State v. Stoneman

• Decision Date: 18 July 1996
• Citation: 323 Or. 536,920 P.2d 535
• Parties: STATE of Oregon, Petitioner on Review, v. Michael R. STONEMAN, Respondent on Review. CC 90-12-5153-C; CA A70085; SC S42085.
• Court: Oregon Supreme Court

Page 535

920 P.2d 535

323 Or. 536

STATE of Oregon, Petitioner on Review, v. Michael R. STONEMAN, Respondent on Review.

CC 90-12-5153-C; CA A70085; SC S42085.

Supreme Court of Oregon.

Argued and Submitted Nov. 9, 1995.

Decided July 18, 1996.

Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Lawrence Matasar, of Hoffman & Matasar, Portland, argued the cause for respondent on review. With him on the brief was Janet L. Hoffman.

Leslie M. Roberts, Portland, and David Schuman, Eugene, filed a brief for amicus curiae American Civil Liberties Union of Oregon.

Kelly Clark, Wilsonville, filed a brief for amicus curiae The Oregon Women's Leadership Task Force.

Janet M. LaRue, Santa Ana, California, in association with Jay R. Jackson, Salem, filed a brief for amicus curiae The National Law Center for Children and Families.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, GRABER, and DURHAM, JJ. ^*

GILLETTE, Justice.

In 1985, the legislature enacted a criminal statute directed at the producers, purveyors, and purchasers of visual reproductions of children engaged in sexually explicit conduct. In 1990, defendant was charged with violating one section of that statute, codified at ORS 163.680 (1987), by purchasing a magazine and a video that allegedly contained portrayals of the proscribed type. At that time, ORS 163.680 provided:

"(1) 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.

"(2) Violation of subsection (1) of this section is a Class C felony." ¹

Defendant demurred, arguing that ORS 163.680 (1987) violated Article I, section 8, of the Oregon Constitution. ² The trial court sustained defendant's demurrer, and a divided Court of Appeals, sitting in banc, affirmed that ruling. State v. Stoneman, 132 Or.App. 137, 888 P.2d 39 (1994).

We allowed the state's petition for review in order to address the constitutional question posed by this statute. For the reasons that follow, we conclude that ORS 163.680 (1987) did not violate Article I, section 8. We therefore reverse the decision of the Court of Appeals.

It is important at the outset to note that the portion of ORS 163.680 (1987) involved in this case criminalized only the purchase of a very limited and specific kind of material, i.e., the statute dealt exclusively with commerce in visual reproductions--materials that employ photographic or videographic methods to reproduce an event. ³ The statute's reach further was confined by the requirement that those visual reproductions depict actual children engaged in "sexually explicit conduct." ⁴ Thus, materials that merely offer the illusion that actual children are involved (as, for instance, when the subjects are over the age of 18 but appear to be younger) were not included within the statute. Moreover, the child's participation in the act must be real, i.e., the sexual act may be "simulated," but the child's participation in that act cannot be. ⁵

A necessary consequence of those legislative limitations is that the photographs and films described in ORS 163.680(1) (1987) can be produced only if someone photographs, films, engages in, or solicits sexual conduct by children--individuals unable by virtue of their age to give their informed consent to such activity. And, because such activities, by their very nature, are abusive to children, it follows that a violation of ORS 163.680(1) (1987) necessarily involves the purchase of material that is directly and inextricably connected with sexual abuse of children.

Ultimately, it is that fact that frames the central legal question posed by this case: Did the focus of ORS 163.680 (1987), i.e., the focus on sexual abuse of children, set the statute apart from the type of anti-obscenity laws that this court held to be invalid restrictions on speech in City of Portland v. Tidyman, 306 Or. 174, 759 P.2d 242 (1988), and State v. Henry, 302 Or. 510, 732 P.2d 9 (1987)? ⁶

To answer that question, we begin, as did the court in Henry, by noting the breadth of our state's constitutional guarantee of free expression. The text of that guarantee extends not only to written and spoken communications, but also to verbal and nonverbal expressions in film, photographs, and the like. Henry, 302 Or. at 515, 732 P.2d 9. It embodies a right to be free of restrictions that are "written in terms describing the forbidden content of [the expression.]" Tidyman, 306 Or. at 179, 759 P.2d 242. Put differently, Article I, section 8,

"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."

