State v. Stoneman , 1994 Ore. App. LEXIS 1960 ( 1994 )

RICHARDSON, C. J.

Defendant was charged with paying to obtain a videotape and magazine that depicted sexually explicit conduct by a child under 18years of age. ORS 163.680.¹ The trial court held that ORS 163.680 violated Article I, section 8, of the Oregon Constitution and sustained defendant’s demurrer to the indictment on the basis of State v. Henry, 302 Or 510, 732 P2d 9 (1987). The state appeals, ORS 138.060(1), and argues that ORS 163.680 does not violate Article I, section 8, because: (1) the statute focuses on the harmful effects of speech, i.e., the abuse of children in the production of child pornography, and not the content of the expression itself; (2) if, however, the statute is content-based, it embodies a historical exception to Article I, section 8; and (3) laws enacted to protect children should be excepted from the sweep of Article I, section 8, because of their exceptional importance to the state. We affirm.

The first step in analyzing an Article I, section 8, challenge is to determine whether the prohibited activity involves “speech” or “expression” within the meaning of Article I, section 8.² Moser v. Frohnmayer, 315 Or 372, 375, 845 P2d 1284 (1993). 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.”

The depictions of sexually explicit materials described in ORS 163.680(1) are a type of expression comprehended by Article I, section 8. Neither party argues otherwise.

The second step in the analysis is to determine whether the law is directed at the “substance of any ‘opinion’ or any ‘subject’ of communication,” i.e., content, or whether the law is directed at forbidden effects. State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982); see also State v. Plowman, 314 Or 157, 165, 838 P2d 558 (1992), cert den _ US _ (1993). If a law proscribes expression on the basis of content, then, on its face, it violates Article I, section 8, 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. Plowman, supra, 314 Or at 164 (quoting State v. Robertson, supra, 293 Or at 412).

The party opposingthe claim of constitutional protection has the burden of demonstrating that the restriction on expression falls within a historical exception. State v. Henry, supra, 302 Or at 521.

A law directed at harmful effects may expressly prohibit expression or the law may not refer to expression at all. If a law prohibits the expression that causes harmful effects, the law

“ ‘must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such “overbreadth.” ’ ” State v. Plowman, supra, 314 Or at 164 (quoting State v. Robertson, supra, 293 Or at 418).

If the law focuses on the forbidden effects without referring to expression at all, the court can scrutinize the law for vagueness or an unconstitutional application. State v. Plowman, supra, 314 Or at 164; see also City of Eugene v. Miller, 318 Or 480, 490, 871 P2d 454 (1994).

The state’s primary argument is that ORS 163.680 is directed at some identified, harmful effect of child pornography rather than the content of the expression. The state argues that, because ORS 163.680 only proscribes giving value to view visual reproductions of children engaged in sexually explicit conduct, the statute’s focus is on the harmful effects that flow from using children to produce pornographic materials.

Two cases help define the difference between laws that focus on harmful effects and laws that focus on the content of expression. In State v. Plowman, supra, the Supreme Court held that ORS 166.165(1)(a)(A), the statute creating and defining the crime of intimidation in the first degree, did not violate Article I, section 8. That statute requires proof of four elements:

“(1) Two or more persons must act together; (2) they must act because of their perception of the victim’s race, color, religion, national origin, or sexual orientation; (3) they must cause physical injury to the victim; and (4) they must cause the physical injury intentionally, knowingly, or recklessly.” 314 Or at 165.

The defendant argued that the statute punished both opinion and communication. The court rejected that argument. First, it held:

“Rather than proscribing opinion, that law proscribes a forbidden effect: the effect of acting together to cause physical injury to a victim whom the assailants have targeted because of their perception that that victim belongs to a particular group. The assailants’ opinions, if any, are not punishable as such. ORS 166.165(1)(a)(A) proscribes and punishes committing an act, not holding a belief.” 314 Or at 165.

Second, the court held that the statute did not impermissibly reach communication. It did not require proof of the communication of the assailants’ perception, and, in any case, using speech to prove the crime was distinguishable from making expression or opinion a crime or an element of a crime.

In City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), the court reached the opposite conclusion with regard to an ordinance regulating the location of “adult businesses.” There, the city argued that the ordinance was constitutional because it was aimed at the adverse consequences adult businesses had on nearby residential and commercial areas. In rejecting the city’s argument, the court first compared the challenged ordinance with the “coercion” statute at issue in State v. Robertson, supra. The court noted that, in Robertson, the coercion statute made the undesired effect an element of the statute. But, in Tidyman, the court determined that the Portland ordinance did not make harmful effects of adult businesses an element of the ordinance:

“The Portland ordinance, in contrast [to the coercion statute], undertakes to prevent what the city believes to be the effects of the trade in sexually explicit verbal or pictorial material by describing the content of this communicative material.” 306 Or at 184.

