State v. Ciancanelli ( 2002 )

LANDAU, J.

Defendant operates a business that offers live sex shows to the public. The state charged him with two counts of promoting unlawful sexual conduct in a public show, ORS 167.062, one count of promoting prostitution, ORS 167.012, one count of compelling prostitution, ORS 167.017, and two counts of using a child in a display of sexual conduct, ORS 163.670, arising out of the operation of that business. Before trial, he moved to suppress certain evidence that police obtained during a search of the premises. The trial court denied the motion. Defendant also challenged the constitutionality of the two statutes that prohibit promoting unlawful sexual conduct in a public show and promoting prostitution, ORS 167.062 and ORS 167.012 respectively. According to defendant, the conduct of his business is protected by the free expression guarantees of Article I, section 8, of the Oregon Constitution, and the First Amendment to the United States Constitution. The trial court rejected those challenges as well. Defendant was convicted of the foregoing charges, and he now appeals, arguing that the trial court erred (1) in denying the motion to suppress, (2) in upholding the constitutionality of ORS 167.062, and (3) in upholding the constitutionality of ORS 167.012. We affirm as to the denial of the motion to suppress without further discussion. As to the constitutional challenges, we also affirm for the reasons that follow.

Because the state prevailed at trial, we state the evidence in the light most favorable to it. State v. Thompson, 328 Or 248, 250, 971 P2d 879, cert den 527 US 1042 (1999). Defendant operated Angels, an “adult-oriented” business in Roseburg that offered various “shows” to individuals or small groups. The customers would select a show, pay a fee, and retire to a small room in which the shows would be performed.

Two undercover officers visited Angels. They paid $100 to view a “toy show.” A woman performer took them to a small room with a couch and a CD player. She started the music and performed a striptease. She masturbated and inserted her fingers into her vagina and her anus. She also inserted a dildo into her vagina. She continued those activities for 25 minutes. The officers gave the performer a tip and left.

The two officers returned the following week and paid to view a “two girl show” for $150. They were taken to a performance room, in which two women dressed in lingerie turned on some music, performed a striptease, sat on the officers’ laps, and rubbed their breasts on the officers’ chests. One of the women then inserted a dildo into her vagina, while the other manipulated it. The two kissed, touched each other, and engaged in oral sex with one another. Shortly after that performance, the officers obtained and executed a search warrant at Angels and arrested both defendant and the performers. Defendant was charged by indictment with the aforementioned offenses.

Before trial, defendant demurred to the indictment, arguing that ORS 167.062 and ORS 167.012 violate his rights of free expression guaranteed by the state and federal constitutions. Specifically, he argued that ORS 167.062 is overbroad and therefore facially invalid and that both statutes are unconstitutional as applied to this case. The trial court overruled the demurrers.

On appeal, defendant first assigns error to the trial court’s decision on the demurrer to the charges brought under ORS 167.062. He argues, as he did to the trial court, that the statute is facially unconstitutional and unconstitutional as applied. In support of his argument under the state constitution, he relies on State v. House, 66 Or App 953, 676 P2d 892, on recons 68 Or App 360, 681 P2d 173 (1984), ajfd on other grounds 299 Or 78, 698 P2d 951 (1985), in which this court held that the portions of ORS 167.062 (1983) that prohibited public touching of the “genitals, pubic area or buttocks” were unconstitutionally overbroad. According to defendant, House now should be applied to strike down the balance of ORS 167.062. As for his argument under the federal constitution, defendant briefly contends that the statute fails because it is broader than necessary to further any legitimate state interest. Cited in support is Erie v. Pap’s A.M., 529 US 277,120 S Ct 1382,146 L Ed 2d 265 (2000).

The state replies that, as to defendant’s arguments under the state constitution, House is distinguishable and, in any event, was wrongly decided. According to the state, our opinion in House failed to analyze the statute in accordance with State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982), and its progeny. Under the Robertson analysis, the state argues, we must first determine whether the statute regulates expression; if it does not, the inquiry ends, because Article I, section 8, protects only expression. In this case, the state argues, the statute in fact regulates only conduct specifically “sexual conduct” — not expression. Even assuming that the statute regulates expression, the state continues, under Robertson, the proper inquiry then is whether it regulates the content of the expression; if it does, then it is unconstitutional unless wholly contained within a historical exception to Article I, section 8. According to the state, in this case, the statute is indeed wholly contained within a historical exception. Thus, the state concludes, whether the statute is regarded as regulating expression or not, it does not violate Article I, section 8. As for defendant’s arguments under the federal constitution, the state replies that, in Pap’s A.M., the United States Supreme Court upheld the constitutionality of a local government prohibition on nude dancing.

ORS 167.062(3) provides that “[i]t is unlawful for any person to knowingly direct, manage, finance or present a live public show in which the participants engage in * * * sexual conduct.” The term “live public show” means “a public show in which human beings, animals, or both appear bodily before spectators or customers.” ORS 167.062(5)(a). “Public show,” in turn, means “any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public.” ORS 167.062(5)(b). “Sexual conduct” means, among other things, “human masturbation, sexual intercourse * * * in an act of apparent sexual stimulation or gratification.” ORS 167.060(10).

We begin with defendant’s contention that ORS 167.062 violates the state constitution. At the outset, we note that defendant agrees that the statute applies to the conduct that we have described. Specifically, there is no debate that what the performers did was, in fact, “sexual conduct” and that the performers engaged in that conduct in a “public show,” as those terms are defined in the relevant statutes.¹

Article I, section 8, of the Oregon Constitution, 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 constitution thus prohibits restraints on expression. The question whether conduct may be “expression” protected by state or federal free speech guarantees is a notoriously difficult one. See, e.g., Laurence H. Tribe, American Constitutional Law § 12-7, 825-32 (2d ed 1988) (detailing difficulties with drawing a distinction between speech and conduct). All speech is conduct in some sense; likewise much conduct is expression in the sense that it communicates an opinion or a message. Under Oregon law, however, merely because conduct is expressive does not necessarily establish that it is protected by Article I, section 8. In Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993), for example, six members of “Earth First!” climbed on top of and chained themselves to logging equipment from which they suspended a large banner that read: “FROM HERITAGE TO SAWDUST - EARTH FIRST!” When the owner of the logging equipment obtained compensatory and punitive damages in an action for trespass, the defendants challenged the constitutionality of the verdict, arguing that their conduct was expression protected under Article I, section 8. The court stated that,

“[a]lthough those acts undoubtedly had a communicative effect, in the sense that most purposive human activity communicates something about the frame of mind of the actor, the acts were conduct, not speech.”

Id. at 449-50.

In this case, defendant contends that the statute restrains expression protected by Article I, section 8, because it prohibits sexual conduct in a public show. According to defendant, any performance before an audience is expressive. In our view, the question is not so simply resolved. As Huffman and Wright Logging Co. makes clear, merely engaging in conduct to attract the attention of an audience does not necessarily transform the conduct into protected expression. Homicide, for example, is conduct. Performing it in front of an audience does not transform it into protected expression.

We need not determine, however, whether defendant’s conclusion that ORS 167.062 prohibits expression nevertheless is correct. Even assuming that the statute restrains expression, we conclude that the restraint does not run afoul of Article I, section 8.

