STATE OF OREGON v. HENRY, 302 Ore. 510; 732 P.2d 9; 14 Media L. Rep. 1011 (Ore. 1987)

Peterson, Chief Justice, and Lent, Linde, Campbell, Carson and Jones, Justices.

Shortly after defendant Earl Henry opened an adult bookstore in Redmond, Oregon, a search warrant was issued by a Deschutes County district judge which resulted in the seizure of almost the entire inventory of the store, including 73 magazines, 142 paperback books, seven newspapers, nine films, one film projector, six decks of playing cards, an additional six periodical magazines, and various business records. Defendant was charged with disseminating obscene material and possession of obscene material with the intent to disseminate under ORS 167.087, which provides in pertinent part:

"(1) A person commits the crime of disseminating obscene material if the person knowingly makes, exhibits, sells, delivers or provides, or offers or agrees to make, exhibit, sell, deliver or provide, or has in his possession with intent to exhibit, sell, deliver or provide any obscene writing, picture, motion picture, films, slides, drawings or other visual reproduction.

"(2) As used in subsection (1) of this section, matter is obscene if:
"(a) It depicts or describes in a patently offensive manner sadomasochistic abuse or sexual conduct;
"(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."

A jury found defendant guilty of dissemination of obscene material and possession of obscene material with the intent to disseminate. Judgment was entered on the two convictions and in each case defendant was fined $ 1,000 and sentenced to imprisonment for 30 days with the jail sentences to runconsecutively. Execution of the sentences was stayed pending appeal.

Defendant raised four issues in his appeal to the Court of Appeals: (1) The search and seizure violated state and federal constitutions; (2) the trial court erred in excluding comparable evidence; (3) the jury verdicts were inconsistent as a matter of law; and (4) ORS 167.087 is unconstitutional under Oregon Constitution, Article I, section 8.

The Court of Appeals reversed the convictions, holding that ORS 167.087 is unconstitutionally vague. Defendant had not made an argument based on vagueness apart from his claim under Article I, section 8, but we understand the Court of Appeals opinion to have seen the two issues as related. [W]e proceed to decide the constitutional issue as presented...

Though we do not disagree with the Court of Appeals, we hold that in any event ORS 167.087 contravenes Article I, section 8, of the Oregon Constitution and cannot be justified as an "historical exception" from Oregon's constitutional guarantee of freedom of expression.

Article I, section 8, of the Oregon Constitution sets forth in plain words that "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."

What does the expression "every person shall be responsible for the abuse of this right" mean? This court obliquely addressed that language in State v. Jackson, 224 Or 337, 347, 356 P2d 495 (1960). There Justice George Rossman related this final clause of the section to the statement in Blackstone's Commentaries that the "liberty of the press" extended only to freedom from "previous restraints upon publications, and not in freedom from censure for criminal matter when published." 4 Blackstone, Commentaries, ch 11, p 142, 151. But Article I, section 8, does not in terms refer to "freedom of...the press" (as the First Amendment does), and Blackstone's narrow view of the extent of freedom of publication has long been rejected in this country as inadequate to the intended sweep of the American guarantees. Since State v. Jackson, this court has related the clause holding every person "responsible for the abuse of" the right of free expression to civil responsibility for harm done thereby. Wheeler v. Green, 286 Or 99, 118, 593 P2d 777 (1973). If the "abuse" clause leaves one subject to criminal prosecution for publications, it could hardly be confined just to "obscene" publications. The clause does not affect the decision of the case before us. We have recently said in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), and In re Lasswell, 296 Or 121, 673 P2d 855 (1983), that the guarantee of freedom of expression of the Oregon Constitution forecloses the enactment of any prohibitory law backed by punitive sanctions that forbids speech or writing on any subject whatever, unless it can be shown that the prohibition falls within an original or modern version of an historically established exception to the protection afforded freedom of expression by Article I, section 8, that this guarantee demonstrably was not intended to displace.

ORS 167.087 as adopted by the legislature captured the obscenity test set forth by the Supreme Court of the United States in Miller v. California, 413 U.S. 15, 93 S Ct 2607, 37 L Ed 2d 419 (1973). Defendant concedes that the statute passes muster under the federal Court's current view of the First Amendment and therefore focuses his attack directly on the viability of the statute under Article I, section 8, of the Oregon Constitution. We therefore address this issue as our own interpretation of the Oregon Constitution independent of any First Amendment analysis by the Supreme Court of the United States....We discuss the federal constitution and federal cases only when of assistance in the analysis of the Oregon Constitution.

We note that Article I, section 8, separately precludes laws "restraining the free expression of opinion" as well as laws "restricting the right to speak, write, or print freely," whereas the First Amendment restrains "abridging the freedom of speech, or of the press." The text of Article I, section 8, is broader and covers any expression of opinion, including verbal and nonverbal expressions contained in films, pictures, paintings, sculpture and the like. The Oregon constitutional provision also covers "any subject whatever" and does not contain any express exception for obscene communications.

