Kevin L. Mannix. et al. v. Theodore R. Kulongoski (SC S42595, S42596, S42572)

In early July 1996 The Oregon Supreme Court certified a ballot title for a ballot measure that if passed would amend the Oregon Constitution and in effect overturn the Courtís interpretation of Art. 1, Sec. 8 of the Oregon Constitution in State v. Henry and subsequent cases dealing with the stateís authority to regulate obscene material. Measure 31 failed at the ballot box.

On consolidated direct review of three petitions to review a ballot title. Ballot title certified. Opinion of the Court by Justice W. Michael Gillette. Justice Edward N. Fadeley dissented and filed an opinion.

The proposed measure would amend Article I, section 8, of the state constitution by requiring that "[o]bscenity, including child pornography, shall receive no greater protection under [the state] Constitution than afforded by theConstitution of the United States."

Attorney General Theodore Kulongoski certified a ballot title with a caption that described the measure as amending the constitution so that OBSCENITY MAY RECEIVE NO GREATER PROTECTION THAN UNDER FEDERAL CONSTITUTION

Several petitioners, in three separate petitions, challenged various aspects of the Attorney General's ballot title. Petitioners argued that the ballot title's omission of the term child pornography to identify the subject of the measure potentially would be misleading to the voters.

The Court concluded that "child pornography" is a subset of "obscenity," and that the use of the term "obscenity" in the title sufficiently identified the subject of the measure.

The Supreme Court concluded that none of petitioners' other arguments demonstrated a failure on the part of the Attorney General to substantially comply with the requirements of ORS 250.085(5) and ORS 250.035(2). Accordingly, the Court certified the following ballot title:

RESULT OF "YES" VOTE: "Yes" vote limits free speech protection for "obscenity, including child pornography" to federal constitution's level.

Constitution's current right to speak freely on any subject, including obscenity.

SUMMARY: Amends Oregon Constitution. Oregon Constitution now protects the "right to speak, write, or print freely on any subject." The Oregon Supreme Court has held that provision protects obscenity. United States Constitution's free speech provision does not currently protect obscenity. Measure would state that "obscenity, including child pornography," may receive no greater protection than under United States Constitution. Measure thus would remove Oregon Constitution's current protection for obscenity. Measure would limit state judges' authority to interpret free speech provision as applied to obscenity, including child pornography.

Justice Edward N. Fadeley, in a dissenting opinion, wrote that the Supreme Court should not certify the proposed ballot title for the state voters' informational use. The title employs erroneous assumptions about the effect of the measure.

Justice Fadeley wrote that the certified ballot title also fails to recognize and inform the voters of the substantial difference in wording and purpose of the Oregon State Constitution's provision on freedom of speech, expression, and thought compared with those of the federal First Amendment.