At the outset, we must determine the proper analysis under Article I, section 8. The parties assume that the analysis is dictated by Robertson and its progeny. In Stranahan v. Fred Meyer, Inc., 331 Or 38, 54-55, 11 P3d 228 (2000), however, the Supreme Court held that provisions of the original Oregon Constitution are subject to the constitutional analysis described in Priest v. Pearce, 314 Or 411,415-16, 840 P2d 65 (1992), the focus of which is the “intent of the framers * * * and of the people who adopted it.” Stranahan, 331 Or at 54. In particular, the court held that that method of analysis applies to Article I, section 8. Id. at 66 n 19. The court did not mention Robertson, under which analysis of Article I, section 8, is somewhat different. The court declined actually to apply Priest to Article I, section 8, in that case, because the parties had neglected to provide it with any briefing as to the intended meaning of that section with respect to the dispute in that case. Stranahan, 331 Or at 66 n 19.

We conclude that Robertson still controls our disposition of cases arising under Article I, section 8. Although the Supreme Court has suggested that — at least in the abstract — a different method of analysis applies, the fact remains that it has not overruled Robertson. Moreover, as in Stranahan, the parties in this case have not argued that anything other than Robertson applies in this case. Lacking any assistance from the parties, we decline to undertake on our own an analysis of Article I, section 8, that departs from the method set out in Robertson.

In Robertson, the Supreme Court explained:

“Article I, section 8 * * * forbids lawmakers to pass any law ‘restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever,’ beyond providing a remedy for any person injured by the ‘abuse’ of this right. This forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.”

293 Or at 412 (footnote omitted). That means that we are required to determine (1) whether there was a restriction on expression that was “well-established”² during the relevant historical period;³ and, if so, (2) whether the challenged statute falls “wholly within” that historical exception. If ORS 167.062 wholly falls within a historical exception to Article I, section 8, our analysis ends.⁴

Regulation of public sexual conduct — which commonly was understood to include even public nudity — has been a regular feature of the legal landscape for several hundred years, at least as early as 1663,⁵ when Sir Charles Sydlye was fined for “shewing himself naked on a balcón/’ and throwing bottles of urine at the public below “contra pacem, and to the scandal of the Government.” Sir Charles Sydlyes Case, 83 Eng Rep 1146, 1147 (KB 1663).⁶ William Blackstone — whose commentaries on the English common law were so influential to the development of American law⁷ — noted that “open and notorious lewdness” was “cognizable by the temporal courts.” William Blackstone, 4 Commentaries on the Laws of England, 64 (Chitty ed., vol 2, 1870). Such indictable conduct included “frequenting houses of ill-fame” and “[e]xposing a party’s person to the public view.” Id. at 64 n 25. Parliament enacted a statute that declared a man who exposed his “Person” to a woman was punishable as “a Rogue and Vagabond.” 5 Geo IV, ch 83, § 4 (1824), reprinted in 64 The Statutes at Large of the United Kingdom of Great Britain and Ireland, 5 George IV1824, 382 (1824). The mere act of stripping to bathe in the sea, without any other act of “wanton indecency,” apparently was enough to provoke the attention of the English criminal justice system. Rex v. Crunden, 170 Eng Rep 1091, 1091 (KB 1809). “The law will not tolerate such an exhibition,” the court held. Id. “Whatever his intention might be, the necessary tendency of his conduct was to outrage decency, and to corrupt the public morals.” Id.

The American colonies picked up where the English left off. Indeed, early colonists, particularly New England puritans,⁸ devoted an extraordinary amount of energy to the regulation not only of public immorality, but also of entirely private sexual conduct, including adultery, fornication, buggery, and — with particular zeal — bestiality. See generally Kermit L. Hall, The Magic Mirror: Law in American History, 32-33 (1989). By the mid-nineteenth century, nearly every state recognized the crime of public indecency or public lewdness. As Lawrence Friedman observed, in the enactment of those laws,

“the republican period carried on a rich, colonial tradition, committed to sexual control (or, more accurately, repression). There was no abrupt break with the past. By law, only married people were entitled to any kind of sex life at all, and only within narrow limits. Everything else was not only a sin, it was a crime. * * * Adultery was a crime, as were fornication, incest, and (of course) ‘the detestable crime against nature, committed with mankind or with a beast’ — a crime so awful it was not even described, though presumably most people knew what was meant. Any ‘open, gross lewdness and lascivious behavior’ was also an offense. Similarly, it was a crime to cater to other people’s lewdness.”

Lawrence M. Friedman, Crime and Punishment in American History, 127-28 (1993) (footnotes omitted).

The specific language of early-nineteenth-century laws varied. Some, such as Arkansas’s, specifically prohibited public nudity or “obscene exhibitions” of the body:

“Every person who shall appear in public places naked, or partly with the intent of making a public exhibition of his nudity, or who shall make any obscene exhibition of his person, shall be deemed guilty of a misdemeanor.”

Stat Ark, ch 51, art VIII, § 1, p 377 (1858); see also Rev Stat NH, title XTV, ch 113, § 6, p 221 (1843) (prohibiting nudity in view of any house or road “for the purpose of swimming or bathing, or otherwise, without necessity”); NY Penal Code, title X, ch VII, § 363(1), p 134 (1865) (Field Code) (any person who “[e]xposes his person, or the private parts thereof’ or procures another to do so is guilty of misdemeanor). Others prohibited any “open,” “notorious,” or “public lewdness.” See, e.g., Rev Stat Ill, ch 30, § 127, p 174 (1845) (prohibiting “open lewdness, or other notorious act of public indecency”); Ind Rev Stat § 22, p 433 (1852) (prohibiting “notorious lewdness or other public indecency’); Stat Laws Terr Iowa Courts, § 86, p 165 (1839) (prohibiting “open lewdness, or other notorious act of public indecency’); Rev Stat Me, ch 124, § 5, p 684 (1857) (prohibiting “open, gross lewdness and lascivious behavior”); Gen Stat Mass, ch 165, § 6, p 818 (1864) (prohibiting “open and gross lewdness and lascivious behavior”); Pa Laws, title IV, § 44, p 394-95 (1860) (prohibiting “open lewdness, or any notorious act of public indecency”); Vt Rev Stat, ch 99, § 8 (1846) (prohibiting “open and gross lewdness and lascivious behavior”); Va Code, title 54, ch 197, § 7, p 804 (1849) (prohibiting “open and gross lewdness and lasciviousness”). Still others prohibited “lascivious carriage,” obviously referring to something other than a horse-drawn buggy. See, e.g., Conn Stat, title 21, § 79, p 138 (1835) (prohibiting “lascivious carriage and behavior”).

Oregon was no different. In 1854, the Territorial Legislature prohibited “open and gross lewdness and lascivious behavior.” Rev Stat Terr Or, An Act to Define Crimes and Misdemeanors, and Regulate Criminal Proceedings, ch 11, § 4, p 210 (1854). A decade later, the legislature got more specific:

“If any person shall wilfully and lewdly expose his person or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby, * * * or make any other exhibition of himself to public view, or to the view of any number of persons, such as is offensive to decency, or is adapted to excite vicious or lewd thoughts or acts, such person, upon conviction thereof, shall be punished by imprisonment in the county jail, not less than three months, nor more than one year, or by fine not less than fifty, nor more than five hundred dollars.”

