State v. Moyle

• Decision Date: 21 December 1983
• Citation: 673 P.2d 1366,66 Or.App. 274
• Parties: STATE of Oregon, Appellant, v. Kenneth Allen MOYLE, Respondent. DA 240844-8208; CA A28286.
• Court: Oregon Court of Appeals

Page 1366

673 P.2d 1366

66 Or.App. 274

STATE of Oregon, Appellant, v. Kenneth Allen MOYLE, Respondent.

DA 240844-8208; CA A28286.

Court of Appeals of Oregon.

Argued and Submitted Sept. 20, 1983.

Decided Dec. 21, 1983.

Jan Peter Londahl, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer Atty. Gen., and James E. Mountain, Sol. Gen., Salem.

Marcia Levy, Metropolitan Public Defender, Portland, argued the cause and filed the brief for respondent.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Defendant is charged with two counts of "conveying a telephonic threat to inflict serious physical injury" in violation of Oregon's harassment statute. ORS 166.065(1)(d). In the first count, he is accused of threatening to kill the victim and her family and to bomb her home and car. In the second count, he is accused of threatening to kill a different victim "and children and to kidnap and rape children."

Before the time set for trial, defendant filed a written demurrer, challenging the statute on a variety of grounds. After legal argument was heard on the issues, the trial judge entered a letter opinion agreeing with defendant on his principal contention that the statute violated Article I, section 8, of the Oregon Constitution. He then dismissed the two charges against defendant. The state appeals. We are unable to accept the proposition that the alleged threats in this case qualify as protected speech. Accordingly, we reverse.

ORS 166.065(1)(d) provides:

"(1) A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, the actor:

" * * *

"(d) Subjects another to alarm by conveying a telephonic or written threat to inflict serious physical injury on that person or to commit a felony involving the person or property of that person or any member of that person's family, which threat reasonably would be expected to cause alarm."

This statute ¹ was enacted in 1981 to replace the telephone harassment statute, ORS 166.065(1)(c) (amended by Or Laws 1981, ch. 468, § 1), which had been declared unconstitutional in State v. Blair, 287 Or. 519, 601 P.2d 766 (1979). The old statute provided:

"(1) A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, he:

" * * *

"(c) Communicates with a person, anonymously or otherwise, by telephone, mail, or other form of written communication, in a manner likely to cause annoyance or alarm."

The Supreme Court determined that that statute was unconstitutionally vague. However, the court did not reach the freedom of speech issues raised in this appeal.

Defendant argues, as he did below, that ORS 166.065(1)(d) is unconstitutional, because it conflicts with Article I, section 8, of the Oregon Constitution. As the primary source for that assertion, he relies on State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), in which the Supreme Court held that ORS 163.275, the coercion statute, was overbroad and therefore invalid. Defendant also argues that the statute remains impermissibly vague despite the legislative response to the Blair case. The vagueness argument was specifically rejected by the trial court.

Defendant contends that, because the First Amendment claim was not reached by the trial court, it cannot be raised on appeal. Without addressing the merits of that contention, we note that, in this context, Article I, section 8, offers greater free speech protections than the First Amendment. See State v. Robertson, supra. Consequently, reliance on the federal Constitution would not cause us to reach a different result in resolving this case.

Article I, section 8, provides:

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

Recently, the Supreme Court has said that

" * * * this guarantee forecloses the enactment of prohibitory laws, at least in the form of outright prohibitions backed by punitive sanctions, that in terms forbid speech or writing 'on any subject whatever,' unless it can be shown that the prohibition falls within an original or modern version of a historically established exception that was not meant to be ended by the liberating principles and purposes for which the constitutional guarantees of free expression were adopted. * * * " In Re Lasswell, 296 Or. 121, 673 P.2d 855 at 857 (1983).

Only if it passes this initial test is a statute open to scrutiny of its application to particular facts or for overbreadth. State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569.

The state asserts that ORS 166.065(1)(d) is confined within a historically recognized exception. As evidence of this assertion, it offers the English Waltham Black Act of 1723, which prohibited threats to commit felonies made under certain circumstances. Although that Act was intended principally to deal with conduct somewhat different than the conduct proscribed by the statute under scrutiny here, it nevertheless prohibited speech in the form of threats to commit felonies. This fact, together with our inability to find present-day authority holding that speech of the kind involved here is protected, convinces us that ORS 166.065(1)(d) does indeed fall within a modern version of a historically established exception.

That conclusion allows us to advance to the next step in the analysis and examine ORS 166.065(1)(d) for overbreadth.

" * * * [A] law is overbroad to the extent that it announces a prohibition that reaches conduct which may not be prohibited. A legislature can make a law as 'broad' and inclusive as it chooses unless it reaches into constitutionally protected grounds. * * * " State v. Blocker, 291 Or. 255, 261, 630 P.2d 824 (1981).

Under Article I, section 8, this means that the legislature is allowed to infringe on the right to speak and write freely, only to the extent that it does not intrude into an area of constitutionally protected speech. In Robertson, the coercion statute, ORS 163.275, was declared unconstitutional due to its overbreadth. The statute prohibited the actor from compelling or inducing another to comply with a demand through the use of several enumerated means. ² It was found to be at least facially constitutional, because it focused on the forbidden effect of frightening another person into a nonobligatory and undesired course of conduct. However, its prohibitions were determined to reach protected communications, so it was deemed overbroad. ³ The Supreme Court said:

"A notable characteristic of ORS 163.275 is that it requires neither the conduct demanded of the victim nor the action threatened in case of refusal to be wrongful. It therefore does not fit into the constitutional analysis of solicitation, conspiracy, advice, or other verbal participation in another's criminal act, nor is it confined to threats of crimes or torts against an uncooperative victim, as in a robbery or rape. * * * " 293 Or. at 418, 649 P.2d 569.

In contradistinction, ORS 166.065(1)(d) is directed only at instances in which the action threatened is itself wrongful. By its very terms, it is only concerned with threatened commission of felonies and infliction of "serious physical injuries." Inasmuch as any intentional infliction of serious physical injury would most certainly be...