State v. Harrington, B63-826

• Decision Date: 08 August 1984
• Docket Number: No. B63-826,B63-826
• Citation: 67 Or.App. 608,680 P.2d 666
• Parties: STATE of Oregon, Appellant, v. Wayne Anthony HARRINGTON, Respondent. ; CA A28262.
• Court: Oregon Court of Appeals

Page 666

680 P.2d 666

67 Or.App. 608

STATE of Oregon, Appellant, v. Wayne Anthony HARRINGTON, Respondent.

No. B63-826; CA A28262.

Court of Appeals of Oregon.

Argued and Submitted Nov. 21, 1983.

Decided April 11, 1984.

Review Denied Aug. 8, 1984.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for appellant. With her on the briefs were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

William J. Stater, Eugene, argued the cause for respondent. With him on the brief was Stater & Nelson, Eugene.

David M. Raim, Charles C. Platt and LeBoeuf, Lamb, Leiby & MacRae, New York City, filed a brief amicus curiae for the Anti-Defamation League of B'nai B'rith.

Rex Armstrong, Portland, filed a brief amicus curiae for American Civil Liberties Union Foundation of Oregon, Inc.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

The state appeals a trial court order sustaining defendant's demurrer to a complaint charging racial intimidation. Former ORS 166.155. ¹ The intimidation statute enhances the penalty for criminal mischief, ORS 164.345, or harassment, ORS 166.065, when such crimes are motivated by the race, color, religion or national origin of the victim. The complaint in this case alleged "harassment." Defendant challenged both ORS 166.065(1)(b)--the harassment statute--and ORS 166.155--the racial intimidation statute--on numerous state and federal constitutional grounds. ² In ruling in defendant's favor, the trial court did not specify its reasons. We affirm, finding that ORS 166.065(1)(b) violates Article I, section 8, of the Oregon Constitution. We therefore need not assess the further claim concerning the racial intimidation statute itself.

The complaint charges:

"The defendant * * * by reason of race and color and with intent to HARASS, annoy and alarm John Thomas Ritchey, * * * did unlawfully publicly insult John Thomas Ritchey by abusive words in a manner likely to provoke a violent and disorderly response, by repeatedly calling John Thomas Ritchey a 'fucking nigger.' "

ORS 166.065(1)(b) provides, in pertinent part:

"A person commits the crime of HARASSment if, with intent to HARASS, annoy or alarm another person, the actor:

" * * *

"(b) Publicly insults another by abusive or obscene words or gestures in a manner likely to provoke a violent or disorderly response;"

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; but every person shall be responsible for the abuse of this right."

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

" * * * Article I, section 8, * * * foreclosures 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 * * *." 293 Or. at 412, 649 P.2d 569.

Under Robertson, examining a statute in light of Article I, section 8, requires answering two questions. The first is whether ORS 166.065(1)(b) is "directed to the substance of any opinion or any subject of communication." 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.

The state argues that ORS 166.065(1)(b) is directed against an "effect," namely, prevention of violence. Both the language of the statute itself and the legislative commentary indicate otherwise. Turning first to its own terms, the statute punishes insulting language regardless of the actual effect on the listener. It does not solely proscribe words intended to provoke violence; rather, it proscribes language spoken with the intent to "HARASS, annoy or alarm." ³ Neither is it limited to words likely to provoke violence; it also proscribes language likely to provoke a "disorderly" response. That word, "disorderly," is defined in a separate section of ORS ch. 166. Under ORS 166.025(1)(b) and (c), disorderly conduct includes making unreasonable noise or disturbing a lawful assembly of persons without lawful authority, ⁴ both of which may be accomplished by words rather than by physical violence.

Finally, if any doubt remains as to the statute's scope, legislative history removes it. The commentary to the statute indicates that the statute was intended to protect the listener from exposure to abusive or obscene language rather than to protect anyone from physical violence. The commentary to ORS 166.065 explains the similarity between ORS 166.065(1)(b) and former 166.025(1)(c) (repealed by Or.Laws 1983, ch. 546, § 5) a portion of the disorderly conduct statute that prohibit intentionally causing public inconvenience, annoyance or alarm by use of "abusive or obscene language, or * * * an obscene gesture, in a public place":

"[Paragraph (b) of ORS 166.065(1) ] is similar to paragraph (c) of the disorderly conduct statute designed to protect the general public from exposure to abusive or obscene language and gestures. Paragraph (b) makes the same type of conduct punishable where directed at a specific individual." Commentary, Oregon Criminal Code of 1971, p. 219 (1975).

Former ORS 166.025(1)(c) was found unconstitutional in State v. Spencer, 289 Or. 225, 611 P.2d 1147 (1980), as an impermissible infringement upon the right of free expression safeguarded in Article I, section 8. We hold that ORS 166.065(1)(b) is directed at communication.

The second question under Robertson is whether the statute falls within some historical exception to Article I, section 8. The state argues that the language "likely to provoke a violent or disorderly response" limits the type of language that may be punished to so-called "fighting words" and that punishment of fighting words is an historical exception to Article I, section 8. The basis of this argument is Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1941). In that First Amendment case, the Supreme Court stated:

"[T]he right of free speech is not absolute at all times and under all circumstances. There are certain well-defined narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, profane, the libelous, and the insulting, or 'fighting words'--those which by their very utterances inflict injury or intend to incite an immediate breach of the peace." 315 U.S. at 571-72, 62 S.Ct. at 769. (Footnotes omitted).

On the other hand, more recent Supreme Court opinions have struck down statutes proscribing offensive language as overbroad under the First Amendment. See Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1003, 31 L.Ed.2d 408 (1972); see also Lewis v. New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974). ⁵ Thus, Chaplinsky is not necessarily in point.

Even if we were to determine that ORS 166.065(1)(b) codifies the Chaplinsky fighting words exception to the First Amendment, however, that would not end our inquiry. Chaplinsky stands for the proposition that the United States Supreme Court may determine that some forms of communication are unprotected because "any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, supra, 315 U.S. at 572, 62 S.Ct. at 769. In other words, the court used a balancing test test to determine that some forms of expression are unworthy of constitutional protection.

Article I, section 8, by contrast, forbids legislation "restricting the right to speak freely on any subject whatever." (Emphasis supplied). Article I, section 8, precludes the state legislature or the courts from balancing away the right to free expression. The legislature may only proscribe expression when the scope of the restraint is wholly within an historical exception to Article I, section 8. ⁶ Examples of such historical exceptions are "perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants." State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569. As "examples" we do not consider this list to be--or to have been intended to be--exclusive. We turn to such historical tools as are available in order to determine whether fighting words should be added to the list.

Oregon territorial legislation enacted before Article I, section 8, did not include any provisions forbidding "abusive or obscene" spoken language. There was a provision which proscribed challenging another to fight a duel and advising or encouraging another to accept a challenge or make a challenge. General Laws of Oregon, Crimes & Misdemeanors § 24, p 85-86 (1851). The distinction between challenging another to fight a duel with deadly weapons and publicly insulting another by abusive or obscene words likely to provoke a violent or disorderly response is the difference in the intent of the actor. In challenging to a duel, the actor intends to engage in criminal conduct, i.e., dueling. In other words, the statute proscribes solicitation of a crime....