State v. Ciancanelli

• Decision Date: 29 September 2005
• Docket Number: CC 98CR2685FE; CA A108122; SC S49707).
• Citation: 121 P.3d 613,339 Or. 282
• Parties: STATE of Oregon, Respondent on Review, v. Charles Robert CIANCANELLI, Petitioner on Review.
• Court: Oregon Supreme Court

Page 613

121 P.3d 613

339 Or. 282

STATE of Oregon, Respondent on Review, v. Charles Robert CIANCANELLI, Petitioner on Review.

CC 98CR2685FE; CA A108122; SC S49707).

Supreme Court of Oregon.

Argued and Submitted November 3, 2003.

Decided September 29, 2005.

On review from the Court of Appeals.^*

Robin A. Jones, Senior Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Oregon Public Defense Services.

Charles Robert Ciancanelli, petitioner on review, filed the briefs for himself.

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Charles F. Hinkle, Portland, filed the brief for amicus curiae ACLU Foundation of Oregon, Inc., and for amici curiae Oregonian Publishing Company and other media entities. With him on the brief for Oregonian Publishing Company and other media entities was Stoel Rives LLP.

Chin See Ming, of Perkins Coie LLP, Portland, filed the brief for amici curiae ACLU Foundation of Oregon, Inc. and White Bird. With him on the brief were Julia E. Markley and Les Swanson.

Bradley J. Woodworth and Lake James H. Perriguey, of Bradley J. Woodworth & Associates, PC, Portland, filed the briefs for amicus curiae Portland Area Privacy Alliance.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.^**

GILLETTE, J.

In this criminal proceeding, we are asked to decide whether ORS 167.062, which makes it a crime to, among other things, "direct manage, finance or present" a "live public show" in which the participants engage in "sexual conduct" violates the free expression rights guaranteed by Article I, section 8, of the Oregon Constitution.¹ Drawing on the "Robertson framework,"² which this court uses to address free expression issues that arise under Article I, section 8, defendant argues that the statute is unconstitutional because it is directed, by its terms, at a form of expression and does not fall within a well-established "historical exception" to the constitutional prohibition on enactment of such laws.

The state disagrees that ORS 167.062 is directed at expression and, for that reason, argues that the statute is constitutionally sound under State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982). However, the state also contends, on a more fundamental level, that the analytical underpinnings of the Robertson framework are unsound. It follows, the state asserts, that this court should re-examine that framework and disavow it in favor of a form of "balancing" test that (in the view of the state) more correctly captures the true meaning and scope of Article I, section 8.

For reasons that we set out post, we disagree with the state's assertion that the statute is not, by its terms, aimed at expression. We therefore conclude that this case is one to which the Robertson framework applies. Respecting that methodology, we accept the state's request that we consider its criticisms of Robertson. Having done so, we conclude that the state has failed to show that Robertson is incorrect. We therefore adhere to it. Furthermore, we reject categorically the state's proffered alternative, balancing test.

I. FACTS AND PROCEDURAL BACKGROUND

The following facts are supported by the record. Defendant operated an "adult-oriented" business, Angels, in Roseburg. Angels offered a menu of "shows," to be performed for individual customers or small groups upon payment of a fee. The shows were presented in a small room on the premises.

Undercover policemen visited Angels on two occasions. During the first visit, the officers requested and paid for a "toy show." A female employee of Angels led them into a room and proceeded to "perform" for them by, among other things, removing her clothing and inserting a dildo and her finger into her vagina. During the second visit, the officers paid for a "two girl show." During that show, two women performed a striptease, rubbed their breasts against the officers chests, and engaged in oral sex with one another.

After the second visit, the officers arrested defendant and the performers. Defendant later was charged by indictment with two counts of promoting a live sex show, ORS 167.062, one count of promoting prostitution, ORS 167.012, two counts of compelling prostitution, ORS 167.017, and two counts of using a child in a display of sexual conduct, ORS 163.670 (the latter two counts are based on the fact that one of defendant's performers was under 18 years of age). Before trial, defendant demurred to the indictment, arguing, among other things, that ORS 167.062, on its face, and ORS 167.012, as applied to the conduct at issue, violate the free expression guarantee of Article I, section 8, of the Oregon Constitution and the free speech guarantee in the First Amendment to the United States Constitution. The trial court overruled the demurrers, and the case proceeded to trial. Defendant was convicted of all charges.

