State v. Woodcock , 75 Or. App. 659 ( 1985 )

YOUNG, J.

Defendant appeals his conviction for furnishing obscene materials to minors, a Class A misdemeanor. ORS 167.065(2). He argues on appeal that the trial court erred in overruling his demurrer, because ORS 167.065(1)(b) is unconstitutionally overbroad under Article I, section 8, of the Oregon Constitution.¹ We agree and reverse.²

Defendant sold lapel buttons containing slogans not fit for print in these pages.³ He was convicted of furnishing material containing obscenities to minors in violation of ORS 167.065(1)(b), which provides in part:

“(1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, he furnishes to a minor:

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“(b) Any book, magazine, paperback, pamphlet or other written or printed matter * * * which contains * * * obscenities * * *.”

ORS 167.060(3) and 167.060(7) provide:

“(3) ‘Furnishes’ means to sell, give, rent, loan or otherwise provide.

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“(7) ‘Obscenities’ means those slang words currently generally rejected for regular use in mixed society, that are used to refer to genitals, female breasts, sexual conduct or excretory functions or products, either that have no other meaning or that in context are clearly used for their bodily, sexual or excretory meaning.”

ORS 167.065(1) (b) essentially prohibits furnishing minors with any printed matter containing “dirty words” no matter how incidental the objectionable language is in the context of the work as a whole.

Even if Article I, section 8, encompassed only the protections of the First Amendment,⁴ ORS 167.605(l)(b) is unconstitutionally overbroad. First Amendment rights with respect to the dissemination of obscene materials to minors are more limited than with respect to adults. See Ginsberg v. New York, 390 US 629, 88 S Ct 1274, 20 L Ed 2d 195 (1968). However, even as to minors, the Supreme Court has held that the First Amendment requires that the work be judged as a whole. See Erznoznik v. City of Jacksonville, 422 US 205, 213, 95 S Ct 2268, 45 L Ed 2d 125 (1975).

The state argues that that requirement is met if the statute is read in conjunction with the affirmative defense provided by ORS 167.085(3):

“In any prosecution under ORS 167.065 * * * it is an affirmative defense for the defendant to prove:

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“(3) That the defendant was charged with the sale, showing, exhibition or display or an item those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some legitimate purpose therein other than titillation.”

However, in State v. Frink, 60 Or App 209, 653 P2d 553 (1982), we held that ORS 167.065(1)(a), which proscribed the furnishing of materials that depict nudity, was unconstitutionally overbroad in that it prohibited all depictions of nudity regardless of erotic content. We rejected the state’s argument that the statute could be saved by construing the prohibition in conjunction with the defense under ORS 167.085(3), because the defense only applies to the “sale, showing, exhibition or display of materials” while the crime of “furnishing” includes giving, renting, loaning, and otherwise providing material.

Our reasoning in Frink applies here. Because ORS 167.065(1)(b) applies to the giving, renting, loaning or otherwise providing materials containing “obscenities,” regardless of the significance of the words in the context of the work taken as a whole, the statute is unconstitutionally overbroad under the Oregon Constitution. State v. Frink, supra.

Reversed.

1 Article I, section 8 provides:

“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write or print freely on any subject whatever; but every person shall be responsible for abuse of this right.”

2 Defendant also argues that ORS 167.065(1)(b) is unconstitutionally overbroad under the First and Fourteenth Amendments to the United States Constitution. Because we resolve this case under the Oregon Constitution, we need not address defendant’s federal claim. State v. Spencer, 289 Or 225, 228, 611 P2d 1147 (1980).

3 Not even in a footnote.

4 It does not. In some cases, Article I, section 8, provides more protection to the citizen than does the First Amendment. Deras v. Myers, 272 Or 47, 64, 535 P2d 541 (1975).