the Robertson Framework
By 1990, then, the two principles of the Robertson framework were in place and construed narrowly by the supreme court, giving Oregon its reputation as a state with expansive protection of free speech. But two developments in the 1990s began to erode the stability or clarity of the Robertson principles. First was the growing sense in a few law review articles and the 2002 decisions of the Court of Appeals that the historical exception of Robertson was itself not historically well-founded. Second was the proliferation of child pornography in the 1990s and the consequent scrambling of the Oregon Supreme Court to outlaw this material, even though its reasoning in previous cases using the Robertson framework might have given scant reason to condemn the practice. Both of these developments have either questioned or stretched the Robertson framework considerably. Consider the following.

As shown above, the historical exception prong of the Robertson framework requires two things: first, that for any present-day statute restricting 'pure' speech to be constitutional there had to be a showing (it had to be 'well-established') that it or something very like it was not allowed in 1859 and second, that the framers of the Oregon Constitution, in I, 8, did not intend to permit the practice after 1859. While the meaning of 'well-established' is open to considerable debate, the second part of the test (that I,†8 was not 'intended to reach' a proscribed practice) is nearly meaningless for anyone who has studied the rudiments of early Oregon history.

Even a brief review of the newspaper articles collected by Charles Carey summarizing debates during the 1857 Constitutional Convention will convince the reader that many of the constitutional provisions were adopted with little or no debate. There was no debate, much less consensus, on whether a constitutional provision would supersede or leave untouched various 'well established' statutes. Thus, the Robertson requirement that in order for a 'pure speech' statute to be constitutional the Constitutional Convention somehow had to express a unified sentiment regarding whether it would survive implementation of I, 8, is like setting the high jump bar at 7 feet at a junior high track meet and wondering why no one can clear the height. Judge Landau was only able to get around this part of the test by subtly redefining it, which the dissenters eagerly pounced on in their dissents.

Second, continuing to honor the historical exception test would have the effect of making all constitutional lawyers historians and having those who have no training in history, the judges, to be the evaluators of the better historical arguments. There would be a premium on hiring Ph. D.ís in history to be law clerks at the courts and special masters would regularly need to be appointed with expertise in legal history. Indeed, on a practical note, the few remaining copies of the Oregon Territorial Statutes that exist in this state should then be rebound and prominently displayed in reading rooms rather than hidden away in protected vaults or rare book rooms.

When judges function as historians, it can lead to facile and even comical caricatures of the past. When the supreme court overturned the obscenity statute in 1987, it did so because it accepted a one-word characterization of the pioneer generation of Oregoniansóthey were 'robust.' Because these Oregonians were products of a 'robust' and not a 'prudish' age, they would certainly have opposed any restrictions on obscene material. State v. Henry, 302 Or 510, 519, 523, 732 P2d 9 (1987).

Again, the historical exception analysis might itself be the subject of a searching question. Why should we as 21st century Oregonians want to confine our understanding of the limits of free speech to what historians may find was permitted or proscribed more than 140 years ago? Isnít there a better way?

The second prong of the Robertson framework is likewise subject to question. Recall that under this test a statute implicating speech might be permissible if that statute specifies the harms the statute was intended to avoid. But what kind of harm is in view? Must it be an actual harm? An imminent harm? A feared harm?

In addition, the supreme courtís handling of the child pornography issue in 1996 opened another dimension to the problem. State v. Stoneman, 323 Or 536, 920 P2d 535 (1996). In that case the court was confronted with the problem of whether the statute prohibiting distribution of child pornography offended I, 8. Even though the statute had nothing in its language which specifically dealt with harms to be avoided, the court concluded that harmful terms can be inferred from a statute even if they are not explicitly spelled out. Indeed, one might infer from the larger statutory context as well as from the harm that the statute itself seems to presuppose that a harm is in view even where it is not explicitly mentioned.

