City of Portland v. Ayers , 93 Or. App. 731 ( 1988 )

DEITS, J.

Defendant appeals his conviction for violating section 14.24.160 of the Portland City Code by operating a “sound reproducing device on a public right-of-way so as to be plainly audible fifty feet or more from the device.” He assigns error to the overruling of his demurrer to the complaint, through which he asserted that the code provision violates the speech provisions of the state and federal constitutions, Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment. We affirm.

Defendant’s conviction resulted from his use of a portable loudspeaker to amplify anti-abortion statements which he addressed to persons entering the Lovejoy Surgicenter. Section 14.24.160, under which defendant was charged, proscribes the operation of

“any device designed for sound production or reproduction, including, but not limited to, any radio, television set, musical instrument, phonograph, loud speaker, bell or chime, in such a manner as to cause a noise disturbance * * * or to operate or permit the operation of any such device between the hours of 10:00 p.m. and 7:00 a.m. so as to be plainly audible within any dwelling unit which is not the source of the sound; or to operate any such device on public property or on a public right-of-way so as to be plainly audible 50 feet or more from such device provided that a person operating any such device in a City park pursuant to a permit granted by the Commissioner In Charge of the Park Bureau shall be in violation only if the device is plainly audible at any point along the park boundary. Violation of this Section shall be punishable by a fine of up to $500.” (Emphasis supplied.)

At the time that defendant was charged, section 18.12.020 of the code contained provisions materially similar to those of section 14.24.160. However, chapter 18.14 of the code contained certain exemptions to the requirements of section 18.12.020 and allowed persons to apply for variances. Subsection (3)(b) of section 18.12.020 established permit procedures. Section 14.24.160 did not include similar permit, exemption or variance procedures. Defendant argues that that disparity violates the equal privileges and immunities provision of the state constitution and the Equal Protection Clause of the federal constitution, because

“a person desiring to be excused from complying with Section 18.12.020(3)(b) can obtain a permit, exemption or variance, permitting him to do what is forbidden by Section 14.24.160.

“The result is that one person using a loudspeaker can be arrested and convicted for violating Section 14.24.160, while another person with a Section 18.12.020(3)(b) permit, exemption or variance is not arrested and convicted.”

Defendant does not contend that he applied for a permit, variance or exemption. Consequently, the reason why the Title 18 exception procedures could not apply to him is that he did not attempt to use them. Having voluntarily placed himself in the “disfavored” category, defendant cannot complain on equal protection or equal privileges and immunities grounds. See, e.g., Nicoll v. City of Eugene, 52 Or App 379, 384-85, 628 P2d 1213, modified on unrelated grounds, 53 Or App 528, 632 P2d 502 (1981). However, the more fundamental defect in his argument is its mistaken premise that the city has classified different persons as being subject to section 14.24.160 or to the provisions of Title 18. Both apply to all persons within the city’s jurisdiction. Therefore, there is no classification upon which defendant can base his argument that the ordinances are facially discriminatory. Defendant does not argue that they have been applied in an unconstitutionally disparate manner or that the city has made an impermissible election to charge him under one ordinance rather than the other. See State of Oregon v. Pirkey, 203 Or 697, 281 P2d 698 (1955); State v. Hodgdon, 31 Or App 791, 571 P2d 557 (1977), rev den 282 Or 537 (1978); see also State v. Freeland, 295 Or 367, 667 P2d 509 (1983). His Article I, section 20, and Fourteenth Amendment arguments are without merit.

Defendant next argues that section 14.24.160 regulates communicative activities in ways that are impermissible under Article I, section 8, of the Oregon Constitution and the First Amendment. We turn first to the Oregon constitutional issue. The parties devote much attention to City of Portland v. Aziz, 47 Or App 937, 615 P2d 1109 (1980), where we sustained a provision of section 14.24.160, other than the one in issue here, against various First Amendment challenges advanced by the defendant. However, Aziz did not concern Article I, section 8. We said there that the “defendant relies on the First Amendment to the United States Constitution. He does not rely on Article I, section 8 of the Oregon Constitution.” 47 Or App at 943 n 7.

