Moser v. Frohnmayer

• Decision Date: 01 July 1992
• Docket Number: C-12416
• Citation: 112 Or.App. 226,829 P.2d 84
• Parties: Ronald MOSER, Appellant, v. David B. FROHNMAYER, in his official capacity as Attorney General of the State of Oregon, and the State of Oregon, Respondents. 89; CA A67796.
• Court: Oregon Court of Appeals

Page 84

829 P.2d 84

112 Or.App. 226

Ronald MOSER, Appellant, v. David B. FROHNMAYER, in his official capacity as Attorney General of the State of Oregon, and the State of Oregon, Respondents.

89C-12416; CA A67796.

Court of Appeals of Oregon.

Argued and Submitted Jan. 29, 1992.

Decided April 1, 1992.

Reconsideration Denied July 1, 1992.

Charles F. Hinkle, Portland, argued the cause for appellant. With him on the briefs were Jacklyn M. Bartruff, Laura J. Mazel and ACLU Foundation of Oregon, Portland.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

WARREN, Presiding Judge.

Plaintiff brought this declaratory judgment action challenging the constitutionality of ORS 759.290. He appeals from a summary judgment for defendants. We reverse.

Plaintiff is a chimney sweep who uses a "telemarketing computer" to advertise his service. The computer automatically and systematically dials telephone numbers in plaintiff's service area. When it connects with someone who answers "hello," it plays a recorded message concerning plaintiff's business. ORS 759.290 provides:

"(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.

"(b) Contacts between persons with an existing business relationship.

"(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.

"(b) 'Existing business relationship' means a preexisting and continuing course of dealing between parties involving the purchase or sale of realty, goods or services."

Plaintiff's use of the telemarketing computer falls squarely within the proscription of that statute and is not saved by either of the exceptions.

Plaintiff's principal challenge to ORS 759.290 is that it violates Article I, section 8, of the Oregon Constitution, ¹ because it is an impermissible content-based restriction on speech. Specifically, he contends that, because the law only prohibits the use of automatic telemarketing devices for "commercial" solicitations, it impermissibly discriminates against speech on a particular subject. To support his argument, plaintiff relies on Ackerley Communications, Inc. v. Mult. Co., 72 Or.App. 617, 623, 696 P.2d 1140 (1985), rev. dismissed 303 Or. 165, 734 P.2d 885 (1987), where we held:

"An ordinance that imposes a regulation on one kind of nonabusive speech and no regulation on others, because of the difference in their content, is inconsistent with Article I, section 8." (Footnote omitted.)

In that case, we struck down an ordinance that banned commercial, but not noncommercial, outdoor advertising, because the state has "no constitutionally acceptable interest in regulating commercial and noncommercial expression differently because of the content." 72 Or.App. at 625, 696 P.2d 1140.

The regulation challenged in Ackerley, placed a time, place and manner restriction on commercial speech that it did not place on noncommercial speech. So, too, does ORS 759.290. Accordingly, defendants concede that, if Ackerley is still the law, the statute must fall. However, defendants contend that Ackerley was implicitly overruled by subsequent decisions from the Oregon Supreme Court.

Defendants first rely on City of Portland v. Tidyman, 306 Or. 174, 759 P.2d 242 (1988), where the court considered whether a city ordinance that regulated the location of stores that sold sexually oriented, and in some cases obscene, materials violated Article I, section 8. The defendant merchants argued that the regulation was an impermissible content-based time, place and manner restriction. The court apparently agreed, because it rejected the city's argument that the ordinance was "concerned with the 'effect' of speech, not the speech itself." 306 Or. at 184, 759 P.2d 242.

In concluding that the ordinance was unconstitutional, the court clarified the process for analyzing laws challenged as violating Article I, section 8. The court first set out the general rule that section 8

"forbids the enactment of a law directed in terms against any subject of speech, writing, or printing that cannot be shown to fall within an old or modern version of a well-established historical exception that the constitutional guarantees demonstrably were not meant to displace." 306 Or. at 179, 759 P.2d 242. (Emphasis supplied.)

The court then emphasized that a time, place and manner restriction that focuses on the undesired effects of speech, if it is within the legislature's power to proscribe such effects, is not a law directed "in terms against any subject of speech." 306 Or. at 191, 759 P.2d 242; see also In re Fadeley, 310 Or. 548, 559, 802 P.2d 31 (1990). Because the ordinance focused on the content of the materials purveyed, not on the effects of the purveyance, it failed that test.

Tidyman is a straightforward application of the simple rule that, unless the subject matter of a law falls within an historical exception, a content based restriction on speech is impermissible in Oregon. Only content-neutral time, place and manner regulations that focus on prohibitable effects of speech are permitted. However, the opinion contains some possibly inconsistent language:

"This court has never held that an otherwise valid restriction must cover all or nothing, for instance that a city may not make evenhanded exceptions to an otherwise valid restriction against placing signs on utility poles, obstructing traffic for a civil rights commemoration, or using soundtrucks during a political campaign without having to make the same equally available to supporters of sports teams or to commercial advertisers." 306 Or. at 183, 759 P.2d 242.

Defendants cite that passage as support for the proposition that commercial speech is entitled to less protection under Article I, section 8, than other "higher" forms of speech, such as political speech. That is how the U.S. Supreme Court views the scope of free speech protections under the First Amendment to the United States Constitution. Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). We do not read Tidyman to effect such a diminution in the protection afforded by Article I, section 8.

The quoted portion of Tidyman appears in a discussion distinguishing regulations of general applicability that incidentally restrict the exercise of a constitutional right from those that are specifically designed to curb the deleterious effects of the exercise of such rights. The analysis is based on the presumption that there will be an "otherwise valid restriction," i.e., a restriction that does not offend the general rule against content-based regulations or any other constitutional guarantee. Those regulations, if applied in a nondiscriminatory manner, would not necessarily implicate Article I, section 8, because they would not be aimed at suppressing expressive activities. Nevertheless, the court explained that the state can grant exemptions from such laws to promote protected activities, provided that the exemptions are made in an even handed manner.

In that context, the quoted material merely explains that, if an exception from a valid regulation of general applicability is granted for a political demonstration, the state need not, as a matter of course, grant the same exception to a sports promoter. All that is required is equality of access to, or general applicability of, the exception. We read no more into the language than that. In sum, the analysis does not apply when a law is "flatly directed against one disfavored type of pictorial or verbal communication." 306 Or. at 184, 759 P.2d 242.

Tidyman specifically eschewed any analytical approach that focuses on the "value" of the speech at issue. We view the court's refusal to engage in ranking and balancing as a rejection of that approach. It said:

"By omitting the supposed adverse effects as an element in the regulatory standard, the ordinance appears to consider the 'nuisance' to be the characteristics of the 'adult' materials rather than secondary characteristics and anticipated effects of the store. Such lawmaking is what Article I, section 8, forbids." 306 Or. at 186, 759 P.2d 242.

Finding no support for defendants' position in Tidyman, we turn to City of Hillsboro v. Purcell, 306 Or. 547, 761 P.2d 510 (1988), where the court addressed whether a "Green River" anti-solicitation ordinance is constitutional under Article I, section 8. The precise ordinance at issue prohibited

"the practice of persons going in and upon private property or calling at residences *...