State v. Henry

• Court: Court of Appeals of Oregon
• Writing for the Court: YOUNG; JOSEPH; VAN HOOMISSEN; JOSEPH; BUTTLER, J., and GILLETTE
• Citation: 78 Or.App. 392,717 P.2d 189
• Parties: STATE of Oregon, Respondent, v. Earl A. HENRY, Appellant. 31300, 31301; CA A26439. . *
• Decision Date: 09 April 1986

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717 P.2d 189 78 Or.App. 392 STATE of Oregon, Respondent,
v.
Earl A. HENRY, Appellant. 31300, 31301; CA A26439. Court of Appeals of Oregon,
In Banc. ^* Argued and Submitted Jan. 20, 1984.
Resubmitted In Banc Dec. 4, 1985.
Decided April 9, 1986.

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[78 Or.App. 393] Timothy J. Sercombe, ACLU Foundation of Oregon, Eugene, argued the cause for appellant. With him on brief were Harrang, Swanson, Long & Watkinson, Eugene.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

[78 Or.App. 394] YOUNG, Judge.

Defendant appeals his conviction for dissemination of obscene material. ¹ ORS 167.087(1). He was indicted, inter alia, for dissemination of magazines entitled "Bronco Buster" and "3-Way Cum." He demurred to the indictment on the ground that the facts stated do not constitute an offense, because ORS 167.087 is unconstitutional. He stipulated that he had sold the magazines in question. The sole issue for the jury was whether the magazines were obscene within the definition of ORS 167.087(2). He was found guilty only in connection with the magazine "3-Way Cum." On appeal he argues that the court erred in overruling the demurrer. ²

Defendant argues that ORS 167.087 is unconstitutionally "vague" and "overbroad" and violates his right to freedom of expression under Article I, section 8, of the Oregon Constitution. "Vagueness" is a catchword for a number of possible constitutional violations. For example, in State v. Hodges, 254 Or. 21, 27, 457 P.2d 491 (1969), the court explained:

"A vague statute lends itself to an unconstitutional delegation of legislative power to the judge and jury, and, by permitting the jury to decide what the law will be, it offends the principle, if not the rule, against ex post facto laws." ³

A vague statute also violates Article I, section 20, of the Oregon Constitution, in that it invites "standardless and unequal application of penal laws." ⁴ State v. Graves, 299 Or. [78 Or.App. 395] 189, 197, 700 P.2d 244 (1985); State v. Robertson, 293 Or. 402, 408, 649 P.2d 569 (1982). Defendant's argument here is that the definition of obscenity, ORS 167.087(2), is so subjective that it fails to give potential defendants notice of its scope and allows the fact finder

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to decide, after the fact and according to its own sensibilities, whether particular material is obscene.

A claim of "overbreadth" asserts that the terms of the statute exceed constitutional boundaries by purporting to reach conduct protected by constitutional guarantees. State v. Robertson, supra, 293 Or. at 410, 649 P.2d 569. "Overbreadth" in this context refers to a violation of Article I, section 8, which provides in part:

"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 * * *."

A statute will be struck down as unconstitutionally overbroad if its terms could hypothetically prohibit protected speech even if, in the instance before the court, the defendant's conduct could be constitutionally prohibited by a more narrowly drawn statute. See State v. Robertson, supra; State v. Woodcock, 75 Or.App. 659, 706 P.2d 1012 (1985), rev.den. 300 Or. 506, 713 P.2d 1059 (1986).

Finally, defendant contends that ORS 167.087 is unconstitutional, because Article I, section 8, flatly bans the enactment of legislation directed to the substance of communication. This contention is distinct from an overbreadth challenge, because overbreadth analysis assumes that, although in the particular instance some regulation of the subject might be constitutional, the means reach too far. Defendant's argument here is that the subject of obscenity is wholly withdrawn from legislative purview. ⁵

[78 Or.App. 396] Vagueness and overbreadth are distinct constitutional challenges. However, the constitutional principles of freedom of expression and certainty of penal laws interact in that a statutory prohibition of "communication" is particularly vulnerable to constitutional attack for vagueness. State v. Blair, 287 Or. 519, 523, 601 P.2d 766 (1979). We conclude that the statutory definition of obscenity, ORS 167.087(2), is unconstitutionally vague under Article I, sections 20 and 21, of the Oregon Constitution. ⁶

ORS 167.087 provides in part:

"(1) A person commits the crime of disseminating obscene material if he 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;

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"(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."