Defendant’s arguments on the constitutional free speech provisions appear to be that the city’s ordinance “prohibits” speech. However, the ordinance obviously does not prohibit speech. Assuming that defendant means that section 14.24.160 regulates speech rather than prohibiting it, his argument still does not succeed. The ordinance does not regulate speech or the content of speech; the regulatory objective is amplified noise, an effect of speech, which Article I, section 8, permits the city to regulate. State v. Robertson, 293 Or 402, 412, 416-17, 649 P2d 569 (1982); see also State v. Ray, 302 Or 595, 733 P2d 28 (1987); State v. Moyle, 299 Or 691, 705 P2d 740 (1985); State v. Harrington, 67 Or App 608, 680 P2d 666, rev den 297 Or 547 (1984).

In City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), the Supreme Court reiterated that regulations which are directed at effects of speech, and which do not treat different speech differently on the basis of content, enjoy a wide margin of constitutional permissibility. The court said that, unlike the “adult business” ordinance before it in Tidyman, which was “flatly directed against one disfavored type of pictorial or verbal communication,” 306 Or at 184,

“[a] regulation is not always unconstitutional because it restricts one’s choice of a place or time for self-expression or religious practice, when that is not the object of the regulation. The concern may be with the medium, not the message, as when park regulations ban fireworks even for a Fourth of July celebration. To decline an exception from a land-use regulation for a theater, a printing plant or a church differs from attempting to restrict prayer meetings, film showings or desk-top publishing in a residence, or in turn from enforcing safety codes or parking restrictions when a residence is so used. Similarly it can make a difference whether a city imposes a permissible limitation on all location, time, manner, intensity, or invasive effect of some communicative activity (for instance, zones out all bookstores along with other commercial shops, or restricts all use of soundtrucks in residential areas to specified hours) or whether it concludes that limitations on number, frequency, density, or duration suffice to serve the city’s regulatory objective. This court has never held that an otherwise valid restriction must cover all or nothing, for instance that a city may not make evenhanded exceptions to an otherwise valid restriction against placing signs on utility poles, obstructing traffic for a civil rights commemoration, or using soundtrucks during a political campaign without having to make the same equally available to supporters of sports teams or to commercial advertisers. But that does not help the city here. This ordinance does not allocate priorities in intermittent and temporary exceptions or in use of scarce opportunities created by the city itself * * *.” 306 Or at 182. (Footnotes omitted.)

The ordinance challenged in this case regulates an “invasive effect” of all communicative (and noncommunicative) activity and regulates that effect in the same way regardless of the nature or content of the communication or other activity that produces it.

The dissent apparently agrees that section 14.24.160 regulates an effect of speech rather than speech itself. Nevertheless, the dissent would hold that the ordinance is over-broad and, therefore, violates Article I, section 8. The problem with the dissent’s position is that defendant makes no Article I, section 8, overbreadth argument in this appeal. The dissent attempts to find such an argument in defendant’s presentations to the trial court and in his briefs and oral argument here. It is correct, as the dissent points out, that the over-breadth issue was raised in the trial court proceedings. However, that is irrelevant. The arguments that defendant makes to us define the scope of our inquiry. Indeed, given defendant’s clear and profuse reliance on the overbreadth issue in the trial court, the absence of argument on that issue in his appellate presentation indicates that he has chosen to rely on other issues instead and has abandoned the overbreadth issue that he raised below.

The dissent identifies one statement in defendant’s opening brief that it regards as the nucleus of an overbreadth argument, i.e., “a regulation impinging on permissible free speech must be narrowly drawn to serve a compelling governmental interest.”¹ We agree that that statement is the closest that defendant comes to raising an Article I, section 8, over-breadth issue in this appeal, but we do not agree that he has come close enough. In the first place, the statement is derived from First Amendment jurisprudence. The “compelling state interest” test to which it refers is a federal concept, which the Oregon Supreme Court, in State v. Robertson, supra, and later cases, appears to have said is inapplicable to Article I, section 8. More fundamentally, defendant’s bare statement is not an argument at all. It is a truism, which he does not tie to the ordinance that he challenges, does not flesh out with authority or analysis and does not develop into an argument. Despite the dissent’s assiduous efforts to stretch and convert defendant’s statement into an overbreadth contention, nothing in his briefs can reasonably be read as including — or intending to include — that issue among his Article I, section 8, complaints.

