State v. Moyle

• Decision Date: 27 August 1985
• Citation: 299 Or. 691,705 P.2d 740
• Parties: STATE of Oregon, Respondent on Review, v. Kenneth Allen MOYLE, Petitioner on Review. DA 240844-8208; CA A28286; SC S30468.
• Court: Oregon Supreme Court

Page 740

705 P.2d 740

299 Or. 691

STATE of Oregon, Respondent on Review, v. Kenneth Allen MOYLE, Petitioner on Review.

DA 240844-8208; CA A28286; SC S30468.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 4, 1984.

Decided Aug. 27, 1985.

Lawrence Matasar, Portland, argued the cause and filed a memorandum of law for petitioner on review. With him on the memorandum was Hoffman, Matasar & Glaeser, Portland. On petition for review were David L. Slader and Hoffman, Slader & Matasar. Marcia Levy, Metropolitan Public Defender, Portland, filed the brief and argued the cause in the Court of Appeals.

Robert W. Muir, Asst. Atty. Gen., Salem, argued the cause and filed a memorandum for respondent on review. With him on the memorandum were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem. On brief was Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Jan Peter Londahl, Asst. Atty. Gen., Salem.

Cory Streisinger and Jack L. Landau, Portland, filed a brief of amicus curiae for American Civil Liberties Union of Oregon, Inc.

CARSON, Justice.

At issue in this case is the constitutionality of the statute that prohibits harassment, defined as alarming another person by conveying a telephonic or written threat to inflict serious physical injury or commit a felony. ORS 166.065(1)(d) provides:

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

" * * *

"Subjects another to alarm by conveying a telephonic or written threat to inflict serious physical injury on that person or to commit a felony involving the person or property of that person or any member of that person's family, which threat reasonably would be expected to cause alarm;"

Defendant contends, inter alia, that the statute violates Article I, section 8, of the Oregon Constitution and that it is impermissibly vague. Article I, section 8, 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 the right."

Defendant was charged with making two telephonic threats to inflict serious physical injury, in that he threatened to kill one victim and her family and to bomb her home and car, and he threatened to kill another victim and to kidnap, rape and kill that victim's children.

Defendant filed a demurrer challenging the constitutionality of the statute on several state and federal constitutional grounds. The trial court held that the statute is not vague, but that it violates Article I, section 8, because it focuses on speech alone. The trial court's memorandum opinion stated:

"The present statute involves words alone which are communicated to the addressee over a distance, not face to face, and while such words may be threatening and may cause alarm they are not connected to any other element requiring conduct by the addressee nor is there any apparent present ability on the part of the speaker to carry out the threats. To uphold ORS 166.065(1)(d) would be to disregard the clear intent of the cases cited and others which have interpreted Article I, section 8 of the Oregon Constitution."

The state appealed and the Court of Appeals reversed, holding the statute is neither unconstitutional on its face nor as applied to defendant. That court was persuaded that ORS 166.065(1)(d) is a modern version of a historically established exception to the constitutional guarantee of free speech, and thus is not, on its face, a statute forbidden by Article I, section 8. The supposed historical exception was the English Waltham Black Act of 1723, which prohibited threats to commit certain felonies. The court next determined that the statute was not overbroad because, unlike the coercion statute overturned in State v. Robertson, 293 Or. 402, 649 P.2d 569 (1982), ORS 166.065(1)(d) is directed only at instances where the action threatened is wrongful, i.e., threats to inflict serious physical injury or to commit a felony. The court held that threats to commit felonies are not protected speech. The court also concluded that the statute was not vague because its "proscriptions are clear and understandable and do not delegate 'basic policy matters' to police, judges or juries." State v. Moyle, 66 Or.App. 274, 280, 673 P.2d 1366 (1983).

