State v. Stoneman

Citation888 P.2d 39,132 Or.App. 137
PartiesSTATE of Oregon, Appellant, v. Michael R. STONEMAN, Respondent. 90-12-5153-C; CA A70085. . *
Decision Date28 December 1994
CourtCourt of Appeals of Oregon

[132 Or.App. 138-A] Janet A. Metcalf, Asst. Atty. Gen., argued the cause for appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Janet Lee Hoffman, Portland, argued the cause for respondent. With her on the brief were Margaret Raymond and Hoffman & Matasar.

RICHARDSON, Chief Judge.

Defendant was charged with paying to obtain a videotape and magazine that depicted sexually explicit conduct by a child under 18 years of age. ORS 163.680. 1 The trial court held that ORS 163.680 violated Article I, section 8, of the Oregon Constitution and sustained defendant's demurrer to the indictment on the basis of State v. Henry, 302 Or. 510, 732 P.2d 9 (1987). The state appeals, ORS 138.060(1), and argues that ORS 163.680 does not violate Article I, section 8, because: (1) the statute focuses on the harmful effects of speech, i.e., the abuse of children in the production of child pornography, and not the content of the expression itself; (2) if, however, the statute is content-based, it embodies a historical exception to Article I, section 8; and (3) laws enacted to protect children should be excepted from the sweep of Article I, section 8, because of their exceptional importance to the state. We affirm.

The first step in analyzing an Article I, section 8, challenge is to determine whether the prohibited activity involves "speech" or "expression" within the meaning of Article I, section 8. 2 Moser v. Frohnmayer, 315 Or. 372, 375, 845 P.2d 1284 (1993). 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 this right." The depictions of sexually explicit materials described in ORS 163.680(1) are a type of expression comprehended by Article I, section 8. Neither party argues otherwise.

The second step in the analysis is to determine whether the law is directed at the "substance of any 'opinion' or any 'subject' of communication," i.e., content, or whether the law is directed at forbidden effects. State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982); see also State v. Plowman, 314 Or. 157, 165, 838 P.2d 558 (1992), cert. den. 508 U.S. 974, 113 S.Ct. 2967, 125 L.Ed.2d 666 (1993). If a law proscribes expression on the basis of content, then, on its face, it violates Article I, section 8, 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.' " State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558 (quoting State v. Robertson, supra, 293 Or. at 412, 649 P.2d 569).

The party opposing the claim of constitutional protection has the burden of demonstrating that the restriction on expression falls within a historical exception. State v. Henry, supra, 302 Or. at 521, 732 P.2d 9.

A law directed at harmful effects may expressly prohibit expression or the law may not refer to expression at all. If a law prohibits the expression that causes harmful effects, the law

" 'must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such "overbreadth." ' " State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558 (quoting State v. Robertson, supra, 293 Or. at 418, 649 P.2d 569).

If the law focuses on the forbidden effects without referring to expression at all, the court can scrutinize the law for vagueness or an unconstitutional application. State v. Plowman, supra, 314 Or. at 164, 838 P.2d 558; see also City of Eugene v. Miller, 318 Or. 480, 490, 871 P.2d 454 (1994).

The state's primary argument is that ORS 163.680 is directed at some identified, harmful effect of child pornography rather than the content of the expression. The state argues that, because ORS 163.680 only proscribes giving value to view visual reproductions of children engaged in sexually explicit conduct, the statute's focus is on the harmful effects that flow from using children to produce pornographic materials.

Two cases help define the difference between laws that focus on harmful effects and laws that focus on the content of expression. In State v. Plowman, supra, the Supreme Court held that ORS 166.165(1)(a)(A), the statute creating and defining the crime of intimidation in the first degree, did not violate Article I, section 8. That statute requires proof of four elements:

"(1) Two or more persons must act together; (2) they must act because of their perception of the victim's race, color, religion, national origin, or sexual orientation; (3) they must cause physical injury to the victim; and (4) they must cause the physical injury intentionally, knowingly, or recklessly." 314 Or. at 165, 838 P.2d 558.