General Laws of Oregon, ch 48, § 632, p 559 (Deady 1845-1864).⁹

Nineteenth-century legislatures did not stop at public sexual conduct, either. Even private sexual conduct was considered well within the regulatory prerogatives of the state at the time. Statutes prohibiting a man and woman living together “in adultery or fornication” were commonplace. See, e.g., Rev Stat Me, ch 124, § 5, p 684 (1857) (unmarried persons may not “lewdly and lasciviously cohabit”); Gen Stat Mass, ch 165, § 6, p 818 (1864) (unmarried persons may not “lewdly and lasciviously associate and cohabit together”); Miss Code, ch 64, § 58, p 939 (1848) (prohibiting “adultery or fornication”); Va Code, title 54, ch 197, § 7, p 740 (1849) (“any white persons, not married to each other, [may not] lewdly and lasciviously associate and cohabit together”); see also Donal E.J. MacNamara & Edward Sagarin, Sex, Crime, and the Law, 186 (1977) (fornication eventually was made illegal in all jurisdictions in America).

True, in many instances, state statutes did not precisely define the terms “lewd,” “lascivious,” or “indecent.” Courts and legislators of the time were notoriously concerned with “the chastity of our records,” Commonwealth v. Sharpless and others, 2 Serg & Rawle 91,103 (Pa 1815), and were disinclined to describe sexual conduct in any detail. See, e.g., The People v. Girardin, 1 Mich 90,91 (1848) (“Courts will never allow [their] records to be polluted by bawdy and obscene matters.”). Nevertheless, it is entirely possible— indeed, it is easy — to conclude that the terms included the sort of conduct at issue in this case, that is, public sexual intercourse and masturbation.

Mid-nineteenth-century dictionaries defined the term “lewd” in sexual terms: “Given to the unlawful indulgence of lust; addicted to fornication or adultery; dissolute; lustful; libidinous.” Noah Webster, 2 An American Dictionary of the English Language (1828).¹⁰ Bouvier’s 1839 law dictionary was even more explicit. With obvious reference to Sydlye and Crunden, it defined the term “indecency,” explaining: “The following are examples of such indecency, namely, the exposure by a man of his naked person on a balcony, to public view, or bathing in public.” John Bouvier, 1A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union, 492 (1839).

Early treatises similarly report that lewdness and indecency referred to sexual conduct and, in particular, public nudity. Wharton, for example, explains that “ [a] n indecent exposure of person to public view is an indictable offence.” Wharton, A Treatise on the Criminal Law of the United States at 804. Wharton noted that it likewise was a crime for a master to permit his servant “to pass about in the public highway in a state of nakedness.” Id. at 805. Bishop observed with reference to earlier cases that there is no doubt that lewdness “includes illicit sexual intercourse, and the irregular indulgence of lust, whether public or private.” Joel Prentiss Bishop, Commentaries on the Law of Statutory Crimes § 716, p 459 (1873); see also Russell, A Treatise on Crimes and Misdemeanors at 325 (“In general, all open lewdness grossly scandalous is punishable by indictment at the common law: and it appears to be an established principle that whatever openly outrages decency, and is injurious to public morals, is a misdemeanor.”).

Nineteenth-century case law reflects the universal understanding that prohibitions on “lewd” and “indecent” conduct included, at the very least, sexual conduct and, in particular, public nudity. The Indiana Supreme Court’s decision in McJunkins v. The State, 10 Ind 140 (1858), is illustrative. In that case, the court acknowledged that the term “public indecency’ is “vague and indefinite.” Id. at 145. Nevertheless, the court held, it had commonly come to be understood by the courts to mean “public displays of the naked person, [and] the publication, sale, or exhibition of obscene books and prints.” Id,.¹¹ Similarly, in Britain v. The State, 22 Tenn (3 Hum) 203, 204 (1842), the defendant was convicted of “lewdness” for “permitting] his slaves to go about the country in * * * a state of nakedness.” Likewise, in State v. Roper, 18 NC (1 Dev & Bat) 208, 209 (1835), the court upheld a conviction for indecent exposure based on the defendant’s public nudity, commenting that “[a] public exposure of the naked person, is among the most offensive of those outrages on decency and public morality.” See also The State v. Mary Hazle, 20 Ark 156, 159 (1859) (public nudity is an indictable offense); Commonwealth v. Lambert, 94 Mass (12 Allen) 177, 179 (1866) (“We have no doubt that [lewdness] includes illicit sexual intercourse, and the irregular indulgence of lust, whether public or private.”); Miller v. The People, 5 Barb 203, 205 (NY 1849) (public nudity requires intent); State v. Millard, 18 Vt 574, 577-78 (1846) (public exposure of a person’s genitals “is lewd, and is gross lewdness * * * [and] was a proper subject for the animadversion of criminal jurisprudence”).

It may be objected that we have failed to report any statutes that directly parrot the language of ORS 167.062 in prohibiting public sexual intercourse and masturbation. That is true. We nevertheless do not hesitate to conclude that the framers in mid-nineteenth-century Oregon understood that the state had the authority to regulate public sexual conduct such as sexual intercourse and public exposure of the genitals. We reach that conclusion for several reasons.

First, we do not read Robertson to require such a historical “smoking gun.” To the contrary, the Oregon Supreme Court emphasized that a historical exception does not consist of a particular statutory prototype, but instead of a well-established principle of law evidenced by, among other things, statutes and case law from the relevant times. Robertson, 293 Or at 434. Thus, in the cases decided since Robertson, the Oregon Supreme Court has canvassed a wide array of historical sources from which to draw inferences about the framers’ intentions. In Henry, for example, the court examined literature, statutes, cases, and treatises from the seventeenth and eighteenth centuries to determine whether there existed a well-established historical exception for the regulation of “obscene” publications. 302 Or at 515-23. Similarly, in State v. Moyle, 299 Or 691, 696, 705 P2d 740 (1985), the court examined precedents from both English and American legal history from the early-eighteenth to the mid-nineteenth centuries to determine whether the state constitution was intended to protect nonextortionate written threats. In this case, we have followed the same analytical approach, examining English and American precedents from the seventeenth to the nineteenth centuries to determine what the framers most likely intended with respect to the regulation of sexual conduct.

Second, relevant historical sources repeatedly attest to the authority of the state to regulate ‘lewd,” “lascivious,” and “indecent” behavior and explicitly define those terms to include sexual intercourse. See, e.g., Bishop, Commentaries on the Law of Statutory Crimes § 716 at 459 (noting with reference to prior case law that lewd behavior “includes illicit sexual intercourse, and the irregular indulgence of lust, whether public or private”); see also Lambert, 94 Mass (12 Allen) at 179 (“We have no doubt that [lewdness] includes illicit sexual intercourse * * * whether public or private.”).

Third, apart from that, eighteenth- and nineteenth-century statutes and case law reflect the widespread — if not universal — regulation of public exposure of the genitals. See, e.g., General Laws of Oregon, ch 48, § 632, p 559 (making it a crime for any person to ‘lewdly expose his person or the private parts thereof’). Logically, that evidence leads to one of two possible conclusions about the framers’ intentions with respect to the regulation of sexual intercourse and masturbation. On the one hand, it could be inferred that, because the framers so relentlessly prohibited even as little as public nudity, it necessarily follows that public intercourse and masturbation would have been regarded as even more odious and even more obviously subject to state regulation. On the other hand, it could be inferred that, although the framers understood that public nudity could be regulated, they apparently understood that public nudity while engaged in intercourse or masturbation could not (or that both were permissible as long as the offenders kept their clothes on). Frankly, given the evidence that we have described about antebellum public morals, statutes, and case law, we find the latter possibility to be remote, to say the least.

Fourth, there is likewise abundant evidence of the regulation of even private adultery and fornication in the mid-nineteenth century. See, e.g'., Miss Code, ch 64, § 58 (prohibiting “adultery or fornication”). We find it highly unlikely that the framers would have understood that, although the state legitimately could regulate private adultery and fornication, public sexual conduct was protected expression.