Defendant petitioned for review, contending that ORS 166.065(1)(d), on its face, is a violation of the free speech guarantees of Article I, section 8, of the Oregon Constitution and the federal First Amendment. ¹ He also contends that it is vague in violation of Article I, sections 20 ² and 21, ³ and ARTICLE III, SECTION 1, OF THE OREGON CONSTITUTION⁴ and the federal Fourteenth Amendment. ⁵ We allowed review to further refine the analysis under Article I, section 8, of statutes alleged to impermissibly restrain speech. We affirm the Court of Appeals, but for different reasons.

I. STATE CONSTITUTIONAL ANALYSIS

A. Restraint on Speech by Terms of Statute.

In State v. Robertson, supra, we said that Article I, section 8, of the Oregon Constitution:

" * * * forecloses 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. Examples are perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants. Only if a law passes that test is it open to a narrowing construction to avoid 'overbreadth' or to scrutiny of its application to particular facts." 293 Or. at 412, 649 P.2d 569. (Citation omitted.)

The first step in our analysis is to determine whether this statute, on its face, is a law whose very enactment was forbidden by Article I, section 8, i.e., whether it is a law "restricting the right to speak * * * freely on any subject whatever." Even when a law by its terms restricts the right to speak, we have held that it does not, on its face, violate our state constitutional guarantee if the crime was one well established at the time our constitutional guarantee was enacted and demonstrably outside the aims of the guarantee of freedom of expression, or if the statute as written proscribes some effect, rather than communication itself. State v. Robertson, supra, 293 Or. at 412, 416, 649 P.2d 569; State v. Garcias, 296 Or. 688, 689, 679 P.2d 1354 (1984).

1. Well-established Historical Exception.

The Court of Appeals held that this subsection of the harassment statute is sufficiently similar to the conduct proscribed by the English Waltham Black Act as to bring the contemporary statute within the historical exception analysis. We are persuaded, however, that the Court of Appeals' reliance on the Waltham Black Act as a historical exception to the free speech guarantee in Article I, section 8, is misplaced.

The Waltham Black Act, enacted by Parliament in 1723 and repealed in 1823, made it a capital offense to commit various enumerated crimes from murder to cutting down a sapling in the royal forests at Waltham, including sending unsigned or fictitiously signed letters threatening to commit a crime. The English Waltham Black Act does not appear to have been well-accepted or well-understood in England or in the American colonies. See, e.g., Radzinowicz, A History of English Common Law, 78, 548-49, 580-81 (1948); 4 Blackstone, Commentaries on the Laws of England, 1427 (Lewis ed 1902). In State v. Campbell, T.U.P.Charl. 166, 167-68 (1808), the Georgia court said: "this law [the Black Act] is not only penal to a feudal degree, but it is productive of tyranny." The Waltham Black Act is more properly categorized as the type of politically repressive legislation we rejected in Robertson as a candidate for a historical exception.

By 1859, seven American states had statutes in effect prohibiting non-extortionate written threats to commit various felonies, but Oregon did not. In 1850, the Territory of Oregon had a law prohibiting the sending or delivery of threatening letters, whether extortionate or not. General Laws of Oregon, § 57, p. 92 (1851). In 1853, however, this law was replaced by one prohibiting only extortionate written threats. Statutes of Oregon, § 34, p. 189 (1854). Thus, when the Oregon Constitution was adopted in 1859, Oregon had no statute prohibiting non-extortionate written threats. We conclude that neither the English Waltham Black Act nor Oregon's short-lived territorial legislation outlawing non-extortionate written threats was a well-established "conventional crime" involving speech which was intended to be excluded from Article I, section 8, protection.

2. Focus of the Law.

The next question is whether the gravamen of the offense is the act of making the threat (speech), or whether it is producing the effect, alarm. We recently explained the critical distinction between laws directed against speech and those directed at preventing a forbidden effect:

"[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." State v. Robertson, supra, 293 Or. at 416. (Emphasis supplied.)

In Robertson, we determined that the coercion statute then under review was directed against the pursuit of a forbidden effect, causing another person to engage in or refrain from conduct by threatening...