State v. Knobel

• Jurisdiction: Oregon
• Parties: , 16 Media L. Rep. 2478 STATE of Oregon, Respondent, v. Paul Kenneth KNOBEL, Appellant. 86-454-M; CA A43491.
• Citation: 97 Or.App. 559,777 P.2d 985
• Court: Oregon Court of Appeals
• Decision Date: 19 July 1989

Page 985

777 P.2d 985

97 Or.App. 559, 16 Media L. Rep. 2478

STATE of Oregon, Respondent, v.Paul Kenneth KNOBEL, Appellant.

86-454-M; CA A43491.

Court of Appeals of Oregon.

Argued and Submitted Feb. 22, 1988.

Decided July 19, 1989.

Marc Kardell, Grants Pass, argued the cause and filed the brief, for appellant.

Christine Chute, Asst. Atty. Gen., Salem, argued the cause, for respondent.With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol.Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

DEITS, Judge.

Defendant appeals his conviction for unlawfully obtaining contents of communications.ORS 165.540(1)(c).He argues that the statute is unconstitutional under both the Oregon and United States Constitutions and that the trial court erred in denying his motion for a judgment of acquittal and in failing to admit evidence of the victim's bias.We reverse and remand.

In July, 1986, defendant, a reporter for a local newspaper, Freedom to Express, interviewed Deputy Graves of the Josephine County Sheriff's office.Graves testified at trial that, approximately five minutes after their conversation began, he noticed a shiny metal object protruding about an eighth of an inch out of defendant's shirt pocket.He testified that he asked defendant if the object was a recorder and whether it was on.Defendant allegedly reached into his shirt pocket and partially removed the recorder and stated, "It better be on."Graves testified that he then asked defendant if he knew that it was illegal to tape record a conversation without permission and that defendant said, "Yes," but indicated that in some caseshe had to do that.Graves also testified that he then heard a click, which he believed was the sound of the recorder being turned off.The conversation continued for another 10 to 15 minutes.Graves never asked for the tape or the tape recorder and never saw a tape cassette in the recorder.Defendant was charged with unlawfully and knowingly obtaining and attempting to obtain a conversation by use of a tape recorder, ORS 165.540(1)(c), and was convicted.

ORS 165.540(1)(c) provides:

"[N]o person shall * * * [o]btain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if all participants in the conversation are not specifically informed that their conversation is being obtained."

Defendant argues that the statute is unconstitutionally overbroad and vague, in violation of Article I, section 8, and the First Amendment.

We examine defendant's state constitutional claims first.State v. Kennedy, 295 Or. 260, 262-65, 666 P.2d 1316[97 Or.App. 562](1983).He argues that the statute is overbroad on its face.Generally, a statute is "overbroad" when its terms purport to reach conduct protected by the constitution.State v. Robertson, 293 Or. 402, 410, 649 P.2d 569(1982).Defendant contends that the statute reaches conduct protected by Article I, section 8, namely, the right to speak and write freely on any subject whatsoever.SeeState v. Robertson, supra, 293 Or. at 410, 649 P.2d 569.

Defendant argues that ORS 165.540(1)(c) is overbroad with respect to Article I, section 8, in two specific ways.First, he contends that the statute prevents the free exercise of his Article I, section 8, rights, because it forbids transcribing notes taken during a conversation, unless consent is given.However, the statute does not prevent that.In order to violate the statute, a person must (1)"obtain or attempt to obtain the whole or any part of a conversation,"(2) by means of any device, contrivance, machine or apparatus when (3)"all participants in the conversation are not specifically informed that their conversation is being obtained."Moreover, ORS 165.540(6) provides:

"The prohibition in paragraph (c) of subsection (1) of this section shall not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of any of the following proceedings:

"(a) Public or semipublic meetings such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events;

"(b) Regularly scheduled classes or similar educational activities in public or private institutions; or

"(c) Private meetings or conferences if all others involved knew or reasonably should have known that the recording was being made."