It also may be objected that the ubiquity of nineteenth-century sexual conduct laws does not necessarily reflect the extent to which those laws were enforced. Friedman, for example, observes that, in the early-nineteenth century, private sexual conduct statutes do not appear to have been vigorously enforced. Friedman, Crime and Punishment in American History at 128. He also notes, however, that, while enforcement attitudes changed with respect to wholly private sexual conduct such as fornication and adultery, nineteenth-century attitudes towards public sexual conduct remained unchanged. Id. at 130.¹² Moreover, for our purposes, the point is not whether sexual conduct laws were enforced; rather, it is whether the framers believed that the state had the authority to enforce them. No one questioned that in the early-nineteenth century.

Constitutional challenges to the authority of the state to regulate public sexual conduct, in fact, were unknown before the Civil War.¹³ The conventional view is that the notion that the state or federal government lacked the constitutional authority to regulate that sort of conduct was not suggested until well after the turn of the twentieth century. See, e.g., Bradley C. Bobertz, The Brandéis Gambit: The Making of America’s “First Freedom,” 1909-1931,40 Wm & Mary L Rev 557, 559 (1999) (“At the end of the nineteenth century, the most remarkable aspect of our ‘first freedom’ was that practically no one talked about it, wrote about it, or sued to enforce it.”); G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth-Century America, 95 Mich L Rev 299 (1996) (tracing origins of new conceptions of free speech in early twentieth century).¹⁴ More revisionist historical scholarship suggests that, at the earliest, such “libertarian radicalism” emerged in the last decade of the nineteenth century. See generally David M. Rabban, Free Speech in Its Forgotten Years, 23-77 (1997) (tracing origins of new conceptions of free speech theory to the Free Speech League and its turn-of-the-century opposition to the Comstock Act of 1873). Even then, the focus was on the constitutional protection of private, not public, sexual conduct. Id.¹⁵

In short, however quaint it may seem to us a century and a half later, the historical record establishes beyond peradventure that the framers of the Oregon Constitution did not understand Article I, section 8, to provide protection against state regulation of public sexual intercourse and masturbation. To the contrary, the notion that the state or federal constitution protected public sexual conduct was unknown until well into the twentieth century. We therefore conclude that the regulation of that same conduct under ORS 167.062 is wholly contained within a well-established historical exception.

Judges Brewer and Armstrong, in separate opinions, disagree. We note that neither contests our essential thesis— that the framers did not understand public sexual intercourse or masturbation to be constitutionally protected. They simply assert that, for a number of reasons, that historical fact does not matter.

Judge Brewer first complains that we have inappropriately assumed that the conduct at issue in this case — conduct “that occurred in a small room in an establishment that can be seen only by patrons who have paid to be there”— would have been regarded as “public” in the mid-nineteenth century. 181 Or App at 39 (Brewer, J., coneurringin part and dissenting in part).

To begin with, we note that, in making the foregoing assertion, Judge Brewer misses the point that, as of 1857, both public and private sexual conduct had been regulated by the state without question of constitutionality. See, e.g., Hazle, 20 Ark at 158 (to prove “obscene exhibition” “the place need not be public”); Sharpless, 2 Serg & Rawle at 101 (although indictment charged indecency in a “public shop [,] * * * that can make no difference”) (emphasis in original).¹⁶

But aside from that, Judge Brewer simply is wrong in asserting that what ORS 167.062 prohibits — that is, sexual conduct performed during any “entertainment or exhibition” that is “accessible to the public” — would not have been considered “public” in the mid-nineteenth century. “Public” houses commonly were understood to refer to places open to the public for entertainment. E.g., Webster, 2 An American Dictionary (1828); Alexander M. Burrill, 2 A Law Dictionary and Glossary, 352 (1867). Bishop similarly reports that “any place may be made public by a temporary assemblage,” and the fact that some people are excluded from a room does not “prevent its being such.” Joel Prentiss Bishop, 1 Commentaries on the Criminal Law, § 181, 225-26 (1858). Courts likewise held that rooms in which members of the public paid to view sexual conduct were “public.” Directly on point in that regard is People v. Bixby, 67 Barb 221 (NY 1875). In that case, five men paid money to watch a group of women engage in “indecent exposure” in a closed room in a brothel. Citing Bishop’s 1858 treatise, the court concluded that the room was “public”: “Any place may be made public by a temporary assemblage [,] and this is especially so when the assemblage is gathered to witness an exhibition for hire.” Bixby, 67 Barb at 222.

Judge Brewer then turns his attention to the extent to which we have demonstrated that ORS 167.062 is “wholly contained” within a historical exception. He insists that we must establish the precise boundaries of the historical exception before we may know whether the modern statute is wholly contained within it. 181 Or App at 40 (Brewer, J., concurring in part and dissenting in part). Judge Brewer never explains why that is so, however. As a matter of logic, he is incorrect. Merely because we do not know the boundaries of a lake does not mean that we cannot say with confidence that a stone is wholly contained within it. More important, as a matter of precedent, he likewise is incorrect; as we have noted, Robertson expressly provides that an exact fit with a specific historical statutory prototype is not required. 293 Or at 434.

Judge Brewer also insists that we have misconstrued what qualifies as a “historical exception” under Article I, section 8. “True” historical exceptions, he says, “do not trap us in a time warp of our own device.” Instead, he argues,

“they reflect timeless and unstinting values whose pedigree is so patent that there is no occasion to conjure their meaning or contours.”

181 Or App at 41 (Brewer, J., concurring in part and dissenting in part). Thus, says Judge Brewer, the historical exception that we have identified is unacceptable, because it “makes no sense in light of contemporary standards of tolerance.” 181 Or App at 41 (Brewer, J., concurring in part and dissenting in part).

Here, Judge Brewer veers especially wide of the mark. He relies on contemporary standards of decency to evaluate whether an otherwise well-established exception is truly “historical.” That is impossible to reconcile with Robertson and its progeny, in particular, Moyle and Henry¹⁷ Robertson does trap us in a “time warp.” That is why it refers to a “historical” exception, defined in terms of what the framers in 1857 — not modern-day judges examining statutes through the lens of twentieth-century moral sensibilities— thought about the scope of state authority. See, e.g., In re Lasswell, 296 Or 121,124, 673 P2d 855 (1983) (regulation of speech is unconstitutional unless it falls within “a historically established exception” that the framers did not intend to abandon upon adoption of the constitution). Henry, for example, would have been a much different — and shorter— opinion, were Judge Brewer correct. The Supreme Court spent a considerable amount of effort evaluating cases and statutes from the seventeenth to the nineteenth centuries to determine what the framers of the Oregon Constitution thought about the regulation of obscenity. Not once did the court appeal to contemporary morality in evaluating the regulation of obscenity as a well-established historical exception.

Judge Brewer attempts to draw support for his novel analysis from familiar criticism of originalism in general, namely, that the framers sometimes were “intolerant, narrow-minded, and bigoted” and that reliance on their intentions “inevitably will lead to results that make no sense” to the modem citizenry. 181 Or App at 41-42 (Brewer, J., concurring in part and dissenting in part).¹⁸ We will not debate the merits of a jurisprudence of original intent, however. For our purposes, that debate is irrelevant. The Oregon Supreme Court plainly has described the exception analysis under Article I, section 8, in historical — not contemporary — terms. Any concerns as to the propriety of the analysis must await the Supreme Court’s reexamination of its own case law. Perhaps this case will present an opportunity for the court to do that. In the meantime, we are persuaded that what we have described and applied is what the court’s cases require.

