State v. Henry

CourtSupreme Court of Oregon
Citation732 P.2d 9,302 Or. 510
Parties, 55 USLW 2444, 14 Media L. Rep. 1011 STATE of Oregon, Petitioner on Review, v. Earl A. HENRY, Respondent on Review. CC 31-300; 31-301; CA A26439; SC S32941.
Decision Date21 January 1987

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Virginia L. Linder, Asst. Sol. Gen., Salem, filed the petition for review.

Timothy J. Sercombe, of Harrang, Swanson, Long & Watkinson, Eugene, and Rex Armstrong, Portland, argued the cause for respondent on review. On the response to the petition for review with Mr. Armstrong was Edward E. Hill, of Larry O. Gildea, P.C., Eugene.


JONES, Justice.

Shortly after defendant Earl Henry opened an adult bookstore in Redmond, Oregon, a search warrant was issued by a Deschutes County district judge which resulted in the seizure of almost the entire inventory of the store, including 73 magazines, 142 paperback books, seven newspapers, nine films, one film projector, six decks of playing cards, an additional six periodical magazines, and various business records. Defendant was charged with disseminating obscene material and possession of obscene material with the intent to disseminate under ORS 167.087, which provides in pertinent part:

"(1) A person commits the crime of disseminating obscene material if the person knowingly makes, exhibits, sells, delivers or provides, or offers or agrees to make, exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, films, slides, drawings or other visual reproduction.

"(2) As used in subsection (1) of this section, matter is obscene if:

(a) It depicts or describes in a patently offensive manner sadomasochistic abuse or sexual conduct;

(b) The average person applying contemporary state standards would find the work, taken as a whole, appeals to the prurient interest in sex; and

(c) Taken as a whole, it lacks serious literary, artistic, political or scientific value."

A jury found defendant guilty of dissemination of obscene material and possession of obscene material with the intent to disseminate. Judgment was entered on the two convictions and in each case defendant was fined $1,000 and sentenced to imprisonment for 30 days with the jail sentences to run consecutively. Execution of the sentences was stayed pending appeal.

Defendant raised four issues in his appeal to the Court of Appeals: (1) The search and seizure violated state and federal constitutions; (2) the trial court erred in excluding comparable evidence; (3) the jury verdicts were inconsistent as a matter of law; and (4) ORS 167.087 is unconstitutional under Oregon Constitution, Article I, section 8.

The Court of Appeals, 78 Or.App. 392, 717 P.2d 189, reversed the convictions, holding that ORS 167.087 is unconstitutionally vague. Defendant had not made an argument based on vagueness apart from his claim under Article I, section 8, but we understand the Court of Appeals opinion to have seen the two issues as related. Although we proceed to decide the constitutional issue as presented, we should say a word about the vagueness issue.

The indeterminacy of the crime created by ORS 167.087 does not lie in the phrase "sexual conduct" that is further defined in ORS 167.060(10). 1 It lies in tying the criminality of a publication to "contemporary state standards." 2 Even in ordinary criminal law, we doubt that the legislature can make it a crime to conduct oneself in a manner that falls short of "contemporary state standards." In a law censoring speech, writing or publication, such an indeterminate test is intolerable. It means that anyone who publishes or distributes arguably "obscene" words or pictures does so at the peril of punishment for making a wrong guess about a future jury's estimate of "contemporary state standards" of prurience.

Though we do not disagree with the Court of Appeals, we hold that in any event ORS 167.087 contravenes Article I, section 8, of the Oregon Constitution and cannot be justified as an "historical exception" from Oregon's constitutional guarantee of freedom of expression.

Article I, section 8, of the Oregon Constitution sets forth in plain words that

"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."

What does the expression "every person shall be responsible for the abuse of this right" mean? This court obliquely addressed that language in State v. Jackson, 224 Or. 337, 347, 356 P.2d 495 (1960). There Justice George Rossman related this final clause of the section to the statement in Blackstone's Commentaries that the "liberty of the press" extended only to freedom from "previous restraints upon publications, and not in freedom from censure for criminal matter when published." 4 Blackstone, Commentaries, ch 11, p. 142, 151. But Article I, section 8, does not in terms refer to "freedom of * * * the press" (as the First Amendment does), 3 and Blackstone's narrow view of the extent of freedom of publication has long been rejected in this country as inadequate to the intended sweep of the American guarantees. Since State v. Jackson, this court has related the clause holding every person "responsible for the abuse of" the right of free expression to civil responsibility for harm done thereby. Wheeler v. Green, 286 Or. 99, 118, 593 P.2d 777 (1979). If the "abuse" clause leaves one subject to criminal prosecution for publications, it could hardly be confined just to "obscene" publications. The clause does not affect the decision of the case before us.

We have recently said in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), and In re Lasswell, 296 Or. 121, 673 P.2d 855 (1983), that the guarantee of freedom of expression of the Oregon Constitution forecloses the enactment of any prohibitory law backed by punitive sanctions that forbids speech or writing on any subject whatever, unless it can be shown that the prohibition falls within an original or modern version of an historically established exception to the protection afforded freedom of expression by Article I, section 8, that this guarantee demonstrably was not intended to displace.

ORS 167.087 as adopted by the legislature captured the obscenity test set forth by the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Defendant concedes that the statute passes muster under the federal Court's current view of the First Amendment and therefore focuses his attack directly on the viability of the statute under Article I, section 8, of the Oregon Constitution. We therefore address this issue as our own interpretation of the Oregon Constitution independent of any First Amendment analysis by the Supreme Court of the United States. See State v. Kennedy, 295 Or. 260, 265-68, 666 P.2d 1316 (1983). We discuss the federal constitution and federal cases only when of assistance in the analysis of the Oregon Constitution.

We note that Article I, section 8, separately precludes laws "restraining the free expression of opinion" as well as laws "restricting the right to speak, write, or print freely," whereas the First Amendment restrains "abridging the freedom of speech, or of the press." The text of Article I, section 8, is broader and covers any expression of opinion, including verbal and nonverbal expressions contained in films, pictures, paintings, sculpture and the like. The Oregon constitutional provision also covers "any subject whatever" and does not contain any express exception for obscene communications.

The question remains whether "obscene" expressions fall within such historical exceptions as "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.

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, i.e., by the late eighteenth and mid-nineteenth centuries. Laurence Tribe, American Constitutional Law 657 (1978), reports:

"In the sixteenth century, ecclesiastical and royal censorship of expression in England was more concerned with political and religious themes than with the sexually obscene. The earliest licensing systems were primarily addressed to the vices of sedition and heresy. During the seventeenth century, the influence of puritanism resulted in a sober intolerance of bawdy literature; the portrayal of sexual pleasure was strictly condemned. Shortly after the restoration, in the year 1663, Sir Charles Sedley, an intimate of the King and a notorious profligate, after a drinking spree in a tavern by Covent Garden, mounted the balcony of the tavern as a crowd gathered below. There he proceeded to disrobe, haranguing his audience with antireligious epithets as he showered them with bottles of urine. The crowd, now turned mob, stormedthe tavern. Sedley's subsequent conviction [Sir Charles Sydlyes Case, 1 Keble 620 (K.B.1663). See 8 The Cambridge History of English Literature 158 (1912) ] is widely regarded as the first reported English case on obscenity--making Sedley the first adjudicated 'streaker.' * * * Sedley's * * * case was subsequently relied upon in Dominus Rex v. Curl [2 Strange 788 (K.B.1727) ] for the proposition that obscenity alone--that is, Sedley's nakedness--was a breach of the peace. In a third early case, Rex v. Wilkes [4 Burr. 2527 (K.B.1770) ], the...

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