City of Nyssa v. Dufloth/Smith

• Decision Date: 30 October 2002
• Parties: CITY OF NYSSA, Respondent, v. Sally A. DUFLOTH, Appellant. City of Nyssa, Respondent, v. Duane L. Smith, Appellant.
• Court: Oregon Court of Appeals

57 P.3d 161
184 Or.App. 631

CITY OF NYSSA, Respondent,
v.
Sally A. DUFLOTH, Appellant.
City of Nyssa, Respondent,
v.
Duane L. Smith, Appellant

A00080111 and A00080112; A113180 and A113181 (Control).

Court of Appeals of Oregon, En Banc.

Argued and Submitted February 25, 2002.

Resubmitted August 7, 2002.

Decided October 30, 2002.

57 P.3d 162

Laura Graser, Portland, argued the cause and filed the briefs for appellants

James N. Westwood, Portland, argued the cause for respondent. With him on the brief were Scott E. Crawford, Stoel Rives LLP, Gary Kiyuna and Stunz, Fonda, Kiyuna & Horton.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER, and SCHUMAN, Judges.

Resubmitted En Banc August 7, 2002.

KISTLER, J.

The City of Nyssa enacted an ordinance that requires nude dancers to remain at least four feet away from the audience. The municipal court convicted defendants of violating that ordinance, and the circuit court upheld the convictions. On appeal, defendants argue that the city's ordinance violates Article I, section 8, of the Oregon Constitution. We affirm.

Defendants operate Miss Sally's Gentlemen's Club in the City of Nyssa. On February 27, 2000, the city cited defendants for "allowing dancing within 4 ft" of the audience in violation of the Nyssa City Code (NCC). Subsection 5.10.130(17) of that code provides:

"No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron."¹

The municipal court found that defendants had allowed the audience to come within four feet of the dancers in violation of the city's ordinance and fined each defendant $185. On appeal to the circuit court, defendants

57 P.3d 163

demurred to the indictment. See ORS 221.359. The circuit court overruled the demurrer and found defendants guilty of violating the ordinance

On appeal, defendants assign error to the circuit court's ruling denying their demurrer. See ORS 221.360. They argue that the city's ordinance, which they characterize as a restriction on nude dancing, impermissibly regulates expression in violation of Article I, section 8.² The city responds that, not only has the Oregon Supreme Court not held that nude dancing is protected expression under Article I, section 8, but that our reasoning in State v. Ciancanelli, 181 Or. App. 1, 45 P.3d 451, rev. pending (2002), compels the conclusion that nude dancing is not protected expression, at least under the state constitution.³ The city argues alternatively that, even if nude dancing is protected expression, the city's ordinance is not an impermissible restraint on expression. In the city's view, a dancer remains free to express him- or herself however he or she wishes. The only restriction the city's ordinance imposes is on the audience; it must stay a reasonable distance away from the dancers.

The concurring and dissenting opinions divide over the question whether a time, place, and manner regulation imposed on a particular kind of expression is a law directed at an effect or one directed at expression. The concurring opinion reasons that the ordinance satisfies Article I, section 8, because it "focus[es] on the effects or harms that could occur because of the close proximity of patrons to nude dancers and the potential of sexual contact between them." 184 Or.App. at 639, 57 P.3d at 165 (Edmonds, J., concurring). One of the dissenting opinions reasons that the ordinance regulates a type of expression, nude dancing, in order to prohibit an effect, sexual contact between the dancers and the patrons and that the failure to prohibit the effect itself makes the ordinance facially unconstitutional. 184 Or.App. at 657-58, 57 P.3d at 175-76 (Schuman, J., dissenting). The other dissenting opinion would hold that the ordinance suffers from an additional defect. 184 Or.App. at 653, 57 P.3d at 173. (Armstrong, J., dissenting). In its view, the ordinance regulates performers "who use nudity in their expressive work" differently from other performers and thus runs afoul of Article I, section 8. Id.; see also League of Oregon Cities v. State of Oregon, 334 Or. 645, 56 P.3d 892 (2002).