Judge Brewer also claims support for his approach in our decision in House. 181 Or App at 40 (Brewer, J., concurring in part and dissenting in part). Candor requires us to acknowledge that House, indeed, employed an approach similar to the dissent’s. House also is plainly wrong. This court held that the statutory prohibition on public touching of the genitals was unconstitutionally overbroad, scarcely mentioning Robertson, much less applying it. In particular, the court never addressed the question whether the challenged statute was wholly contained within a well-established historical exception. Instead, after listing a number of contemporary theatrical works that conceivably could run afoul of the statute, the court simply declared, ipse dixit, that the statute obviously was overbroad. House, 66 Or App at 958.¹⁹ House, like Judge Brewer’s analysis, cannot be reconciled with Robertson or any other subsequent Supreme Court decision concerning Article I, section 8.²⁰

Next, Judge Brewer takes us to task for failing “to come to terms with what the Supreme Court held in Henry” 181 Or App at 43 (Brewer, J., concurring in part and dissenting in part). That is an interesting complaint, given that what he proposes is irreconcilable with Henry. But aside from that, Judge Brewer once again is mistaken.

In Henry, the Supreme Court rejected the state’s argument that there was a well-established historical exception for the regulation of obscene publications generally. The court held that, although there may well be a historical exception for the regulation of narrower forms of expression — distribution of obscene materials to “unwilling viewers, captive audiences, minors and beleaguered neighbors,” for example — there was none for obscenity generally. 302 Or at 525. More than once the court emphasized the narrowness of its holding, that is, the rejection of an “all-encompassing historical exception” for obscene publications generally. Id. at 523. The court did not address the regulation of public indecency, public lewdness, or public shows of sexual conduct, much less hold that there exists no well-established historical exceptions for the regulation of such conduct. Nothing in Henry forecloses our conclusion that an entirely different statute is wholly contained within an entirely different historical exception than the court passed on in that case.²¹

Finally, Judge Brewer complains that, if we are correct about the constitutionality of state regulation of public nudity, then, under Pap’s A.M. and Barnes v. Glen Theatre, Inc., 501 US 560, 111 S Ct 2456,115 L Ed 2d 504 (1991), regulations of expressive conduct that are permitted by the Oregon Constitution would be prohibited by the First Amendment. 181 Or App at 44 (Brewer, J., concurring in part and dissenting in part). That is a curious argument, indeed, for in both Pap’s A.M. and Barnes, the United States Supreme Court upheld the constitutionality of statutes prohibiting nude dancing. What is more, in Barnes, the Court noted that the Indiana public indecency statute at issue in that case was constitutional precisely because, for centuries, the courts have recognized states’ legitimate interest in protecting public morality. The Court even went so far as to cite Sydlye:

“The public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests. * * * [T]he statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of‘gross and open indecency,’ in Winters v. New York, 333 US 507, 515[, 68 S Ct 665, 92 L Ed 840] (1948). Public nudity was considered an act malum in se. LeRoy v. Sidley, [83 Eng Rep at 1146-47.] Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.”

Barnes, 501 US at 567-68. Our decision certainly does not conflict with that analysis.²²

But even assuming that a necessary implication of our analysis is that some regulations permitted by the Oregon Constitution turn out to be prohibited by the federal constitution, it is entirely unclear to us why that means that our analysis is wrong. Judge Brewer appears to assume that the Oregon Constitution must be more protective of individual rights than the federal constitution. There is, however, no basis whatever for that assumption.²³

Judge Armstrong echoes Judge Brewer’s contention that the outcome of this case is controlled by Henry. 181 Or App at 50-51 (Armstrong, J., dissenting). As we have noted, however, Henry was a narrow decision, involving a different historical exception and a different statute. Judge Armstrong also claims support from this court’s decision in State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), rev den 332 Or 137 (2001), which he reads as having rejected the same historical analysis on which we rely in this case. 181 Or App at 50-51 (Armstrong, J., dissenting). Once again, Judge Armstrong neglects to understand that this case involves a different historical exception and a different statute from the ones at issue in Maynard. Moreover, he ignores the fact that the majority in Maynard held only that it was not necessary to address whether the statute at issue in that case was wholly contained within a well-established historical exception. See Maynard, 168 Or App at 137 (criticizing the dissent for following a “different method of analysis, which causes it to detour into an unnecessary examination of the historical exception doctrine”).

Judge Armstrong next complains that our historical analysis is flawed because it is based on an examination of laws regulating both expression and conduct. According to Judge Armstrong, the only historical evidence that “matters” is evidence of nineteenth-century statutes that restrict expression. 181 Or App at 51 (Armstrong, J., dissenting). That, as we have noted, is simply incorrect. Robertson itself cautions that the historical exception analysis is not limited to searching for particular statutory prototypes. 293 Or at 434. Instead, the proper focus is on the intentions of those who adopted the constitution, gleaned from any historical materials that shed light on those intentions. Id. at 412 (proper focus is what the framers intended with respect to the scope of Article I, section 8).²⁴ Thus, in cases following Robertson, the Supreme Court has examined a wide array of historical sources — involving regulations of conduct as well as speech — to determine the intentions of the framers. See, e.g., Henry, 302 Or at 515-25.

Judge Armstrong finally complains that our historical analysis is unnecessary, because the crimes at issue in this case are not “conventional crimes.” 181 Or App at 53 (Armstrong, J., dissenting). That, however, simply is not the analysis that is reflected in any of the Supreme Court’s cases since Robertson. Indeed, if Judge Armstrong were correct, then the extensive historical analysis in Henry amounts to entirely unnecessary dictum. We find no support for that reading of the case.

Because the challenged portions of ORS 167.062 are wholly contained within a well-established historical exception, we conclude that defendant’s Article I, section 8, challenge fails. That leaves his First Amendment challenge to the statute, which may be disposed of with much less discussion.

According to defendant, ORS 167.062 violates the First Amendment, because it amounts to a regulation of expression that is broader than necessary to serve any legitimate government interest. Defendant cites in support of that argument the United States Supreme Court’s decision in Pap’s A.M. Defendant fails to point out that, in that case, the Supreme Court upheld a local government ordinance prohibiting nude dancing as against a First Amendment challenge. Four members of the Court concluded that nude dancing “falls within the outer ambit of the First Amendment’s protection.” 529 US at 289. But the Court also concluded that the ordinance amounted to a de minimis intrusion on expression that was justified by the local government’s legitimate interest in protecting public health and welfare. Id. at 296-97. Two other members of the Court concluded that the conduct involved did not even amount to expression subject to the protection of the First Amendment. Id. at 307-10 (Scalia and Thomas, JJ., concurring). Defendant does not explain, and we do not understand, how public sexual intercourse and masturbation can fare better under the First Amendment than nude dancing did in Pap’s A.M.

Defendant next assigns error to the trial court’s decision on his demurrer to the charges brought under ORS 167.012, prohibiting promoting prostitution. That statute provides, in part:

“A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly: “(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise [.]”

ORS 167.012(1). “Prostitution,” in turn, occurs when

“(a) The person engages in or offers or agrees to engage in sexual conduct or sexual contact in return for a fee; or

“(b) The person pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact.”