The definition of "obscenity" in subsection (2) was [78 Or.App. 397] first enunciated in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973), ⁷ and was later applied to consensual adult pornography in Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973). The court in Miller, determined that the "specific prerequisites [of the Miller test] will provide fair notice to a dealer in such material that his public and commercial activities may bring prosecution." Justice Brennan, dissenting in Paris Adult Theatre I, explained:

"[A]fter 16 years of experimentation and debate I am reluctantly forced to the conclusion that none of the available formulas, including the one announced today, can reduce the vagueness to a tolerable level while at the same time striking an acceptable balance between the protections of the First and Fourteenth Amendments, on the one hand, and on the other the asserted state interest in regulating the dissemination of certain sexually oriented materials. Any effort to draw a constitutionally acceptable boundary on state power must resort to such indefinite concepts as 'prurient interest,' 'patent offensiveness,' 'serious literary value' and the like. The meaning of these concepts necessarily varies with the experience, outlook, and even idiosyncracies of the person defining them. Although we have assumed that obscenity does exist and that we 'know it when [we] see it,' we are manifestly unable to describe it in advance except by reference to concepts so elusive that they fail to distinguish between protected and unprotected speech." 413 U.S. at 84, 93 S.Ct. at 2647-48. (Citations omitted.)

Despite Justice Brennan's views, the Miller formula embodied in ORS 167.087 meets the requirement of the First and Fourteenth amendments to the United States Constitution. Our obligation, however, is to consider the statute first under the Oregon Constitution. State v. Robertson, supra. In discussing defendant's challenge to ORS 167.087 under the state constitution, we find it useful to review the Oregon obscenity cases.

[78 Or.App. 398] In State v. Jackson, 224 Or. 337, 356 P.2d 495 (1960), the court reversed the trial court's ruling that former ORS 167.150(1) ⁸ was unconstitutionally vague under the state constitution. ⁹ The majority first recognized "[t]he impossibility of finding any popularly accepted definition for the word

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'obscene' * * *." 224 Or. at 355, 356 P.2d 495. The court then adopted the Model Penal Code definition of obscenity for application on remand:

"A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest, i.e., a shameful or morbid interest in nudity, sex, or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters." 224 Or. at 360, 356 P.2d 495.

The court noted that the Model Penal Code definition also satisfied the standard adopted by the United States Supreme Court in Roth v. United States, 354 U.S. 476, 487 n. 20, 77 S.Ct. 1304, 1310 n. 20, 1 L.Ed.2d 1498 (1957). 224 Or. at 361, 356 P.2d 495. Judge O'Connell, dissenting (joined by Judges Warner and Sloan), agreed that former ORS 167.150, as interpreted by the majority, satisfied the First and Fourteenth Amendments to the United States Constitution. 224 Or. at 365, 356 P.2d 495, citing Roth v. United States, supra. However, unlike the majority, the dissenters concluded that the United States Supreme Court opinion in Roth was not a useful guide in determining the constitutionality of the statute under the state constitution, because the Roth opinion [78 Or.App. 399] "evades the very problem which must be met in dealing with the constitutionality of this type of legislation." 224 Or. at 366, 356 P.2d 495. The dissent stated:

"The court held, 'obscenity is not within the area of constitutionally protected speech or press.' If, as Justice Harlan points out in his concurring and dissenting opinion, we could isolate ' "obscenity" as a particular genus of "speech and press" which is as distinct, recognizable and classifiable as poison ivy is among other plants,' there would be no difficulty in separating obscene material from constitutionally protected expressions and in sustaining a statute which suppresses 'obscenity.' " 224 Or. at 366, 356 P.2d 495. (Citations omitted.)

The dissent argued:

"[G]ranting that the legislature is entitled to restrict freedom of expression when it decides that competing social values predominate, the restraint is valid only if there is some ascertainable criteria [sic] by which the courts can, in specific cases, determine whether the statute is applicable." 224 Or. at 377, 356 P.2d 495.

The dissent would have held...