Despite the fact that the effects were not part of the ordinance, the city argued that the legislative findings that prefaced the ordinance provided the necessary proof that it focused on the harmful effects of adult businesses. The court, however, held that legislative history was insufficient to meet the constitutional requirement:

“In short, the problem with the city’s asserted ‘concern with the effect of speech,’ is that the operative text of the ordinance does not specify adverse effects that constitute the ‘nuisance’ attributable to the sale of ‘adult’ materials and therefore does not apply only when these adverse effects are shown to occur or imminently threaten to occur. Rather, the ordinance makes a one-time legislative determination that retailing substantial quantities of sexually oriented pictures and words within the proscribed area will have adverse effects that retailing other pictures and words would not have, and that it therefore can he restricted as a ‘nuisance’ by a law describing the materials rather than the effects. By omitting the supposed adverse effects as an element in the regulatory standard, the ordinance appears to consider the ‘nuisance’ to be the characteristics of the ‘adult’ materials rather than secondary characteristics and anticipated effects of the store. Such lawmaking is what Article I, section 8, forbids.” 306 Or at 185-86. (Footnote omitted.)

With these two cases in mind, we turn to the statute at issue in this case. Former ORS 163.680(1) provided:

“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.”

The text of the statute makes it unlawful for a person to give value to view or obtain particular expressive material, because of its content — the depiction of sexually explicit conduct by a child. It is unlike the statute in Plowman, which proscribed the forbidden effects of opinion, “acting together to cause physical injury to a victim whom the assailants have targeted because of their perception that the victim belongs to a particular group.” Nowhere in the text of ORS 163.680(1) has the legislature expressly identified any harmful effects to be prevented by the enforcement of this statute. The language is directed solely at prohibiting persons from paying to obtain or view the sexually explicit materials.

The state argues, and the dissents agree, that we can infer that ORS 163.680 is directed at the abuse and exploitation of children rather than at the sexually explicit material. We do not agree that we can make that inference.

In Moser v. Frohnmayer, supra, the court said:

“To be valid as a law that focuses on a harmful effect of speech, the law must ‘specify expressly or by clear inference what “serious and imminent” effects it is designed to prevent.’ ” 315 Or at 379 (quoting Oregon State Police Assn. v. State of Oregon, 308 Or 531, 541, 783 P2d 7 (1989) (Linde, J., concurring), cert den 498 US 810 (1990)).

In City of Portland v. Tidyman, supra, the court refused to use express legislative findings in the preface to the ordinance to infer the targeted effects when the ordinance, on its face, only regulated a particular type of expression. 306 Or at 184-85. Cf. City of Eugene v. Miller, supra, 318 Or at 490-91 (challenged ordinance did not, on its face, regulate expression or content; in analyzing this ordinance “as applied,” the court looked beyond the face of the ordinance to determine the harmful effects the city intended this ordinance to prevent). The court concluded in Tidyman that it is “the operative text of the legislation, not prefatory findings, that people must obey and that administrators and judges enforce.” 306 Or at 185.

The state also suggests that the statute focuses on the harmful effects of child abuse, because by depleting the market for such materials, and thus removing the incentive to produce child pornography, the statute will have the effect of lessening child abuse. However, there is nothing in the text of the statute to suggest this inference.

We could theorize an array of effects that the statute was intended to eliminate,³ but such an exercise is pointless in the light of the court’s decision in City of Portland v. Tidyman, supra. This case provides an even stronger argument for holding that ORS 163.680 violates Article I, section 8, because here not only does the operative text make no mention of preventing harmful effects, but there are not even any legislative findings prefacing the statute. The state offers only broad policy objectives and an economics lesson in supply and demand to support the inference that the statute is intended to proscribe the harmful effects of child abuse. We reject the state’s contention that the statute properly focuses on harmful effects rather than on the content of the materials expressly proscribed.

The state contends, alternatively, that, even if ORS 163.680 proscribes expression on the basis of content, it is valid because the proscription falls within a historically established exception to Article I, section 8. The state’s burden in demonstrating such an exception is a heavy one

“ ‘because the constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal restraints on one or another form of speech or writing.’ ” Moser v. Frohnmayer, supra, 315 Or at 376 (quoting State v. Henry, supra, 302 Or at 521).

Some examples of historical exceptions to the guarantees of free speech include: “perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud.” State v. Robertson, supra, 293 Or at 412.

