City of Portland v. Gatewood

• Decision Date: 30 October 1985
• Citation: 76 Or.App. 74,708 P.2d 615
• Parties: CITY OF PORTLAND, Appellant, v. Martin L. GATEWOOD, Respondent. DA 279144; CA A34366.
• Court: Oregon Court of Appeals

Page 615

708 P.2d 615

76 Or.App. 74

CITY OF PORTLAND, Appellant, v. Martin L. GATEWOOD, Respondent.

DA 279144; CA A34366.

Court of Appeals of Oregon, In Banc.

Argued and Submitted May 6, 1985.

Decided Oct. 30, 1985.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Garrett A. Richardson, Portland, argued the cause and filed the brief for respondent.

Before GILLETTE, P.J., and RICHARDSON and VAN HOOMISSEN, JJ.

GILLETTE, Presiding Judge.

The City of Portland appeals the dismissal of a charge of indecent exposure against defendant, arguing that the trial court erred in granting defendant's demurrer and holding the City's indecent exposure ordinance to be overbroad. We reverse and remand for trial.

Portland City Code § 14.24.060, which defendant is accused of violating, reads:

"It is unlawful for any person to expose his or her genitalia while in a public place, or a place visible from a public place, if the place is open or available to persons of the opposite sex."

Defendant relies on Article I, section 8, of the Oregon Constitution and the First and Fourteenth Amendments to the United States Constitution for his claim that the Portland city ordinance is overbroad. We address defendant's state constitutional argument first. State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983).

Article I, section 8, of the Oregon Constitution 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 * * *."

Defendant argues that the ordinance is overbroad in that some of the conduct it proscribes is protected speech under the section. The trial court agreed, stating:

"Whether or not this ordinance is overbroad is the critical issue. Does this ordinance encompass permitted behavior? Unlike ORS 163.465(c) which outlaws exposure of genitalia 'with the intent of arousing the sexual desire of himself or another person', Portland City Code section 14.24.060 outlaws the act of exposure itself--i.e., nudity.

"In State v. Frink, 60 Or App 209 [653 P.2d 553] (1982) our Court of Appeals upheld the trial court which had granted defendant's demurrer to ORS 167.065(1)(a) which prohibited 'furnishing obscene materials to minors.' The challenged section prohibited distributing photographs to minors which depicted nudity.

"The court in Frink at page 212 held that the 'mere depiction of nudity may not be prohibited, because it infringes on the constitutionally protected right of free expression.' This case is not out of the wilderness, but follows cases in other states and U.S. Supreme Court cases which make nudity a form of permitted free expression. There can, of course, be some restrictions, but all examples cited by Frink and other cases require the addition of an erotic or obscene flavor to the act of nudity which is absent in the present ordinance. There is no difference in exhibiting a photograph of a nude person, showing genitals, to members of the public (as in Frink) or exhibiting the person to members of the public as Portland City Code section 14.24.060 seeks to prohibit. Nudity, without more, is not a crime.

"The demurrer is granted and the case dismissed."

The ruling was in error.

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

"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."

We explained in State v. Harrington, 67 Or.App. 608, 680 P.2d 666 (1984), that an Article I, section 8, challenge to a statute under Robertson essentially involves a two-step process. The first is to determine whether the Portland ordinance is "directed to the substance of any opinion or any subject of communication." As we noted in Harrington,

"Robertson explains the constitutionally significant distinction between legislation directed against the pursuit of a forbidden effect and a provision directed against speech itself:

'[A]rticle I, section 8, prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. * * * [L]aws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.' 293 Or at 416-17 [649 P.2d 569]." 67 Or.App. at 611, 680 P.2d 666.

Defendant argues that the ordinance in question here impinges on protected conduct as a form of free expression. We think, however, that it is clear from the terms of the ordinance that it is directed against an effect, in that it seeks to proscribe a specific type of conduct or act, i.e., nudity, from occurring in a public place or a place visible from a public place, which would or could have the effect of being offensive to viewers of the opposite sex. The ordinance does not in any way punish speech or the use of words in the traditional sense. ¹ Therefore, under our reading of Robertson, the ordinance as enacted does not on its face violate Article I, section 8, because it does not proscribe speech or any other communicative act per se. Accordingly, we do not reach the second step described in Harrington. ²

Our inquiry, however, does not end there. Once a law challenged under Article I, section 8, for overbreadth has been found to be constitutional as enacted, it still must be examined to see if "it nevertheless might be applied in a manner that would violate Art I, § 8." State v. Spencer, 289 Or. 225, 228, 611 P.2d 1147 (1980). That is, in addition to its permissible proscriptions, does the ordinance reach otherwise protected behavior?