ORS 167.007(1). For the purposes of the prostitution statutes, “sexual conduct” refers to “sexual intercourse or deviate sexual intercourse,” ORS 167.002(4), and “sexual contact” refers to “any touching of the sexual organs or other intimate parts of a person not married to the actor for the purpose of arousing or gratifying the sexual desire of either party,” ORS 167.002(5).

There is no argument that defendant’s conduct did not amount to promoting prostitution as defined in ORS 167.012. Defendant’s sole contention is that the statute violates Article I, section 8, because it targets expression. According to defendant, because the performers were engaged in protected expression, defendant’s promotion of that expression also must be protected by Article I, section 8.

The state argues that defendant simply is incorrect in asserting that the performers were engaged in protected expression, much less that his promotion of that conduct is protected expression as well. In any event, the state argues, the promotion of prostitution is wholly contained within a historical exception to the guarantee of free expression reflected in Article I, section 8.

We agree with the state that, even assuming that promoting prostitution is protected expression, the fact remains that it is wholly contained within a historical exception to Article I, section 8. Regulation of the “most ancient profession in the world”²⁵ is probably as old as the profession itself. See, e.g., Deuteronomy 23:17-18. In the context of the Anglo-American legal system, it dates back at least to the thirteenth century, when Edward I ordered that no “femme coursable” should dwell within the city of London. See generally Frederick Pollock & Frederic William Maitland, 2 The History of English Law, 543 n 5 (2d ed 1898).²⁶ What is more, English law did not target solely the “night walkers” themselves; it also regulated those who promoted the business. As Blackstone reported, at common law, “bawdy-houses” were considered to be “public nuisances, and may upon indictment be suppressed and fined.” 4 Commentaries at 168; see, e.g., Regina v. Williams, 91 Eng Rep 334 (QB 1712) (husband and wife held jointly liable for renting out room to be used for prostitution); Regina v. Pierson, 91 Eng Rep 333 (QB 1706) (indictment upheld for permitting room to be used for prostitution).

In the American colonies, particularly as the development of maritime trade spurred the development of coastal cities in the eighteenth century, prostitution and the maintenance of bawdy-houses became a common concern of state and local governments. See generally D’Emilio & Freedman, Intimate Matters: A History of Sexuality in America at 50-52. By the mid-nineteenth century, every state and every major city outlawed the keeping of houses of prostitution. See generally Friedman, Crime and Punishment in American History at 224.

Examples of antebellum state statutes include the following: Conn Stat, title 21, § 87, pp 324-25 (1854) (prohibiting keeping “a house of ill fame, resorted to for the purposes of prostitution, or lewdness”); Rev Stat Ill, ch 30, § 127, 174 (1845) (prohibiting keeping “a lewd house or place for the practice of fornication”); Stat Laws Terr Iowa, Courts, § 86, p 165 (1839) (prohibiting keeping “a lewd house or place for the practice of fornication”); Rev Stat Me, ch 124, § 9, p 685 (1857) (prohibiting keeping “a house of ill-fame, resorted to for the purpose of prostitution or lewdness”); Rev Stat Mass, ch 130, § 8, p 740 (1836) (prohibiting keeping “a house of ill fame, resorted to for the purpose of prostitution or lewdness”); Stat Minn, ch 96, § 9, p 729 (1859) (prohibiting keeping “a house of ill fame, resorted to for the purpose of prostitution or lewdness”); Pa Laws, title IV, § 43, p 394 (1860) (prohibiting keeping “a common bawdy house, or place for the practice of fornication”); Rev Stat RI, title XXX, ch 216, § 6, p 543 (1857) (prohibiting keeping “a house of ill fame, resorted to for the purpose of prostitution or lewdness”); Va Code, title 54, ch 196, § 10, p 740 (1849) (prohibiting keeping “a house of ill-fame, resorted to for the purpose of prostitution or lewdness”). Oregon was among the states that recognized the offense as a matter of statute. Rev Stat Terr Or, An Act to Define Crimes and Misdemeanors, ch 11, § 8, p 210 (1854) (prohibiting keeping “a house of ill fame, resorted to for the purpose of prostitution or lewdness”).²⁷

The offense also was recognized at common law. See, e.g., Ross v. Commonwealth, 41 Ky (2 B Mon) 417 (1842) (upholding fine against individual who leased his house to another who used it as a bawdy-house); Smith v. State, 6 Gill 425 (Md 1848) (even if not a statutory offense, leasing a house for use as a bawdy-house is indictable at common law); Jennings v. Commonwealth, 34 Mass (17 Pick) 80 (1835) (keeping a house of ill fame is indictable both under statute and at common law); The People v. Erwin, 4 Denio 129 (NY 1847) (upholding indictment for leasing out a house to person who used it for prostitution).

Contemporaneous treatises — so often relied on by frontier lawyers and legislators — likewise declared that the keeping of houses of prostitution was an offense at common law. See, e.g., Bishop, 1 Commentaries on the Criminal Law § 379 at 419 (noting that keeping a “bawdy-house” is an offense at common law); Russell, A Treatise on Crimes and Misdemeanors at 322 (“It is clearly agreed that keeping a bawdy-house is a common nuisance, as it endangers the public peace by drawing together dissolute and debauched persons; and also has an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness.”) (emphasis in original); Wharton, Treatise on the Criminal Law of the United States at 804 (noting that it is an indictable offense to “keep a house of ill fame for lucre”).

And there was no mistake about what the legislators, courts, and commentators were talking about. A “bawdy-house” was “[a] house of lewdness and prostitution.” Webster, 1 An American Dictionary (1828).²⁸ “Prostitution,” in turn, was well understood — albeit with more than a hint of sexism — to mean “[t]he act or practice of offering the body to an indiscriminate intercourse with men; common lewdness of a female.” Id.

Thus, what ORS 167.062 prohibits is precisely what states routinely — if not universally — prohibited at the time Article I, section 8, of the Oregon Constitution, was adopted. The modern statute prohibits “maintaining] a place of prostitution.” ORS 167.012(l)(a). So also did the 1854 Oregon territorial statute and every other state either by statute or at common law.

In short, regardless of whether either ORS 167.062 or ORS 167.012 prohibit conduct or expression, neither violates the free expression guarantee of Article I, section 8, of the Oregon Constitution. Nor does ORS 167.062 violate the free expression guarantee of the First Amendment to the United States Constitution. The trial court therefore did not err in overruling defendant’s demurrer to the indictment.

Affirmed.

1 Judge Brewer questions whether the performance amounted to “intercourse,” as opposed to masturbation. 181 Or App at 39 n 7 (Brewer, J., concurring in part and dissenting in part). We likewise are not certain that the conduct at issue is “intercourse” within the meaning of the statute. But defendant argues that the conduct at issue implicates both components of the statutory prohibition against public shows of “sexual conduct,” and the state does not take issue with that. Moreover, our analysis in no way depends on whether the conduct at issue amounted to “intercourse,” as opposed to “masturbation.”

2 The Supreme Court did not explain in Robertson what it meant by a “well-established” historical exception. Cf. William R. Long, Requiem for Robertson: The Life and Death of a Free-Speech Framework in Oregon, 34 Will L Rev 101, 135 (1998) (a “well-established” historical exception “means whatever the court perceives it to mean” in each case). It could mean that the exception had existed for many years before the adoption of the constitution. It could mean that the exception was widely acknowledged by that time. It could mean both. In this case, as we explain in some detail below, the relevant historical exceptions existed for centuries and were well-nigh universal at the time that the Oregon Constitution was adopted, so we need not decide precisely what the Robertson test requires; whatever it requires, the historical evidence is sufficient in this case.

