State v. House , 66 Or. App. 953 ( 1984 )

ROSSMAN, J.,

dissenting.

The majority has concluded that ORS 167.062 is overbroad because it “prohibits expression that is protected by Article I, section 8.” Thus, once again, this court has wielded its mighty axe, and struck down another legislative act as unconstitutional. Because I think that the majority may have misconstrued its role in cases of this type, and because I believe that it has overlooked a reasonable interpretation of ORS 167.062 which avoids overbreadth, I must dissent.

I begin by noting that our mission in a case like this one is not to pass judgment on the wisdom of the legislature’s attempt to regulate morality. Approval or disapproval of the legislature’s motive is irrelevant. Rather, we are to concern ourselves solely with whether the challenged statute is constitutional and we are obligated to uphold its validity if at all possible. See City of Portland v. Derrington, 253 Or 289, 292, 451 P2d 111, cert den 396 US 901 (1969); City of Portland v. White, 9 Or App 239, 495 P2d 778, rev den (1972). This obligation to uphold legislative acts requires this court to literally rescue a statute from unconstitutionality by adopting a narrowing construction if it can be done “without departing too far from what the legislature sought to accomplish or what the statute itself can convey to a reader.” State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982).

“A narrowing construction similarly may save a statute attacked as ‘overbroad,’ unless the constitutional guarantee invoked against the statute forbade its very enactment as drafted. * * *”

The initial question therefore is whether ORS 167.062 is facially unconstitutional, i.e., is the conduct which the statute proscribes a form of expression protected by Article I, section 8. After examining the statute head-on, I am convinced that there is no problem with its facial validity. It concerns a form of conduct to which constitutional protections have not been extended. See generally, City of Portland v. Derrington, supra (where the Supreme Court held that the elements of communication which are incidental to appearing topless in a bar or restaurant lack enough significance to warrant First Amendment protection for that form of conduct); see also State v. Tidyman, 54 Or App 640, 635 P2d 1355 (1981), rev den 292 Or 722 (1982) (where we relied on the Derrington rationale to sustain the denial of a motion to dismiss a prosecution brought under ORS 167.062).

Having passed that initial test, the statute is now open to a narrowing construction to avoid overbreadth. State v. Robertson, supra, 293 Or at 412. In this case, a principled construction limiting the scope of the statute to conduct which lacks constitutional protection is not difficult to achieve. We begin by examining the kind of conduct which the legislature sought to discourage as it is described by the language of the statute. ORS 167.062 proscribes the following during a live public show: sado-masochistic abuse or masturbation, intercourse and the touching of breasts, genitals or buttocks in an act that is apparently sexually stimulating or gratifying. The proscription covers a person touching his or her own body, another person’s, and conduct engaged in by a person and an animal. The fact that the legislature specifically listed sado-masochistic abuse, actual masturbation, intercourse and human/animal encounters as examples of the kind of conduct this statute prohibits tends to illustrate that it is directed only at shows involving acts of gross sexuality. We discern a marked difference between the type of live public show this statute applies to and performances of “Romeo and Juliet” and “Swan Lake.”

The former category is comprised of shows in which sexual conduct is engaged in as an end in itself. “Sexual conduct” is the justification for the existence of these shows, it dominates the performance, attracts people and sells tickets. Defendant’s performance clearly constituted a “live public show” of the type ORS 167.062 was intended to prohibit. After disrobing, defendant danced from the stage out into the audience. At one point, he approached a seated woman, raised one leg up on the arm of her chair and danced while thrusting his pelvis to within inches of her face. At least 20 women reached into the front of his G-string. Defendant’s buttocks were also stroked, pinched and fondled. During defendant’s performance, the announcer made continuous remarks about sexual subjects and defendant’s anatomy, i.e., “his pistol is for shooting but his gun is for fun.” The announcer told the audience that all of their fantasies would be fulfilled and that they would have a “double orgasm.” With regard to the fondling of dancers, the announcer told the women, “If it feels like a hamster don’t squeeze it.” These remarks became more graphic as the night progressed. There were doodle pads on the tables and the announcer encouraged members of the audience to write comments and poems. He promised to read the “nasty” ones aloud. Defendant eventually concluded his performance by turning his back to the audience, bending over and pulling his G-string down in the back, completely exposing his buttocks.

On the other hand, performances of Shakespeare, “Swan Lake” and “South Pacific” are valued for more than their sexual aspects. The “sexual conduct” in which Romeo and Juliet might engage is incidental to the main point of the play. It is merely part of an overall performance, the many parts of which are simply means to an end, i.e., the depiction of realistic characters in a believable story. Anyone who has seen “South Pacific” knows that any similarity between Ezio Pinza’s performance and defendant’s is purely coincidental. Moreoever, Romeo’s acting was never intended to motivate members of the audience to stuff monetary trinkets into his leotards and fondle his private parts. In fact, one of the most striking differences between defendant’s performance and all the theatrical productions referred to in the majority opinion is that none of the latter rely on audience participation for their sexual content.

Accordingly, I would construe ORS 167.062(1) to cover only those live public shows in which sado-masochistic abuse, masturbation, intercourse and acts of “gross sexuality” are the exclusive theme. I therefore would reject defendant’s constitutional challenge.

Even assuming that the majority is correct, I still see no reason to strike down the entire statute. The only part of ORS 167.062 identified by the majority as overbroad is the phrase:

“* * * any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”

Apparently, it concedes that the rest of the statute lacks constitutional problems. This is not surprising. I have been unable to think of any legitimate theatrical production involving actual intercourse, actual masturbation or sado-masochistic abuse. Accordingly, I believe that, instead of striking down the entire statute with our judicial axe, we should simply prune out the diseased limb. See ORS 174.040; State v. Cantwell, 66 Or App 848, 852, 676 P2d 353 (1984). That can easily be accomplished here by simply excising that portion of the definition of sexual conduct which the majority has invalidated. Such an approach would result in a new, narrower definition of sexual conduct under ORS 167.060(10). That definition would provide that “sexual conduct means masturbation [or] sexual intercourse.” The remainder of ORS 167.062 would remain intact, and through its incorporation of the new definition of sexual conduct, it would apply to a narrower range of behavior. Because that narrower range of behavior would not include touching of the genitals, breasts or buttocks in an apparently sexual manner, there should be no constitutional problems.