The question remains whether "obscene" expressions fall within such historical exceptions as "perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants." State v. Robertson, supra, 293 Or at 412.

The first part of the Robertson test for determining whether a restriction on expression comes within an historical exception focuses on whether the restriction was well established when the early American guarantees of freedom of expression were adopted, i.e., by the late eighteenth and midnineteenth centuries....

The history of obscenity regulations at the time of adoption of the federal constitution...summarized by Justice Douglas in his dissent in the 1973 case of United States v. 12 200- Ft. Reels of Film, 413 U.S. 123, 93 S Ct 2665, 37 L Ed 2d 500... coincides with our review of the history. Justice Douglas prefaced his dissent by observing "there is not the slightest evidence that the Framers intended to put the newly created federal regime into the role of ombudsman over literature. Tying censorship to the movement of literature or films in interstate commerce or into foreign commerce would have been an easy way for a government of delegated powers to impair the liberty of expression. It was to bar such suppression that we have the First Amendment. I dare say Jefferson and Madison would be appalled at what the Court espouses today." 413 U.S. at 132.

He then noted: "The First Amendment was the product of a robust, not a prudish, age. The four decades prior to its enactment 'saw the publication, virtually without molestation from any authority, of two classics of pornographic literature....William King's The Toast...and... John Cleland's Memoirs of a Woman of Pleasure...This was the age when Benjamin Franklin wrote his 'Advice to a Young Man on Choosing a Mistress' and 'A Letter to the Royal Academy at Brussels.'...

The dissent then discussed the early English cases we have cited in this opinion, including Sir Charles Sydlyes Case, 83 Eng Rep 1146, 1146-47 (KB 1663), and Dominus Rex v. Curl, 93 Eng Rep 849, 851 (KB 1727), concluding...:

The censorship of the Star Chamber and the licensing of books under the Tudors and Stuarts was aimed at the blasphemous or heretical, the seditious or treasonous. At that date, the government made no effort to prohibit the dissemination of obscenity. Rather, obscene literature was considered to raise a moral question properly cognizable only by ecclesiastical, and not the common-law, courts. 'A crime that shakes religion (a), as profaneness on the stage, &c. is indictable (b); but writing an obscene book, as that entitled, "The Fifteen Plagues of a Maidenhead," is not indictable, but punishable only in the Spiritual Court (c).' Queen v. Read, 88 Eng. Rep. 953 (K.B. 1707).... 413 U.S. at 134-35 (footnote omitted).

Frederick F. Schauer in his extensive work "The Law of Obscenity, " The Bureau of National Affairs, Inc. (1976), traces the history of obscenity regulation in England and America. His work parallels that of Justice Douglas and reaches a similar conclusion that early American laws made blasphemy or heresy a crime, but sexual materials not having an antireligious aspect were left generally untouched. We agree that blasphemy and profanity laws restricting expression that is contemptuous toward God cannot be equated with obscenity laws, but to the extent that obscenity laws share these antecedents, they cannot be said to have survived the adoption of the American constitutional guarantees.

From our review of the English and American cases and statutes, we conclude that restrictions on sexually explicit or obscene expressions were not well established at the time the early freedoms of expression were adopted....

We now turn to Oregon history to determine if there is any indication that legislation existing at or near the time of the adoption of Article I, section 8, of the Oregon Constitution demonstrates that "obscene" expressions should be included as an historical exception under the Robertson test.

In Robertson we said that 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." 293 Or at 412 (emphasis added). We emphasize this last clause because the constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal restraints on one or another form of speech or writing. The party opposing a claim of constitutional privilege must demonstrate that the guarantees of freedom of expression were not intended to replace the earlier restrictions. We were convinced that they were not so intended with regard to common law prosecutions for "perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud." 293 Or at 412. But the state claims that " obscenity" would have been a conventional crime when Oregon's Bill of Rights was adopted in 1857. The state argues that "in the Oregon Codes of 1853 and 1855, sale, distribution, and possession of obscene writings or pictures was punishable as a misdemeanor by fine and/or imprisonment. Thus, it is apparent that the same type of conduct prescribed under ORS 167.087, i.e., dissemination of obscene writings and/or pictures, constituted a crime at least 5 years prior to adoption of the Oregon Bill of Rights. Therefore, such a crime falls within the historical exception delineated in Robertson."

As we cautioned in State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284, 613 P2d 23 (1980), "[c]ontemporaneous legislative actions should not necessarily be given much weight when construing constitutional principles. Constitutional draftsmen are concerned with broad principles of long-range significance." The only relevant Oregon territorial legislation enacted before Article I, section 8, included prohibitions against the sale, distribution and possession of obscene writings or pictures which manifestly tended to corrupt the morals of youth. Chapter 11, section 10, of the Oregon Code of 1853 ("Steamboat Code"), effective May 1, 1854, and a similar provision of the Oregon Code of 1855, p 234....

