Moser v. Frohnmayer

• Decision Date: 19 February 1993
• Docket Number: C-12416
• Citation: 315 Or. 372,845 P.2d 1284
• Parties: , 61 USLW 2528 Ronald MOSER, Respondent on Review, v. David B. FROHNMAYER, in his official capacity as Attorney General of the State of Oregon, and the State of Oregon, Petitioners on Review. CC 89; CA A67796; SC S39367.
• Court: Oregon Supreme Court

Page 1284

845 P.2d 1284

315 Or. 372, 61 USLW 2528

Ronald MOSER, Respondent on Review, v. David B. FROHNMAYER, in his official capacity as Attorney General of the State of Oregon, and the State of Oregon, Petitioners on Review.

CC 89C-12416; CA A67796; SC S39367.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 2, 1992.

Decided Feb. 19, 1993.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for petitioners on review. With him on the petition were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Charles F. Hinkle, Portland, argued the cause and filed the response for respondent on review.

PETERSON, Justice.

Article I, section 8, of the Oregon Constitution, provides that "[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever." The issue in this case is whether a law that prohibits the use of any "automatic dialing and announcing device to solicit the purchase of any realty, goods or services," ORS 759.290, violates Article I, section 8.

Plaintiff operates a chimney sweep business. He uses an automatic dialing and announcing device to solicit customers. He brought this action seeking a declaratory judgment that ORS 759.290 violates Article I, sections 8 and 20, of the Oregon Constitution, and the First and Fourteenth Amendments to the Constitution of the United States. ORS 759.290 provides in part:

"(1) No person shall use an automatic dialing and announcing device to solicit the purchase of any realty, goods or services.

"(2) Subsection (1) of this section does not apply to:

"(a) The solicitation for funds by charitable or political organizations or institutions.

" * * * * * *

"(3) As used in this section:

"(a) 'Automatic dialing and announcing device' means equipment that dials programmed telephone numbers and plays a recorded message when the call is answered."

The trial court granted summary judgment to defendants, and the Court of Appeals reversed, holding that ORS 759.290 violates Article I, section 8, of the Oregon Constitution. Moser v. Frohnmayer, 112 Or.App. 226, 829 P.2d 84 (1992). We affirm the decision of the Court of Appeals.

We address state law claims first. State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983). Article I, section 8, forbids lawmakers from passing any law that "restrain[s] the free expression of opinion, or restrict[s] the right to speak, write, or print freely on any subject whatever."

"[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." State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982). ¹

We first consider whether the use of an automatic telephone dialing and announcing device that uses a recorded message is speech, within the meaning of Article I, section 8. The spoken word is our most popular and, to date, most significant form of communication. Newer forms of transmitting communications have arisen in the last 200 years. The telegraph (Cook, Wheatstone, Morse, 1837) enables people to communicate messages through an electrically charged wire by using a coded sound system. The telephone (Bell, 1876) carries the sound of one's voice through electrically charged wire. Radio (Marconi, 1895) carries signals through the air that may be received and transformed, by electronic means, into the sound of voices.

Audio recordings enable people to record their voices in another medium that may be replayed virtually anywhere. Most recently, people communicate with computers by voice, and computers replicate the human voice by technologically simulating its sound.

The Oregon Constitution protects communication by one person to another in words, whether that communication is by face-to-face speech, by person-to-person voice communication through wires or through the air, or by the computerized simulation of spoken words. The fact that one's means of expression is by a recording or simulation of one's voice does not alter its essential nature--speech.

ORS 759.290 properly may be viewed in several ways. Under the statute, automatic dialing and announcing devices legally may be used to transmit any message, except messages that are a commercial attempt to sell realty, goods, or services. In this respect, it restricts expression because it is directed at a specific subject of communication, excluding some speech based on the content of the message. ORS 759.290 also contains a manner restriction (a limitation on telecommunication by automatic dialing and announcing devices but not by other means) and a classification restriction among users of telemarketing equipment (distinguishing between charitable and political entities, on the one hand, and all others).

Even though ORS 759.290 limits the substance of a subject of communication, it might nonetheless survive an Article I, section 8, challenge, if it 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." State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569; In re Lasswell, 296 Or. 121, 124, 673 P.2d 855 (1983). In State v. Henry, 302 Or. 510, 515-25, 732 P.2d 9 (1987), this court discussed what evidence is necessary to establish an historical exception. The court held that the "party opposing a claim of constitutional privilege" has the burden of demonstrating that a restriction on speech falls within an historical exception. Id. at 521, 732 P.2d 9. This is a heavy burden, "because the constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal restraints on one or another form of speech or writing." Ibid.

Henry states: "The first part of the Robertson test for determining whether a restriction on expression comes within an historical exception focuses on whether the restriction was well established when the early American guarantees of freedom of expression were adopted * * *." Id. at 515, 732 P.2d 9. The second part of the Robertson test determines whether Article I, section 8, was intended to eliminate that restriction. Id. at 521, 732 P.2d 9.

The Henry court found that restrictions on "obscene expressions were not well established at the time the early freedoms of expression were adopted." Id. at 520, 732 P.2d 9. In addition, although pre-constitutional statutes made the possession of obscene materials that tended to corrupt the morals of youths a crime, ² the court found this insufficient to establish that "obscenity" fell within an historical exception to Article I, section 8. In reaching that conclusion, the court stated:

"The territorial statute * * * certainly does not constitute any well-established historical exception to freedom of expression and that statute is in no way the equivalent of statutes punishing libel, perjury, forgery and the like." Id. at 522, 732 P.2d 9.

Defendants point out that commercial advertisements or solicitations historically were not protected by the First Amendment; from this they argue that there must have been an historical exception permitting states to limit commercial speech. They cite Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262 (1942) (holding that a constitutional right to distribute commercial handbills cannot be acquired by printing protected speech on the reverse side); Packer Corp. v. Utah, 285 U.S. 105, 52 S.Ct. 273, 76 L.Ed. 643 (1932) (holding that regulation of commercial advertising did not violate federal equal protection); and Williams v. Arkansas, 217 U.S. 79, 30 S.Ct. 493, 54 L.Ed. 673 (1910) (same). ³ According to defendants, the significance of those cases is that, until Valentine v. Chrestensen, no one even argued that advertising or commercial solicitations were protected speech. This demonstrates, defendants argue, that it was well established that such speech was not subject to First Amendment protection.

Defendants contend that Oregon jurists shared the same understanding. State v. Hollinshead, 77 Or. 473, 151 P. 710 (1915), upheld a statute that made it a misdemeanor for any person to advertise a cure for sexual dysfunction or disease. In Semler v. Oregon Dental Examiners, 148 Or. 50, 34 [315 Or. 378] P.2d 311 (1934), aff'd, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935), this court upheld a law prohibiting certain advertising by dentists. Defendants argue that, even though Article I, section 8, was not involved in Hollinshead and Semler, the decisions are evidence that, historically, advertising and commercial solicitation were excepted from Article I, section 8, protection.

In effect, defendants are contending that, because no one had, before those decisions or incident to those decisions, asserted that commercial solicitations are subject to Article I, section 8, protection, such solicitations are not subject to Article I, section 8, protection. The cases cited by defendants lend little support to the notion that restrictions on advertising or commercial solicitations were well established when the "first American guarantees of freedoms of expression were adopted." State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569. As in State v. Henry, supra, defendants have not established an historical exception. ORS 759.290 does not fit within an historical exception.

Defendants also assert that the legislature can regulate solicitations and that ORS 759.290 is a permissible regulatory statute. They argue that, if a law is directed at secondary or invasive effects of communicative...