3 In referring to the “relevant historical period,” we refer generally to the time of adoption of the Oregon Constitution. Given that the focus of the historical exception analysis is what the framers of the Oregon Constitution would have understood, that seems to make sense. See State v. Henry, 302 Or 510, 521, 732 P2d 9 (1987) (objective of Article I, section 8, analysis is to determine whether the guarantees of freedom of expression “were not intended to replace” earlier restrictions on expression); Robertson, 293 Or at 412 (characterizing the objective as determining whether Article I, section 8, was “intended” to reach previously well-established forms of state regulation). There is language in Robertson thatalso refers to the state of the historical record as of the adoption of “the first American guarantees of freedom of expression” in the late eighteenth century. 293 Or at 412. Why the state of the law 60 years before the adoption of the Oregon Constitution would control is not entirely clear. In this case, however, it makes no difference, because there is no substantial difference between those time periods as to the existence of a historical exception.

4 Thus, if the challenged statute is wholly contained within a well-established historical exception, it is not necessary to address whether the statute is overbroad. A statute is overbroad only to the extent that it regulates expression protected under Article I, section 8. See State v. Rangel, 328 Or 294, 299, 977 P2d 379 (1999) (“An overbroad statute is one that proscribes speech or conduct that the constitution protects.”). If the statute is wholly contained within a well-established exception to Article I, section 8, logically, it cannot be overbroad.

5 Regulation of private sexual conduct by the ecclesiastical courts dates back even further. Records from 1475 to 1640 show that English ecclesiastical courts “exercised a wide disciplinary control over the moral life of the members of the church,” trying parishioners for such offenses as adultery, incontinency, and incest. William Holdsworth, 1A History of English Law, 619 (7th ed 1956).

6 Sydlye, by the way, is of much more than colorful, academic significance, for it proved to be a very well-known decision in America that was much-cited by nineteenth-century treatise writers and courts as support for the conclusion that public nakedness was actionable at common law. E.g., William Oldnall Russell, A Treatise on Crimes and Misdemeanors, 325 n b (1845) (citing Sydlye); Francis Wharton, A Treatise on the Criminal Law of the United States, 804 (3rd ed 1855) (citingSydlye).

7 As the Oregon Supreme Court explained in Smothers v. Gresham Transfer, Inc., 332 Or 83,98,23 P3d 333 (2001), Blackstone’s Commentaries were sold widely in America “and became one of the principal means of the colonists’ information about the state of English law in general.” See also Daniel J. Boorstin, The Mysterious Science of the Law: An Essay on Blackstone’s Commentaries, 3,4 (1996) (“In the first century of American independence, the Commentaries were not merely an approach to the study of law; for most lawyers they constituted all there was of the law. * * * In view of the scarcity of lawbooks during the earliest years of the Republic, and the limitations of life on the frontier, it is not surprising that Blackstone’s convenient work became the bible of American lawyers.”).

8 Massachusetts colonists, for example, decried the “leniency” of the English ecclesiastical courts in dealing with moral offenses and transferred the entire jurisdiction of the ecclesiastical courts to the civil justice system so that sexual conduct could be regulated by the colony more in keeping with biblical principles. See George Lee Haskins, Law and Authority in Early Massachusetts: A Study in Tradition and Design, 90,183 (1968).

This obsession with the regulation of sexual conduct was not limited to Massachusetts puritans, but is reflected in the laws of other colonies, such as Virginia, New York, Pennsylvania, and Maryland, as well. See generally David H. Flaherty, Law and the Enforcement of Morals in Early America, in Law in American History, 203,213-14 (Donald Fleming & Bernard Bailyn eds. 1971); Traci Shallbetter Stratton, No More Messing Around: Substantive Due Process Challenges to State Laws Prohibiting Fornication, 73 Wash L Rev 767, 769 (1998). The colonies forbade fornication of any sort and punished the offense by fine, lashes on the back, and — interestingly—marriage. Id.; see also John D’Emilio & Estelle B. Freedman, Intimate Matters: A History of Sexuality in America, 22 (1988) (describing different colonial punishments for fornication).

9 The Oregon courts also recognized that, at common law, open and notorious lewdness, including “roaming the streets naked [and] the indecent exposure of the person on a highway or in a public place,” were well-recognized as punishable “because they outraged public decency and were against good morals.” State v. Nease, 46 Or 433, 440, 80 P 897 (1905) (citations omitted).

Judge Brewer takes us to task for citing statutes and cases that were published after the adoption of the Oregon Constitution. Without citation to authority, he contends that such historical sources “shed no significant light on the framers’ intent.” 181 Or App at 39 n 6 (Brewer, J., concurring in part and dissentinginpart). Judge Armstrong similarly complains that our reliance on such materials is improper. With respect, both are mistaken, as a matter of logic and precedent.

Logically, later-enacted statutes can serve as significant sources of information about the state of the law in earlier times, particularly when the statutes were intended merely to codify earlier common-law doctrines, as is often the case. See, e.g., State v. Jackson, 224 Or 337, 343, 356 P2d 495 (1960) (observing that statute “does no more than codify what has long been the common law rule of construction in this state”).

As for precedent, the Oregon Supreme Court frequently has resorted to later-enacted statutes to determine the meaning of the constitution. For example, in Jory v. Martin, 153 Or 278, 293-95, 56 P2d 1093 (1936), the court determined the meaning of the constitution by reference to, among other things, legislative enactments during the 1860, 1862, 1893, 1895, and 1905 legislative sessions. More recently, in Smothers, the court determined the intended meaning of Article I, section 10, in part by relying on the views of Matthew Deady — who, the court noted, served as the president of the Oregon Constitutional Convention in 1857— expressed some 30 years after the adoption of the constitution. 332 Or at 122. The court also relied on case law from this and other jurisdictions from 1879-88 to determine the state of Oregon tort law two to three decades earlier, that is, at the time of the adoption of the state constitution. Id. at 129-31.

10 The 1828 edition did not have numbered pages.

11 Interestingly, in response to judicial concerns about the vagueness of the term “lewdness,” the Indiana Legislature later amended the statute to make clear that it prohibited any person from “mak[ing] any uncovered and indecent exposure of his or their person,” once again illustrating the well-understood connection between “lewdness” and public sexual conduct. Williams v. The State, 64 Ind 553, 555 (1878).

12 Flaherty similarly details colonial exasperation with the enforcement of laws concerning public morality, leading to extra-legal efforts to enforce community standards of morality. Flaherty, Law and the Enforcement of Morals in Early America at 225-45. Others have observed that, although colonial prohibitions against illicit sex were harsh in tone, judicial enforcement of them often was restrained in practice. See, e.g., Richard Godbeer, Sexual Revolution in Early America, 101-02 (2002).

13 There was one challenge to the constitutionality of a federal obscenity statute — the infamous Comstock Act of 1873,18 USC § 1461 — -before the United States Supreme Court shortly after the Civil War. The Court held:

"The only question for our determination relates to the constitutionality of the act; and of that we have no doubt.”

Ex Parte Jackson, 96 US 727, 737,24 L Ed 877 (1877).

14 As late as 1897, the United States Supreme Court held that the First Amendment — indeed, the entire Bill of Rights — was

“not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation!.]”