The state makes two arguments to support its contention that a historical exception exists. First, it argues that the complete absence of child pornography, the materials and conduct prohibited by ORS 163.680, at the time of the adoption of the constitution is indicative of a historic exception. Subsumed in this argument are two separate theories. The first is that the conduct prohibited by the statute is the result of new technologies which did not exist at the time the constitution was adopted. The other theory is that the historical intolerance of pornographic materials depicting children made the enactment of contemporaneous laws unnecessary. Second, the state argues that territorial legislation, which existed at the time the constitution was adopted, can be construed to indicate a historical exception was intended. We do not find either of the state’s arguments convincing.

The state’s first argument that the historical absence of certain types of expression indicates a lack of constitutional protection for that expression, has previously been rejected. See Moser v. Frohnmayer, supra, 315 Or at 378; Ackerley Communications, Inc. v. Mult. Co., 72 Or App 617, 624, 696 P2d 1140 (1985), rev dismissed 303 Or 165 (1987). In Moser, the court also addressed an argument similar to the state’s “new technology” theory. In Moser, the state argued that because automatic telephone dialing and announcing devices were not invented at the time the constitution was adopted, such new forms of communication made possible by advanced technologies were not speech protected by Article I, section 8. The court rejected this argument holding that new forms of communication are protected by Article I, section 8.

The state’s other theory that social intolerance formed a historical exception is based mainly on supposition. The state offers little evidence that society disapproved of pornography depicting children.⁴ In response to the state’s argument, defendant points out that literature involving the sexual conduct of children was available in the 18th and 19th centuries. Similarly, the court in State v. Henry, supra, spoke of the members of the Constitutional Convention as

“rugged and robust individuals dedicated to founding a free society unfettered by the governmental imposition of some people’s views of morality on the free expression of others.” 302 Or at 523.

In its discussion of the acceptability of “obscene” materials, the court concluded that ‘ ‘restrictions on sexually explicit and obscene expression between adults were not well established at the time of the adoption of Article I, section 8.” This being the case, the court determined that no well-established historical exception from constitutional protection for obscenity was ever intended. We conclude that the little evidence offered by the state fails to establish that there was a complete historical absence of child pornography and is insufficient to support a historical exception.

We turn to the state’s second argument that the territorial legislation analyzed in State v. Henry, supra, provides the basis on which to find a historic exception. The state distinguishes the court’s analysis in Henry, that

“[t]he territorial statute, which contained no definition of ‘obscene’ and which was directed primarily to the protection of youth, certainly does not constitute any well-established historical exception to freedom of expression and that statute is in no way the equivalent of statutes punishing libel, perjury, forgery and the like.” 302 Or at 522.

The state points out that the analysis of the territorial statute in Henry was in the context of determining the constitutionality of obscene expression between adults, whereas, this case addresses specifically the constitutionality of a statute involving children. The state argues that the specific prohibitions in ORS 163.680 are merely a modern version of the protection encompassed in the territorial statute.

Despite the different context, the territorial provision is no better suited to support a historical exception in this case than it was in State v. Henry, supra. The court in Henry rejected the argument that the territorial provision created a historical exception: “[T]hat statute is in no way the equivalent of statutes punishing libel, perjury, forgery and the like.” 302 Or at 522. Second, as in Henry, the territorial provision stands on its own as far as legal restraints offered to establish a historical restriction. The mere showing of “some” legal restraint is insufficient to prove a well-established exception to freedom of expression.

Even if we were to assume that the territorial provision represents a well-established historical exception, we cannot say that the prohibition of ORS 163.680 is “wholly confined” within that exception. See State v. Robertson, supra, 293 Or at 412. The territorial provision was directed at persons who “import, print, publish, sell or distribute” things “containing obscene language or obscene prints * * * manifestly tending to the corruption of the morals of youth” or who introduce or intend to introduce such materials into a “family, school, or place of education.” See Statutes of Oregon 1854, ch XI, § 10, pp 210-11. The provision thus prohibited only the production and intended or actual distribution of the materials, whereas the statute at issue here prohibits the purchase of certain materials. We also note that the territorial provision appears to have been directed solely at protecting youths from viewing obscene materials, not from being the subjects of such materials. Further, because the territorial provision does not define “obscene,” it is difficult to delineate the boundaries of the historical restriction and, thus, determine whether the challenged statute extends beyond the restriction. As the court in Henry said, ‘ ‘ [t]he term ‘obscene’ simply functioned as a condemnatory term declaring words, pictures, ideas or conduct as improper by definition, whatever may, from time to time, be placed within the definition.” 302 Or at 520.

Thus, even assuming that the territorial provision created a historical exception, the scope of the exception is too undefined to conclude that ORS 163.680 falls within its confines. In summary, even if we consider the historical absence and the territorial provision arguments together, as indicative of some historical exception, the evidence offered by the state does not amount to a well-established and defined restriction on child pornography equivalent to “libel, perjury, forgery and the like.”