The United States Supreme Court has granted protection to expressive or symbolic conduct that qualifies as speech due to its communicative character. See Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (displaying of United States flag with peace symbol attached to it); Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing of black armbands by students to protest Vietnam war); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (sit-in by Black students to protest segregation). We recognize that the prohibited conduct at issue here, i.e., appearing nude or exposing one's genitals in public, can constitute symbolic conduct and be a form of expression protected under Article I, section 8. Several examples will suffice to demonstrate the communicative aspect of such behavior: Lady Godiva's ride through Coventry to protest taxes; nude theatrical performances in outdoor arenas; or disrobing in public to protest the exploitation of females. See State v. Nelson, 178 N.W.2d 434 (Iowa 1970), cert.den. 401 U.S. 923, 91 S.Ct. 864, 27 L.Ed.2d 826 (1971). The ordinance may therefore be said to extend its prohibition into constitutionally protected areas.

However, even if legislation is susceptible to attack for such an alleged weakness, it may be saved by a narrowing construction to bring the proscription of the ordinance within constitutionally permissible limits. State v. Robertson, supra, 293 Or. 411-13, 649 P.2d 569. In fact, it is our duty to impose such a construction if it can be done without straining the boundaries of what the Portland city council sought to accomplish or what the ordinance itself conveys to a reader. State v. Robertson, supra, 293 Or. at 411, 649 P.2d 569.

The authority of a city to enact reasonable legislation to regulate conduct which is thought to be detrimental to the public's health, safety, or morals is indisputable. See City of Astoria v. Nothwang, 221 Or. 452, 351 P.2d 688 (1960); Morris v. City of Salem, 179 Or. 666, 174 P.2d 192 (1946); but see LaGrande/Astoria v. PER, 281 Or. 137, 576 P.2d 1204, rev. allowed 284 Or. 173, 586 P.2d 765 (1978); City of Portland v. Dollarhide, 71 Or.App. 289, 692 P.2d 162 (1984) (Joseph, C.J., specially concurring), rev.den. 298 Or. 704, 695 P.2d 1371 (1985). On that basis, bans on nudity per se have been upheld in other jurisdictions, usually in the context of constitutional challenges to ordinances or statutes dealing with public nudity, nude sunbathing or indecent exposure. See Eckl v. Davis, 51 Cal.App.3d 831, 124 Cal.Rptr. 685 (1975); Moffett v. State, 340 So.2d 1155 (Fla.1976); State v. Miller, 54 Hawaii 1, 501 P.2d 363 (1972); State v. Nelson, 178 N.W.2d 434 (1970), cert. denied 401 U.S. 923, 91 S.Ct. 864, 27 L.Ed.2d 826 (1971). But see People v. Hardy, 77 Misc.2d 1092, 357 N.Y.S.2d 970 (1974) ("nudity in itself is not prohibited and lewdness cannot be presumed from the mere fact of nudity"). ³ In relation to legislation regulating objectionable conduct, the Oregon Supreme Court has said:

"The city's legislative judgment in the matter should be upheld unless the statute unreasonably impinges upon those elements of communication which may be incidental to the regulated conduct." City of Portland v. Derrington, 253 Or. 289, 293, 451 P.2d 111, cert. denied 396 U.S. 901, 90 S.Ct. 212, 24 L.Ed.2d 177 (1969).

We have similarly stated:

"Conduct is not brought within [the] protections [of Article I, section 8] merely because it reflects particular attitudes. One may express his personality by walking the streets naked, but we may assume a municipal proscription of that act would not violate Art I, § 8." Brookes v. Tri-Met, 18 Or.App. 614, 625, 526 P.2d 590 (1974).

It...