Robertson v. Baldwin, 165 US 275,281,17 S Ct 326,41L Ed 715 (1897). Even a decade later, Justice Holmes, writing for the Court, explained that the guarantees of freedom of expression contained in the First Amendment were intended to prohibit only prior restraints and that after-the-fact state regulation of speech was constitutional so long as the speech tended to injure public morals. Patterson v. Colorado, 205 US 454,462-63,27 S Ct 556, 51 L Ed 879 (1907).

15 Moreover, as White has noted, the emergence of such radical thought in the late-nineteenth century cannot be seen as fully reflective of what lawmakers generally thought about the authority of the state at the time. White, The First Amendment Comes of Age, 95 Mich L Rev at 311 n 25.

16 Judge Brewer similarly complains that some of the cases and statutes that we have cited — such as those pertaining to adultery and fornication — concern nonexpressive conduct and thus are entirely irrelevant. 181 Or App at 40 (Brewer, J., concurring in part and dissenting in part). Once again, however, he has missed the point: In the mid-nineteenth century, state legislatures pervasively regulated sexual conduct, both public and private, expressive and nonexpressive. Given that historical fact, we can only conclude that the conduct at issue in this case was not regarded by the framers as constitutionally protected.

17 Moreover, Judge Brewer’s factual premise — that nineteenth-century sexual conduct statutes no longer reflect public morality, 181 Or App at 41 (Brewer, J., concurring in part and dissenting in part) — is at least debatable. As recently as 1990, 47 states continued to prohibit indecent exposure. See Barnes v. Glen Theatres, Inc., 501 US 560, 568, 111 S Ct 2456,115 L Ed 2d 504 (1991) (reporting current indecent exposure regulation).

18 Judge Brewer also notes in passing that, based on a 1993 decision of the Canadian Supreme Court, our neighbors to the north would be “perplexed” by our “sense of historical obligation.” 181 Or App at 41 n 9 (Brewer, J., concurring in part and dissenting in part). Perhaps so. But then, the Canadian courts are not bound to follow Robertson. We are.

19 In Sekne v. City of Portland, 81 Or App 630,726 P2d 959 (1986), rev den 302 Or 615 (1987), this court similarly held that a local ordinance proscribing all nude dancing in taverns was unconstitutionally overbroad. The opinion relegated Robertson to a footnote; indeed, it expressly declined to determine whether the challenged ordinance was wholly contained within a well-established historical exception because the parties did not brief the matter. Id. at 636 n 2.

20 That is not the only oddity that House reflects. On the one hand, this court struck down the prohibition against public touching of the genitals in an act of apparent sexual gratification while, on the other hand, it severed — that is, it left intact — another provision prohibiting public masturbation. It is unclear to us whether there can be a meaningful distinction between public touching of the genitals and public masturbation, given that, by definition, “masturbation” involves touching the sexual organs in an act of sexual stimulation. See Webster’s ThirdNew Int’l Dictionary, 1391 (unabridged ed 1993).

21 In a related vein, Judge Brewer insists that we “spin a different view of history” than is reflected in several selected passages in Henry. 181 Or App at 44 (Brewer, J., concurring in part and dissenting in part). It is true that the court indulged in some general historical observations about the framers being “rugged and robust individuals” who were uninterested in the regulation of public morality. Henry, 302 Or at 523. It is also true that such general observations about the framers are tough to square with the historical evidence. We certainly are not the first to make that point. See, e.g., Daniel Barnhart, Comment, The Oregon Bill of Rights and Obscenity: How Jurisprudence Confounded Constitutional History, 70 Or L Rev 907, 923 (1991) (noting that the Supreme Court in Henry ignored over six decades of statutes and case law illustrating state regulation of obscenity).

That raises an interesting question: When the Supreme Court makes such general comments about American legal history, are lower courts bound by them, even when they are demonstrably incorrect? If, for example, the Supreme Court decides that John Wilkes Booth did not assassinate Abraham Lincoln, are we bound by that “decision” in future cases?

Fortunately, we do not need to answer that question. We are confident that, to the extent that the court’s comments about history are not necessary to the holding of a decision, we are not bound by them. That is so in this case. None of the court’s comments in Henry about rugged and robust pioneer forebears and the like were indispensable to the holding of that decision.

22 Judge Brewer also claims support from a recent decision of the Court of Appeals for the Seventh Circuit, Schultz v. City of Cumberland, 228 F3d 831 (7th Cir 2000). While the citation to the case is accurate enough, the case itself hardly reflects an uncontested majority view. See, e.g., Farkas v. Miller, 151 F3d 900,904 (8th Cir 1998) (upholding constitutionality of state statute prohibiting, among other things, “simulated public performance of any sex act upon or in [a] place of business”); Dodger’s Bar & Grill v. Johnson Cty. Bd. of Com’rs, 32 F3d 1436 (10th Cir 1994) (upholding constitutionality of county resolution barring public show of actual or simulated sexual intercourse, masturbation, and assorted other sexual acts); see also Richland Bookmartv. Nichols, 278 F3d 570 (6th Cir 2002) (upholding constitutionality of nude dancing regulation); Deja Yu of Nash. v. Metro Gov’t of Nash., 274 F3d 377 (6th Cir 2001) (upholding regulation of nude dancing); Hang On, Inc. v. City of Arlington, 65 F3d 1248 (5th Cir 1995) (upholding constitutionality of ordinance regulating nude dancing).

23 The law, in fact, is to the contrary. In Smith v. Employment Div., 301 Or 209, 721 P2d 445 (1986), for example, the Oregon Supreme Court determined that the state free exercise clause is less protective than its federal constitutional counterpart. The United States Supreme Court ultimately disagreed with the Oregon court’s reading of the First Amendment. Employment Div., Ore. Dept, of Human Res. v. Smith, 494 US 872, 110 S Ct 1595, 108 L Ed 2d 876 (1990). But the fact remains that, as a matter of state constitutional law, the Oregon Supreme Court has determined that it does not necessarily follow that, merely because the Oregon Constitution sometimes — even often — is more protective of individual rights, it must always be so.

24 In a similar vein, Judge Armstrong contends that we have misstated the proper focus of the inquiry, which he insists should be whether there is evidence that the framers specifically intended the particular type of regulation at issue to survive the adoption of Article I, section 8. 181 Or App at 49 (Armstrong, J., dissenting). In our view, the phrasing of the test — whether in the negative or the affirmative — does not matter in this case. In either event the question is what the framers would have understood, and that, we believe, is clear from the historical evidence.

25 Rudyard Kipling, In Black and White, 121 (1888).

26 The Liber Albus, a collection of, among other things, London municipal ordinances and “articles” compiled in 1419, reports that Edward I proclaimed that “no courtesan [or] common brothel-keeper shall be residing within the walls of the City, under pain of imprisonment.” Liber Albus: The White Book of the City of London, 239 (Henry Thomas Riley ed., 1861). Edward II, similarly proclaimed that “no woman of lewd life, bawd, courtesan, or common scold, be resident in the Ward.” Id. at 287. During the reign of Richard II, a woman found to be a common courtesan was required to dress in striped cloth, carry a white wand in her hand, and be taken to a pillory accompanied by minstrels where her crime was to be proclaimed to the people, after which time she was to be marched off to jail. Repeat offenders were required to have their hair cut and were exiled from the city. Id. at 395.

27 That statute survived well into the twentieth century. See Oregon Laws, VI, title XIX, ch VII, § 2089, p 1235 (1920).

28 The term derived from the verb “bawd,” which meant “[t]o procure; to provide women for lewd purposes.” Webster, 1 An American Dictionary of the English Language (1828).