The territorial statute, which contained no definition of "obscene" and which was directed primarily to the protection of youth, certainly does not constitute any well-established historical exception to freedom of expression and that statute is in no way the equivalent of statutes punishing libel, perjury, forgery and the like.

In 1960, in State v. Jackson, supra, a 4-3 decision in which the regular members of this Court divided equally, Justice Rossman, joined by Justices McAllister and Perry and Pro Tem Judge Millard, wrote: "Neither party to this appeal argues that obscenity falls within the free speech guarantees of the federal or state constitutions. We think that the authorities marshalled by the majority opinion in Roth v. United States, supra, convincingly demonstrate that obscene speech enjoys no such immunity as a matter of history, and we reject an interpretation of our constitution which would protect it in Oregon." 224 Or at 354. n6 We reject that language as historically unsound. Our approach in more recent cases is that stated in Justice O'Connell's dissenting opinion for three members of this court....He recognized that in interpreting Article I, section 8, of our Oregon Constitution, the federal Roth case was of value only if the reasoning supporting that Court's interpretation of the federal constitution could be used as a guide in construing our own. The dissenting opinion in Jackson disagreed with the conclusion in Roth that " obscenity is not within the area of constitutionally protected speech or press." Justice O'Connell further commented that it is difficult to see how language or material dealing with love, lust and sex is any less entitled to First Amendment scrutiny when regulation is attempted than is the language or depiction of violence and revolution....

In Roth Justice Douglas observed that the First Amendment was a product of a robust, not a prudish age. Likewise, although Oregon's pioneers brought with them a diversity of highly moral as well as irreverent views, we perceive that most members of the Constitutional Convention of 1857 were rugged and robust individuals dedicated to founding a free society unfettered by the governmental imposition of some people's views of morality on the free expression of others. We conclude as we did in reviewing English and American history thats restrictions on sexually explicit and obscene expression between adults were not well established at the time of the adoption of Article I, section 8, of the Oregon Constitution. The history of restriction on undefined obscenity contrasts sharply with the Oregon and common law crimes involving expression such as perjury, theft, forgery and fraud that were well established by 1859.

The very fact that " obscenity" originally was pursued and repressed for its "anti-establishment" irreverence rather than for its bawdiness elsewhere and only to protect the morals of youth in this state leads us to conclude that no broad or all-encompassing historical exception from the guarantees of free expression was ever intended. The restriction on sexually explicit expression embodied in ORS 167.087 does not satisfy the first part of the Robertson test.

We now turn to the issue whether ORS 167.087 censors free speech as guaranteed by the Oregon Constitution. As mentioned, this statute captured the obscenity test set forth by the 1973 Supreme Court of the United States in Miller v. California, supra. After Roth the Supreme Court in numerous subsequent opinions for 15 years was unable to muster five votes for any theory of censorship of obscenity until Miller and Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S Ct 2628, 37 L Ed 2d 446 (1973). By that time Justice Brennan had come to regret that he ever went for the idea of excluding " obscenity" from the First Amendment in the first place, and he dissented. He concluded that the Roth/Miller/Paris Adult Theatre approach is incompatible with a coherent theory of free expression under the First Amendment. We agree with Justice Brennan for the reasons previously expressed and conclude that it is equally incompatible with Article I, section 8, of our state constitution....

Although the Miller test may pass federal constitutional muster and is recommended as a model for state legislatures by the Attorney General's Commission on Pornography, the test constitutes censorship forbidden by the Oregon Constitution. As Judge Tanzer aptly noted in State v. Tidyman, 30 Or App 537, 547, 568 P2d 666, rev den 280 Or 683 (1977), the problem with the United States Supreme Court's approach to obscene expression is that it permits government to decide what constitutes socially acceptable expression, which is precisely what Madison decried: "The difficulty [with the United States Supreme Court's approach] arises from the anomaly that the very purpose of the First Amendment is to protect expression which fails to conform to community standards."

We hold that characterizing expression as " obscenity" under any definition, be it Roth, Miller or otherwise, does not deprive it of protection under the Oregon Constitution. Obscene speech, writing or equivalent forms of communication are "speech" nonetheless. We emphasize that the prime reason that "obscene" expression cannot be restricted is that it is speech that does not fall within any historical exception to the plain wording of the Oregon Constitution that "no law shall be passed restraining the expression of [speech] freely on any subject whatsoever."

We do not hold that this form of expression, like others, may not be regulated in the interests of unwilling viewers, captive audiences, minors and beleaguered neighbors. No such issue is before us. But it may not be punished in the interest of a uniform vision on how human sexuality should be regarded or portrayed. We also do not rule out regulation, enforced by criminal prosecution, directed against conduct of producers or participants in the production of sexually explicit material, nor reasonable time, place and manner regulations of the nuisance aspect of such material or laws to protect the unwilling viewer or children. Again, no such issue is before us. However, no law can prohibit or censor the communication itself. In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally considered "obscene."

The Court of Appeals is affirmed, but for the reasons stated in this opinion.

The full text of this opinion is available on Lexis and in the Law Library.

See also, Ballot Measure #31