In City of Portland v. Tidyman, 306 Or. 174, 184, 186, 759 P.2d 242 (1988), the court held that a similar time, place, and manner regulation—an ordinance that zoned adult businesses to prevent urban blight— was "flatly directed against one disfavored type of pictorial or verbal communication" and thus facially unconstitutional under Article I, section 8.⁴ We need not decide the issue that divides the concurrence and the dissents—whether the time, place, and manner regulation at issue here is aimed at an effect or, like the ordinance at issue in Tidyman, "is flatly directed against one disfavored type [of expression]." See id. Even if the ordinance is directed at expression, under Ciancanelli, nude dancing comes within a well-established historical exception to Article I, section 8, and is thus not protected expression for the purposes of the state constitution.

In State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982), the court held that Article I, section 8, of the Oregon Constitution

57 P.3d 164

"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."

As the court explained, Article I, section 8, contains both a broad prohibition and an exception. As a general rule, Article I, section 8, prohibits the enactment of any law that is written in terms directed at speech rather than effects.⁵ Id. That principle requires the legislature to specify the effects it intends to prohibit instead of using speech as a proxy for those effects. Tidyman, 306 Or. at 185-86, 759 P.2d 242.⁶ The prohibition is not absolute, however, as the court was quick to recognize in Robertson. If a law was historically well established and one that the guarantee of free expression was demonstrably not intended to reach, then that law and its contemporary variants survive the adoption of Article I, section 8, even though they expressly prohibit expression.

The Robertson court did not identify the analytical basis for the historical exception it announced. It noted, however, numerous examples of laws that were directed at the content of speech and that existed before the Oregon Constitution was adopted. It apparently declined to assume that, in prohibiting the legislature from enacting laws directed at speech, the framers of Oregon's constitution intended to render those well-established laws unconstitutional. See Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (applying a similar analysis in a different context). It follows that, in asking whether a law comes within a well-established historical exception within the meaning of Robertson, the proper focus is on the intent of the framers measured by the test that the court articulated in Robertson. See Ciancanelli, 181 Or.App. at 21, 26, 45 P.3d 451.

In this case, we need not undertake that historical inquiry because we have already done so in Ciancanelli. In Ciancanelli, we considered whether a statute that prohibits persons from presenting "a live public show in which the participants engage in * * * sexual conduct" violates Article I, section 8. 181 Or.App. at 5, 45 P.3d 451. Because that statute was directed at "live public show[s]," we assumed that it was written in terms directed at expression. Id. at 7, 45 P.3d 451. We held, however, that the statute did not violate Article I, section 8, because it was wholly contained within a well-established historical exception. Id. at 19, 45 P.3d 451. In reaching that conclusion, we explained that "eighteenth- and nineteenth-century statutes and case law reflect the widespread—if not universal—regulation of public exposure of the genitals." Id. at 16, 45 P.3d 451. We reasoned that, if the framers had understood that laws regulating public nudity would survive the adoption of Article I, section 8, it necessarily followed that laws regulating public sexual conduct would survive as well. Id.

Our reasoning in Ciancanelli establishes that prohibitions against both public nudity and public sexual conduct come within a well-established historical exception. We relied on the clearly established prohibition against the former to conclude that laws regulating the latter also qualify as a historical exception to Article I, section 8. Under Ciancanelli, the City of Nyssa's ordinance regulating nude dancing does not violate Article I, section 8.⁷

57 P.3d 165

We note that we reached a different conclusion in Sekne v. City of Portland, 81 Or. App. 630, 726 P.2d 959 (1986), rev. den., 302 Or. 615, 733 P.2d 450 (1987). In that case, we held that nude dancing is protected expression under Article I, section 8. We did not decide, however, in Sekne whether laws regulating nude dancing come within a historical exception to Article I, section 8. See id. at 637, 726 P.2d 959. Rather, relying in part on First Amendment cases, we reasoned that nude dancing is protected under the state as well as the federal constitution. Id. at 637-38, 726 P.2d 959. Not only does our reliance on federal authority undercut the force of our state constitutional analysis in Sekne, see Nelson v. Lane County, 304 Or. 97, 102, 743 P.2d 692 (1987) (plurality), but our holding in Sekne cannot be reconciled with our later en...