The dissent also asserts that defendant raised the overbreadth issue in his oral argument before this court. However, in the absence of anything to raise the issue in defendant’s opening appellate brief, the references to overbreadth that the dissent ascribes to his attorney’s oral argument would not suffice to preserve the issue, even if the dissent were correct in its understanding that counsel’s oral remarks were aimed at that issue. We note, however, that we do not agree with that understanding. The full context of the portion of the argument from which the dissent quotes appears to be aimed at the same point which defendant’s briefs make — that the ordinance proscribed his speech.

The dissent also appears to take the view that it is not incumbent on defendant to raise the overbreadth issue specifically, if he has made the general contention that the ordinance violates Article I, section 8. However, under State v. Robertson, supra, and its progeny, overbreadth is a very distinct inquiry in the Article I, section 8, analytical scheme. Overbreadth cannot become a consideration unless, contrary to defendant’s argument, the legislation directly regulates something which can permissibly be regulated, i.e., an effect of speech rather than speech or its content. Stated another way, legislation cannot intrude upon protected activity through its overbreadth if it has the more immediate defect of regulating an activity that cannot constitutionally be regulated at all. Defendant could, of course, have supplemented his argument that the ordinance “prohibits” speech with an alternative overbreadth contention. However, he did not. We cannot agree that a party’s raising of an issue under Article I, section 8, implicitly raises all other potential issues which can arise under that provision.

A number of recent decisions by the Supreme Court and this court deal generally with the raising and preservation of constitutional issues. We note initially that the situation here differs from the one presented in most of those cases. The overriding problem they address is whether and when state law issues should be reached, and federal constitutional questions should be avoided, if the appellant has not raised or adequately raised state law issues. Here, defendant has raised identifiable issues of state law, including the issue of impermissible regulation of speech under Article I, section 8. The question is not whether we should reach any state law questions, but whether we should go beyond defendant’s arguments and consider state law issues in addition to the ones that he elects to raise.

In State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983), the court rejected the state’s argument that it should not reach a state constitutional issue “because it was not adequately argued” in the trial court. 295 Or at 265. The principal reason for that conclusion was the court’s concern that state law issues be decided before reaching federal constitutional questions. The court noted that, unlike the parties’ presentations in the trial court, they and an amicus had provided “extensive briefs” on the state constitutional question to assist the court on review. 295 Or at 268.

Notwithstanding the court’s statements in Kennedy about its ability to reach state constitutional questions that were not adequately presented below, it made it clear that it adhered to traditional preservation and presentation requirements in connection with state questions that were not raised at all on appeal. It said:

“On many occasions, this court has decided cases in which a defendant not only failed to brief but wholly failed to raise anything but a federal claim. In recent cases we have taken care to point this out, so that our decision is not misunderstood to foreclose any potential issue of state law for the future. See, e.g., State v. Farber, 295 Or 199, 666 P2d 821, n. 10 (1983); State v. Roberti, 293 Or 59, 644 P2d 1104, rev’d on other grounds 293 Or 236, 646 P2d 1341 (1982); State v. McMurphy, 291 Or 782, 786, 635 P2d 372 (1981); State v. Brown, 291 Or 642, 634 P2d 212 (1981).” 295 Or at 268.

Similarly, we said in State v. Cochran, 72 Or App 499, 696 P2d 1114 (1985):

“Although we are mindful of the rule that ‘all questions of state law be considered and disposed of before reaching a claim that this state’s law falls short of a standard imposed by the federal constitution on all states,’ [citing State v. Kennedy, supra,] we decide the case under the federal constitution, because defendant seems only to have made federal claims.” 72 Or App at 511.

In State v. Henry, 78 Or App 392, 717 P2d 189 (1986), the plurality of this court held that ORS 167.087, which criminalized the dissemination of obscene material, violated Article I, section 8, because it was vague. We noted that the “focus of defendant’s argument on appeal is that ORS 167.087 violates Article I, section 8, under the analysis developed by the Supreme Court in State v. Robertson, supra.” However, after observing that the defendant had also raised vagueness in his demurrer to the indictment and in his arguments to us, we concluded that the “vagueness issue has been adequately raised below and on appeal.” 78 Or App at 396 n 6. See also the dissenting opinion of Van Hoomissen, J., 78 Or App at 407 n 2.