We conclude that the statute does not prohibit taking or transcribing notes of a conversation.A reading of the entire statute and its legislative history reveals that its primary purpose is the prohibition of various forms of electronic surveillance.SeeState v. Lissy, 304 Or. 455, 747 P.2d 345(1987).Consistent with that purpose, we read ORS 165.540(1)(c) to prohibit only the use of a device, contrivance, machine or apparatus to intercept a conversation in any form.Because, by transcribing or taking notes of a conversation a person does not actually "intercept" the conversation by means of the device, contrivance, machine or apparatus, but rather first hears it by means of his auditory senses, transcription or note taking is not prohibited.Only when the device, contrivance, machine or apparatus itself intercepts the conversation does ORS 165.540(1)(c) apply.¹

The second part of defendant's overbreadth analysis is that the statute interferes with his right to gather news or his "freedom of the press."However, prohibiting surreptitious tape recording of a conversation does not restrict defendant's right to communicate with individuals or to gather news.The statute does not intrude on the press' ability to contact and communicate with anyone it chooses.Subsection (6) specifically allows recording of a conversation with an unconcealed recording device at public and at private meetings, when everyone involved knows, or reasonably should know, that a recording is being made.²We conclude that ORS 165.540(1)(c) is not unconstitutionally overbroad.

Defendant next argues that ORS 165.540(1)(c) is unconstitutionally vague.Vagueness involves a statute's lack of clarity and failure to communicate its coverage.State v. Robertson, supra, 293 Or. at 410, 649 P.2d 569;State v. Blocker, 291 Or. 255, 261, 630 P.2d 824(1981).A statute must define an offense in such terms that a person can determine the specific conduct that will fall within its reach to a reasonable degree of certainty.State v. Cornell/Pinnell, 304 Or. 27, 29, 741 P.2d 501(1987);State v. Pyritz, 90 Or.App. 601, 605, 752 P.2d 1310(1988).The language that defendant asserts is unconstitutionally vague is "any device, contrivance, machine, or apparatus, whether electrical, mechanical, manual, or otherwise."He argues that "apparatus" and "manual or otherwise" could be interpreted to include a pencil or pen and, consequently, the statute gives a judge or jury discretion to decide what constitutes criminal conduct.

We conclude that the statute is not unconstitutionally vague.In interpreting a statute which is arguably vague, it is our obligation to give it the required definiteness if that "can be done without departing too far from what the legislature sought to accomplish or what the statute itself can convey to a reader."State v. Robertson, supra, 293 Or. at 411, 649 P.2d 569.As discussed above, we interpret ORS 165.540 not to prohibit transcription, whether by pen, pencil or otherwise, because a person who transcribes does not actually intercept the conversation by means of the device.

Because defendant's state law challenge fails, we must consider his federal claims.He again argues that ORS 165.540(1)(c) is unconstitutionally overbroad, because it interferes with freedom of the press by restricting his ability to record a conversation, in violation of the First Amendment.The First Amendment does afford protection to the press' need to gather news.Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 576, 100 S.Ct. 2814, 2827, 65 L.Ed.2d 973(1980).However, as stated in Branzburg v. Hayes, 408 U.S. 665, 682-83, 92 S.Ct. 2646, 2657-58, 33 L.Ed.2d 626(1972):

"It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability."

We hold that ORS 165.540(1)(c) does not place an impermissible burden on the press.As previously discussed, it does not restrict defendant's right to communicate with individuals or to gather news.

We reject defendant's remaining First Amendment overbreadth arguments for reasons previously addressed in our discussion under the stateconstitution.SeeState v. Pyritz, supra, 90 Or.App. at 607, 752 P.2d 1310.Additionally, we hold that defendant's claims that the statute is unconstitutionally vague under federal standards also fail.Although the federal and Oregon standards for vagueness are phrased slightly differently, they coincide for present purposes.State v. Pyritz, supra, 90 Or.App. at 606, 752 P.2d 1310.We reject defendant's void-for-vagueness argument under the federal constitution for the same reasons that we rejected it under the Oregon constitution.

Defendant next argues that ORS 165.540(1)(c) violates his right to "privacy" under the Fourteenth Amendment by prohibiting the recording of one's own words.However, the statute does not forbid the recording of one's own words.³

Defendant also argues that the trial court erred in failing to grant his motion for judgment of acquittal.ORS 165.540(6)(c) provides a "defense" to a criminal charge as opposed to an "affirmative defense."Consequently, if the defense is raised, it must be disproved by the state beyond a reasonable doubt.Defendant argues that the state failed to disprove beyond a reasonable doubt that the recorder was not concealed.Graves...