While this manner of reasoning enabled the Oregon Supreme Court to uphold various laws prohibiting distribution of child pornography, it did so at the cost of further muddying the Robertson framework. For if harms now may be implied as well as express, if they may be divined from the larger statutory context of an enactment as well as from the statute itself, then a harm can be found almost anywhere in any statute. One could use this analysis, then, to bring every potentially difficult statute out of the 'pure speech' category by arguing that the statute really intends, implicitly or explicitly, to proscribe certain harms. Then, one would just have to argue that the statute survives an overbreadth challenge and one would be home free. Restrictions on pure speech could be redefined as implied restrictions on the harms flowing from speech and then could regularly be upheld.

Options for Decision
The Oregon Supreme Court is certainly not in an easy or enviable position. Though it is impossible to guess how the court might decide these cases, four options come to mind.

First, the court might take the easy way out, leave the framework untouched and decide the cases on different grounds. It might decide that the activity involved in the Roseburg sex show and the Oregon statute prohibiting it really concerned conduct rather than expression. Conduct is not covered by I, 8, and so the court would not have to deal with the Robertson framework. And, it could decide the Nyssa case on grounds that the four-foot restriction is a reasonable time, place or manner restriction consistent with Tidyman and thus not implicating free speech at all. To take the easy way out does not mean that the court is lazy or unprincipled. Sometimes the easy way is the right way.

Chances are, however, that the court will not do this. It probably did not grant review in these cases in order to hear oral arguments and then decline to reach the real issues at hand. It might decide, conversely, that now is the time to dispense with the Robertson framework altogether. It might consider, as suggested above, that the framework has become so unmanageable and malleable that it can be used to reach the most contrary decisions. It might decide that leading the bench and bar down a difficult road of historical analysis really is not where the future of constitutional analysis in Oregon resides.

Support for abandoning the framework can actually be derived from I, 8 itself. The promoters of the framework have always emphasized the absolutist language of the first half of the provision. Almost ignored is the second half: 'but every person shall be responsible for the abuse of this right.' The state in its brief to the supreme court in Ciancanelli took a position it has been arguing for years: that the text of I, 8, when considered as a whole sounds remarkably like a balancing rather than an absolutist provision.

If the court considers this suggestion too radical, it might choose a third option: maintain the Robertson framework but take care to clarify the nature of the historical exception. That is, the court might want to consider what an analogous statute is or what it means for one enactment to be 'wholly confined' in another. This court, as many others, is skilled at coming up with three-part tests; perhaps an analogous statute might be one where the subject matter is the same, the conduct proscribed is similar, the sanctions in view are comparable. By tinkering with the framework, the court could not only render a principled decision in both cases but could potentially breathe life into a framework badly in need of some fresh breath.

Finally, the court could modify the framework significantly by pruning back the historical exception and the harms doctrines but otherwise declare the framework sound. It could eliminate the second part of the historical exception test because it presents an insuperable obstacle to the use of the framework. Thus, one would be left with a historical exception test that stressed only the first prong of the framework. Consensus could possibly be reached on what constituted a well-established exception.

Then, it could also prune back the harms doctrine by confining the implied harms approach to the facts of Stoneham. This may be difficult at first because the court has resolutely refused to use the word 'implied' to characterize the harm to children in the child pornography statute. Yet, by concluding that the harm sought to be avoided needs to be either expressly stated in the statute or be clearly deducible from the legislative history, the court could control the potentially unruly application of an implied harms doctrine.

Conclusion
At the end of the day, however, what may weigh most on the justicesí minds is the supple belief in Oregonís unique legal status as evidenced by the protections under its state constitution. Most if not all the current Oregon Supreme Court justices either came of age or were strongly influenced by the clarion call of Oregonís uniqueness echoing from the refined cadences of the speech of Gov. Tom McCall. For them to overthrow the legal framework that is a link to that period would be tantamount to burying a hope that fueled this state for at least two decades. Oregon may be ready for some limitations on naked dancing or live sex shows, but we are probably not yet ready to dispense with the message that Robertson still sends to us: we Oregonians are a unique and exceptional people.

ABOUT THE AUTHOR
William R. Long is an adjunct professor of law at Willamette University College of Law. Before coming to Willamette he was an attorney at Stoel Rives, Portland. His most recent article in the Bulletin, 'A Time to Kill? Reflections on the Oregon Death Penalty,' appeared in April 2002.

Endnote

1. '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.'

© 2003 William R. Long


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