On his direct appeal to the Court of Appeals, defendant assigned error, inter alia, to the trial court's ruling on his demurrer, again arguing that ORS 167.062 is facially unconstitutional and that ORS 167.012 is unconstitutional as applied to his case. A majority of the Court of Appeals rejected both arguments. The Court of Appeals majority began by accepting, for the sake of argument, the proposition that a live sex show has content that qualifies as "expression" under Article I, section 8. State v. Ciancanelli, 181 Or.App. 1, 7, 45 P.3d 451 (2002). Utilizing the analytical framework for challenges under Article I, section 8, that this court set out in Robertson, the Court of Appeals majority nonetheless concluded that ORS 167.062 falls within a "well-established" historical exception to the general prohibition in Article I, section 8, against laws that, by their terms, restrain expression. Id. at 19, 45 P.3d 451. The majority found support for that conclusion in a line of statutes and cases dating back to the seventeenth century which, taken as a whole, suggest that public nudity and sexual conduct long have been a subject of governmental regulation and punishment in the United States. The majority also relied on the fact that, in the early days of Oregon, it was a crime to expose one's private parts or otherwise to exhibit oneself in a way that is "offensive to decency, or is adapted to excite vicious or lewd thoughts or acts." Id. at 12, 45 P.3d 451 (quoting General Laws of Oregon, ch. 48, § 632, p. 559 (Deady 1845-1864)).

In a similar vein, the Court of Appeals majority held that the conduct that is the subject of ORS 167.012 (promoting prostitution) also falls wholly within a longstanding historical exception to Article I, section 8. And, because it does fall within such an exception, the majority concluded that, even if defendant were correct in suggesting that some of the conduct prohibited by ORS 167.012 is or can be "expression," that fact would not raise a constitutional issue. Ciancanelli, 181 Or.App. at 28-31, 45 P.3d 451.

II. METHODOLOGY

On review, defendant argues that the Court of Appeals majority's analysis is contrary to this court's holding in State v. Henry, 302 Or. 510, 520-23, 732 P.2d 9 (1987), that such early restrictions on sexually explicit or obscene expressions between adults as may have existed were not "well established" at the time that early freedoms of expression were adopted or at the time of the adoption of Article I, section 8. Defendant also argues that the Court of Appeals relied almost entirely on cases and statutes pertaining to "lewd" conduct before a nonconsenting public, but pointed to no real evidence of the historical treatment of private, sexually explicit performances staged for consenting adults.³

For its part, the state does not dwell on whether criminal prosecution for promoting a live sex show or prostitution falls within a "historical exception" for purposes of the Robertson framework. Instead, it focuses its argument on two points: (1) that the statutes at issue are directed at conduct, not expression; and (2) that, in any event, the entire Robertson framework should be abandoned because it is "inconsistent with what language and history teach about the intentions of the [Oregon] constitution's authors." Respecting the latter point, the state notes that, in recent years, this court has utilized a consistent methodology to construe provisions of the Oregon Constitution and has stated repeatedly that its ultimate purpose is to ascertain the intent of the provision's framers and of the people who voted to adopt it. See, e.g., Stranahan v. Fred Meyer, Inc., 331 Or. 38, 54, 11 P.3d 228 (2000) (describing methodology and purpose). The state further asserts that this court did not construe Article I, section 8, in Robertson by means of that methodology. The state suggests that, under those circumstances, Robertson should be set aside and Article I, section 8, should be interpreted by means of this court's present methodological paradigm.

In Stranahan, this court summarized the circumstances under which, in spite of the salutary doctrine of stare decisis, it will reconsider rules arising out of earlier decisions respecting the Oregon Constitution:

"[W]e remain willing to reconsider a previous ruling under the Oregon Constitution whenever a party presents to us a principled argument suggesting that, in an earlier decision, this court wrongly considered or wrongly decided the issue in question. We will give particular attention to arguments that either present new information as to the meaning of the constitutional provision at issue or that demonstrate some failure on the part of this court at the time of the earlier decisions to follow its usual paradigm for considering and...