The defendant argued that the statute punished both opinion and communication. The court rejected that argument. First, it held:

"Rather than proscribing opinion, that law proscribes a forbidden effect: the effect of acting together to cause physical injury to a victim whom the assailants have targeted because of their perception that that victim belongs to a particular group. The assailants' opinions, if any, are not punishable as such. ORS 166.165(1)(a)(A) proscribes and punishes committing an act, not holding a belief." 314 Or. at 165, 838 P.2d 558.

Second, the court held that the statute did not impermissibly reach communication. It did not require proof of the communication of the assailants' perception, and, in any case, using speech to prove the crime was distinguishable from making expression or opinion a crime or an element of a crime.

In City of Portland v. Tidyman, 306 Or. 174, 759 P.2d 242 (1988), the court reached the opposite conclusion with regard to an ordinance regulating the location of "adult businesses." There, the city argued that the ordinance was constitutional because it was aimed at the adverse consequences adult businesses had on nearby residential and commercial areas. In rejecting the city's argument, the court first compared the challenged ordinance with the "coercion" statute at issue in State v. Robertson, supra. The court noted that, in Robertson, the coercion statute made the undesired effect an element of the statute. But, in Tidyman, the court determined that the Portland ordinance did not make harmful effects of adult businesses an element of the ordinance:

"The Portland ordinance, in contrast [to the coercion statute], undertakes to prevent what the city believes to be the effects of the trade in sexually explicit verbal or pictorial material by describing the content of this communicative material." 306 Or. at 184, 759 P.2d 242.

Despite the fact that the effects were not part of the ordinance, the city argued that the legislative findings that prefaced the ordinance provided the necessary proof that it focused on the harmful effects of adult businesses. The court, however, held that legislative history was insufficient to meet the constitutional requirement:

"In short, the problem with the city's asserted 'concern with the effect of speech,' is that the operative text of the ordinance does not specify adverse effects that constitute the 'nuisance' attributable to the sale of 'adult' materials and therefore does not apply only when these adverse effects are shown to occur or imminently threaten to occur. Rather, the ordinance makes a one-time legislative determination that retailing substantial quantities of sexually oriented pictures and words within the proscribed area will have adverse effects that retailing other pictures and words would not have, and that it therefore can be restricted as a 'nuisance' by a law describing the materials rather than the effects. By omitting the supposed adverse effects as an element in the regulatory standard, the ordinance appears to consider the 'nuisance' to be the characteristics of the 'adult' materials rather than secondary characteristics and anticipated effects of the store. Such lawmaking is what Article I, section 8, forbids." 306 Or. at 185-86, 759 P.2d 242. (Footnote omitted.)

With these two cases in mind, we turn to the statute at issue in this case. Former ORS 163.680(1) provided:

"It is unlawful for any person to pay or give anything of value to observe sexually explicit conduct by a child known by the person to be under 18 years of age, or to pay or give anything of value to obtain or view a photograph, motion picture, videotape or other visual reproduction of sexually explicit conduct by a child under 18 years of age."

The text of the statute makes it unlawful for a person to give value to view or obtain particular expressive material, because of its content--the depiction of sexually explicit conduct by a child. It is unlike the statute in Plowman, which proscribed the forbidden effects of opinion, "acting together to cause physical injury to a victim whom the assailants have targeted because of their perception that the victim belongs to a particular group." Nowhere in the text of ORS 163.680(1) has the legislature expressly identified any harmful effects to be prevented by the enforcement of this statute. The language is directed solely at prohibiting persons from paying to obtain or view the sexually explicit materials.

The state argues, and the dissents agree, that we can infer that ORS 163.680 is directed at the abuse and exploitation of children rather than at the sexually explicit material. We do not agree that we can make that inference.

In Moser v. Frohnmayer, supra, the court said...

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    ...section 8. 2 Under the established framework for analyzing an Article I, section 8, challenge that we followed in State v. Stoneman, 132 Or.App. 137, 139-40, 888 P.2d 39 (1994), rev. allowed 321 Or. 94, 893 P.2d 540 (1995), the first step is to determine whether the prohibited activity invo......
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