State v. Robertson, 293 Or. 402, 412, 649 P.2d 569 (1982).

sub542 The state first argues that, because the welfare of children is at stake, we should apply a different, and less stringent, rule than the one stated above. In particular, the state urges us to follow federal constitutional jurisprudence by balancing the state's strong interest in protecting children against the relatively insignificant burden that the statute imposes on free expression. In support of that argument, the state adverts to various comments embedded in the opinions issued by this court, each of which purportedly supports the notion that Article I, section 8, is, at times, susceptible to judicial balancing. See, e.g., In re Fadeley, 310 Or. 548, 561, 802 P.2d 31 (1990) (free speech "may be curtailed, for example, in the regulation of certain professions"); Tidyman, 306 Or. at 192, 759 P.2d 242 (Gillette, J., concurring in part and specially concurring in part) ("The right of the city, a county or the state to enact legislation to protect the welfare of children approaches the plenary.").

We think, however, that the balancing approach for which the state contends is so contrary to the principles that have guided this court's jurisprudence respecting freedom of expression issues under Article I, section 8, that it cannot be countenanced. It is axiomatic that, among the various interests that the government of this state seeks to protect and promote, the interests represented by the state constitution are paramount to legislative ones. Consequently, a state legislative interest, no matter how important, cannot trump a state constitutional command. See Oregonian Publishing Co. v. O'Leary, 303 Or. 297, 305, 736 P.2d 173 (1987) ("The government cannot avoid a[n unqualified] constitutional command by 'balancing' it against another of its obligations."); see also Deras v. Myers, 272 Or. 47, 54 n. 6, 535 P.2d 541 (1975) (suggesting that balancing approach is incompatible with Oregon's freedom of expression guarantee). Article I, section 8, does guarantee freedom of expression without qualification--"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" (emphasis added)--and is, consequently, incompatible with a balancing approach.

We reject the state's suggestion that we abandon the rule that the court traditionally has employed in resolving Article I, section 8, issues, in recognition of the particular importance of the legislative objective at issue here. We must, and will, apply that rule to resolve the free speech issue that is now before us. ⁷

We begin that exercise by deciding whether ORS 163.680 (1987) was on its face "written in terms directed to the substance of any 'opinion' or any 'subject' of communication." Robertson, 293 Or. at 412, 649 P.2d 569. A statute that is so written is invalid on its face, unless it fits "wholly" within some "historical exception." Id. ⁸

If the enactment's restraint on speech or communication lies outside an historical exception, then a further inquiry is made--whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself. If the actual focus of the enactment is on such a harm, the legislation may survive scrutiny under Article I, section 8. See discussion infra at 545- 46, 920 P.2d at 540-41; State v. Moyle, 299 Or. 691, 695, 705 P.2d 740 (1985) (so holding); see also Tidyman, 306 Or. at 184, 759 P.2d 242 (coercion statute at issue in Robertson was valid because it forbade compelling or inducing unwilling behavior--the harmful effect--by means of specified kinds of threats; it did not forbid threats as such). If such a statute expressly prohibits certain forms of expression, it must survive an overbreadth inquiry before it can be found constitutional.

Even statutes that do not by their terms implicate speech or expression--i.e., statutes that are by their terms aimed only at "effects"--also are subject to challenge under Article I, section 8, on vagueness grounds or on the ground that the statute's reach, as applied to defendant, extends to privileged expression. State v. Plowman, 314 Or. 157, 164, 833 P.2d 558 (1992); Robertson, 293 Or. at 417-18, 649 P.2d 569. Finally, and even if a restraint on freedom of speech or expression cannot be justified under any of the foregoing considerations, it may nonetheless be justified under the "incompatibility exception" to Article I, section 8. See, e.g., In re Lasswell, 296 Or. 121, 125-26, 673 P.2d 855 (1983) (incompatibility of full range of expression with obligations of...