State v. Ray

• Court: Supreme Court of Oregon
• Writing for the Court: Before PETERSON; JONES; LINDE
• 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

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733 P.2d 28 302 Or. 595 STATE of Oregon, Petitioner on review,
v.
Ronald Gilbert RAY, Respondent on review. CC B66-078; CA A34281; SC S32986. Supreme Court of Oregon. Argued and Submitted Oct. 8, 1986.
Decided Feb. 10, 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.

[302 Or. 596] 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.

[302 Or. 597] JONES, Justice.

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,

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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

[302 Or. 598] ORS 167.087(2)(b) and (c) provide that a matter is obscene if:

"(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."

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:

"article 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. * * * "

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).

[302 Or. 599] 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):

"Some kinds of prohibitions may violate Article I, section 8, even if written in terms of 'harms' rather than speech or

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writing. The constitutional prohibition against laws restraining speech or writing cannot be evaded simply by phrasing statutes so as to prohibit 'causing another person to see' or 'to hear' whatever the lawmakers wish to suppress. In principle, legislative power to select the objectives of legislation is plenary, except as it is limited by the state and federal...