State v. Ray
Citation | 302 Or. 595,733 P.2d 28 |
Parties | STATE of Oregon, Petitioner on review, v. Ronald Gilbert RAY, Respondent on review. CC B66-078; CA A34281; SC S32986. |
Decision Date | 10 February 1987 |
Court | Supreme Court of Oregon |
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.
Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.
Defendant was charged by complaint with the crime of harassment under ORS 166.065(1)(e). He filed a written demurrer to the complaint on the grounds that the statute was unconstitutionally vague and overbroad on its face. The district judge overruled the demurrer and defendant was convicted in a stipulated facts trial to the court. The Court of Appeals, 79 Or.App. 529, 719 P.2d 922, reversed the district court, citing State v. Henry, 78 Or.App. 392, 717 P.2d 189 (1986), which invalidated a prohibition against alleged "obscene" publications on vagueness grounds.
We agree with the Court of Appeals that this telephone harassment statute is unconstitutionally vague, but it also suffers from overbreadth. We are unable to excise the unconstitutional language in the statute's definitions and treatment of obscenity or to restrict the statute's overbreadth language. As presently written, ORS 166.065(1)(e) violates Article I, section 8, of the Oregon Constitution.
ORS 166.065(1)(e) provides:
"A person commits the crime of harassment if, with intent to harass, annoy or alarm another person, the actor:
* * *
* * *
(e) Subjects another to alarm or annoyance by telephonic use of obscenities or description of sexual excitement or sadomasochistic abuse or sexual conduct as defined in ORS 167.060 including intercourse masturbation, cunnilingus, fellatio, or anilingus, which use or description is patently offensive and otherwise obscene as defined in ORS 167.087(2)(b) and (c); * * * " 1
ORS 167.087(2)(b) and (c) provide that a matter is obscene if:
ORS 166.065(1)(e) is not beyond the power of the legislature to enact against a challenge under Article I, section 8, that the statute in terms is directed against speech, because the statute prohibits causing a specified effect, that is, harm to a victim rather than the substance of the communication as such. This court said in State v. Robertson, 293 Or. 402, 416-17, 649 P.2d 569 (1982), that:
* * * "
ORS 166.065(1)(e) is directed against the accomplishment of a forbidden result, i.e., the "alarm or annoyance" of "another person." The intent of the legislature in drafting this statute was to protect persons from actual injury, not to restrict the content of speech. Frank Gruber, Deputy Legislative Counsel, testified before the Senate Committee on Justice that this statute requires that the person subjected to the unwanted and unsolicited telephone call be subjected to shock, annoyance and alarm rather than just putting focus on communication. Minutes, Senate Committee on Justice, February 11, 1981, p. 19 (testimony of Frank Gruber, Deputy Legislative Counsel).
Oregon's earlier harassment statute forbidding some types of telephone calls was constitutionally inadequate because it did not require an "effect" on the listener and the prohibited conduct was not narrowly defined. ORS 166.065(1)(c) (1979); State v. Blair, 287 Or. 519, 601 P.2d 766 (1979). The 1981 legislature attempted to cure these defects by amending the statute, which now mandates that the listener must suffer the psychic injury of alarm or annoyance by the use of certain sexually explicit language. Or.Laws 1981, ch. 468, § 1. A law may protect against physical or financial harm and may equally protect against psychic or emotional harm; this statute proscribes conduct in the form of speech that produces emotional harm. As we said in State v. Moyle, 299 Or. 691, 699, 705 P.2d 740 (1985):
* * * "
In Moyle we went on to caution that a difficulty arises "when a statute defines a crime in terms of causing a kind of harm which necessarily results only from speech or writing, so that the statutory definition is only the other side of the coin of a prohibition of the speech or writing itself." Id.
Moyle involved ORS 166.065(1)(d). This case involves subsection (1)(e) of the same statute. By analogy, what we said in Moyle applies here. ORS 166.065(1)(e) does not run afoul of Article I, section 8, because the effect that it proscribes--causing psychic injury to persons--merely mirrors a prohibition of words themselves. The statute prohibits causing this effect specifically by words. Annoying verbal communication causing injury is a central element in the definition of the crime. If the statute potentially reaches substantial areas of communication that would be constitutionally privileged and that cannot be excluded by a narrowing interpretation left to a case-by-case defense against the application of the statute, it would be unconstitutional. Therefore, the statute must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such overbreadth.
The Robertson court then quoted State v. Blocker, 291 Or. 255, 261, 630 P.2d 824 (1981):
" " Robertson, 293 Or. at 410, 649 P.2d 569.
This court then pointed out in Robertson, 293 Or. at 412, 649 P.2d 569, that a narrowing construction may save a statute attacked as "overbroad" by legally excising the superfluous language of the statute. If the law passes the test with its narrowed construction, it does not violate any freedom to speak as provided by Oregon Constitution, Article I, section 8. However, this telephone harassment statute is hopelessly overbroad. We cannot write into the statute absent words that the proscribed conduct must necessarily be restricted to unwanted, unsolicited or nonconsensual telephone calls. The proscribed conduct is not even restricted to the person placing the call. In other words, someone who received a consensual, innocuous call could...
To continue reading
Request your trial-
State v. Meyer
...it forbids, rather than prohibiting the use of words, then it does not violate Article I, section 8 on its face. See State v. Ray, 302 Or. 595, 598, 733 P.2d 28 (1987). If a statute is directed only against causing the forbidden effects, a person accused of causing those effects by language......
-
State v. Kipf
...at a location where he enjoys a reasonable expectation of privacy and which were intended to harass the listener. State v. Ray, 302 Or. 595, 733 P.2d 28 (1987), held that a statute which prohibited subjecting another to alarm or annoyance by telephonic use of obscenities or the description ......
-
Fadeley, In re
...on the hearer; the statute was held to be directed toward speech itself, not toward the prevention of a specified harm); State v. Ray, 302 Or. 595, 733 P.2d 28 (1987) (this court, finding no such well-established and demonstrably preserved historical exception for "obscenity," invalidated a......
-
State v. Babson
...production those materials necessarily involved harm to children. Stoneman, 323 Or. at 546–48, 920 P.2d 535; see also State v. Ray, 302 Or. 595, 598, 733 P.2d 28 (1987) (citing legislative history to support conclusion that law prohibiting harassment “by telephonic use of obscenities” or ce......