On review in Henry, 302 Or 510, 732 P2d 9 (1987), the Supreme Court did not agree that the vagueness issue had been raised, and it commented:

“The Court of Appeals reversed the convictions, holding that ORS 167.087 is unconstitutionally vague. Defendant had not made an argument based on vagueness apart from his claim under Article I, section 8, but we understand the Court of Appeals to have seen the two issues as related. Although we proceed to decide the constitutional issue as presented, we should say a word about the vagueness issue.” 302 Or at 513.

After a paragraph of dictum about vagueness, the court went on to hold the statute unconstitutional on the ground raised by the defendant: that it censored and regulated the content of speech. Although the Supreme Court said so less directly than we did, both courts’ opinions in Henry indicated that only the specific Article I, section 8, issues which they understood to be raised by the parties should be the bases for decision. See also State v. Robertson, supra, 293 Or at 407.

The case we find that lends the strongest support to the contrary understanding is State v. Blocker, 291 Or 255, 630 P2d 824 (1981), where the defendant challenged his conviction for possessing a “billy,” in violation of ORS 166.510(1), on the ground that the statute was overbroad. The court concluded that the challenge was sufficient to raise the question, which it had recently decided in State v. Kessler, 289 Or 359, 614 P2d 94 (1980), whether the statutory proscription abridged the right to bear arms under Article I, section 27, of the state constitution. The court explained:

“Thus defendant’s attack on ORS 166.510 as ‘overbroad’ impliedly asserted that it reached beyond permissible limits to impinge on a constitutionally protected right. This could only be the right to bear arms, although its source was not identified, as it should have been. The question is whether we should reject the attack for failure to cite its source. The fact is that we decided State v. Kessler, supra, after the present case had been tried and appealed. The case was held by the Court of Appeals for our disposition of Kessler. That court then decided it upon a correct interpretation of our decision in Kessler. The state’s petition for review asked us to consider whether the Court of Appeals had misapplied our interpretation of § 27.

“In these circumstances, we conclude that it is proper for us to consider defendant’s ‘overbreadth’ attack to mean that the statute swept so broadly as to infringe rights that it could not reach, which in this setting means the right to possess arms guaranteed by § 27.” 291 Or at 261.

The situation in Blocker was the converse of the one here. It may be correct that an overbreadth contention can “impliedly” refer to the substantive right that the putatively overbroad legislation invades. However, legislation that regulates a subject that cannot constitutionally be regulated at all is, by definition, not overbroad, and an argument such as defendant’s, that the regulation is impermissible per se, does not implicitly carry with it any overbreadth contention. Perhaps the greatest relevance of Blocker is that it demonstrates that preservation is the general rule by the very lengths to which it goes to fashion an exception, and by its express limitation of the exception to the circumstances of that case.

We do not intend to imply that the preservation rule is absolute. The cases that we have discussed emphasize that courts must have the ability to depart from the parties’ arguments on occasion, in the interest of such jurisprudential objectives as avoiding constitutional issues and deciding state law questions before federal ones. However, we do not agree with the view of the dissent that there is an absolute rule of non-preservation in cases involving speech or other constitutional issues, nor do we agree that this is an appropriate occasion to decide the issue not raised. He has made arguments about the state constitutional speech provision. However, those arguments do not include anything which comes close to the overbreadth issue. We also conclude that this is not an occasion, of the kind described in State v. Kennedy, supra, 295 Or at 268, to ask for additional briefing or argument on a state constitutional provision which a party cites as a seeming “afterthought” or raises but leaves unargued or unexplained. Defendant has presented an identifiable issue under Article I, section 8. The fact that that issue is not the one which the dissent regards as decisively favorable to him is no reason for the court rather than defendant to select or articulate his arguments. We hold that section 14.24.160 does not violate Article I, section 8, in any way that defendant urges.²

We also hold that it does not violate the First Amendment. Kovacs v. Cooper, 336 US 77, 69 S Ct 448, 93 L Ed 513 (1949); see also California v. LaRue, 409 US 109, 117, n 4, 93 S Ct 390, 34 L Ed 2d 342 (1972); Red Lion Broadcasting Co. v. FCC, 395 US 367, 386-87, 89 S Ct 1744, 23 L Ed 2d 371 (1969).

Affirmed.

1 Variations of that statement recur in defendant’s briefs.

2 Given the ground for our decision, we do not comment on the merits of the Article I, section 8, overbreadth issue.