The state’s final argument suggests that we adopt a position similar to that of the United States Supreme Court and other state appellate courts upholding laws that prohibit the possession of child pornography. Basically, the state contends that laws, which are designed to protect children and are narrowly construed to do so, should be excepted from the scope of Article I, section 8, because such laws are of exceptional and legitimate importance to the state. It cites, inter alia, Osborne v. Ohio, 495 US 103, 110 S Ct 1691, 109 L Ed 2d 98 (1990), and New York v. Ferber, 458 US 747, 102 S Ct 3348, 73 L Ed 2d 1113 (1982). For support in Oregon cases, the state quotes Justice Gillette’s concurrence in City of Portland v. Tidyman, supra, 306 Or at 192 (“The right of* * * the state to enact legislation to protect the welfare of children approaches the plenary.”), and the majority in In re Fadeley, 310 Or 548, 559, 802 P2d 31 (1990) (“Not even Article I, section 8, is absolute — there are exceptions to its sweep. Among the exceptions are certain rules of professional conduct, * * * as well as certain historical exceptions.”).

Essentially, the state asks us to treat expression involving sexual conduct by children differently than other iypes of expression. The problem with the state’s argument is that the Oregon Supreme Court has developed a unique analysis that treats different types of speech equally under Article I, section 8. For example, unlike under federal First Amendment analysis, Article I, section 8, analysis does not differentiate commercial expression and obscene expression from other kinds of speech. See Moser v. Frohnmayer, supra; State v. Henry, supra. Additionally, Oregon courts have not adopted the federal First Amendment analysis which balances governmental interests in scrutinizing restrictions on free speech.⁵ See Deras v. Myers, 272 Or 47, 64, 535 P2d 541 (1975) (the federal constitution is “not controlling where this court is of the opinion that our constitution should provide a larger measure of protection to the citizen”)(footnote omitted).

The state may regulate “obscene” material in the interest of children, State v. Henry, supra, 302 Or at 525, but that regulation must fall within the parameters of the harmful effects analysis. See City of Portland v. Tidyman, supra, 306 Or at 191. Whatever the extent of the state’s power to protect children, it must be exercised legislatively, and when the protection implicates constitutionally protected expression, it must be exercised explicitly and precisely.

Affirmed.

1 The 1987 version of ORS 163.680(1) applies to this case. It provided:

"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.” (Emphasis supplied.)

The statute has since been amended by Oregon Laws 1991, chapter 664, section 8. However, the emphasized language in the 1987 statute, which is at issue in this case, has been retained without any material change in ORS 163.680(2).

2 The analytical framework for determining facial challenges made on the basis of this constitutional provision is not entirely clear. In its decisions, the Supreme Court has consistently relied on and developed the fundamental propositions set out in State v. Robertson, 293 Or 402, 649 P2d 569 (1982); however, the progeny of that case do not elaborate consistently exactly how those propositions fit together. Compare City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994); Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993); State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den _ US _ (1993); State v. Henry, 302 Or 510, 732 P2d 9 (1987); and State v. Robertson, supra, with In re Fadeley, 310 Or 548, 802 P2d 31 (1990); Oregon State Police Assn. v. State of Oregon, 308 Or 531, 783 P2d 7 (1989), cert den 498 US 810 (1990); State v. Moyle, 299 Or 691, 705 P2d 740 (1985); and State v. Garcias, 296 Or 688, 679 P2d 1354 (1984). Our analysis here follows the most recent framework that the court has articulated. See City of Eugene v. Miller, supra, Moser v. Frohnmayer, supra, and State v. Plowman, supra.

3 The dissent contends that the forbidden effect is clearly inferable, because ORS 163.680 is part of a series of statutes designed to protect children. Given the Supreme Court’s analysis in Tidyman the dissent’s contention is not tenable.

4 The state cites two law review articles and the United States Attorney General’s Report as support for its argument that child pornography is a new phenomenon. See Shouvlin, “Preventing the Sexual Exploitation of Children: A Model Act,” 17 Wake Forest L Rev 535 (1981); Comment, “Preying on Playgrounds: The Sexploitation of Children in Pornography and Prostitution,” 5 Pepperdine L Rev 809 (1978); see also United States Attorney General’s Commission on Pornography, Final Report (1986). However, beyond this limited showing, the state offers no evidence that expression depicting children was encompassed by a historical exception from the guarantees of free speech.

5 See, e.g., Consolidated Edison Co. v. Public Serv. Comm’n, 447 US 530, 540, 100 S Ct 2326, 65 L Ed 2d 319 (1980) (content based restrictions require a showing by the government “that the regulation is a precisely drawn means of serving a compelling state interest”); see also Renton v. Playtime Theatres, Inc., 475 US 41, 50, 106 S Ct 925, 89 L Ed 2d 29 (1986) (appropriate inquiry for content neutral restrictions is “whether the * * * ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication”).