State of Oregon v. Michael R. Stoneman, (CC 90-12-5153-C) (CA A70085) (SC S42085) (Or. 1996)
Copyright Notice

On review from the Court of Appeals in an appeal from the Malheur

County Circuit Court, F. J. Yraguen, Judge. The decision of the Court of

Appeals is reversed. The case is remanded to the circuit court for further

proceedings. Opinion of the Court by Justice W. Michael Gillette. Justice

Robert D. Durham dissented and filed an opinion.

The Oregon Supreme Court today held that a statute criminalizing

the purchase of visual reproductions of children engaged in sexually

explicit conduct did not violate the free speech guarantee contained in the

Oregon Constitution. The statute, ORS 163.680 (1987), which has since been

repealed, made it a Class C felony to "pay or give anything of value to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 defendant, Michael R. Stoneman, was charged with violating

that statute when he allegedly purchased a magazine and a video of the

proscribed type. Defendant demurred, arguing that ORS 163.680 (1987)

violated Article I, section 8, of the Oregon Constitution. The trial court

agreed with defendant and sustained his demurrer against the indictment, and

a divided, Court of Appeals, sitting en bane, affirmed the trial court's

ruling .

In an opinion authored by Justice W. Michael Gillette, the Supreme

Court reversed. The Court began by rejecting an argument that the statute's

constitutionality should be measured by balancing the state's assertedly

strong interest in protecting children against the statute's assertedly

relatively insignificant burden on free expression. The Court concluded that

that approach, which has been employed in federal constitutional cases, is

incompatible with the unqualified command of Article I, section 8 ("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.").

The Court then went on to apply its traditional rules for

resolving Article I, section 8, issues. The Court concluded that ORS 163.680

(1987) expressly describes and prohibits commerce in certain types of

communicative material, and did not fall within the confines of a

well-established historical exception to the constitution as proposed by the

state. The law, nevertheless, is constitutionally valid because it actually

focuses on a harmful effect -- sexual exploitation of children -and applies

only when conduct causes that effect.

In so holding, the Court concluded that ORS 163.680 (1987) applies

only when the production of the forbidden material "necessarily involves

harm to children." The Court stated: "Article I, section 8, does not require

the state to tolerate sexual abuse of children. ORS 163.680 (1987) went no

further than to punish commerce that is a direct fruit of that abuse." After

concluding that the state has authority to punish such exploitation by

commerce -- "[a] state's authority to forbid direct harm to children

includes the authority to destroy the incentives for causing that harm" --

and that the statute, as written, does not extend to privileged expression,

the Court held that ORS 163.680 (1987) is constitutionally valid.

Accordingly, the decision of the Court of Appeals was reversed and

the case was remanded to the circuit court for further proceedings.

Justice Robert D. Durham dissented. Justice Durham agreed with the

majority that the legislature possesses authority to regulate commerce in

films and other visual reproductions derived from the sexual exploitation of

children. However, he disagreed with the majority's conclusion that the

focus of ORS 163.680 (1987) is the prevention of actual child sexual abuse.

In his view, the majority's erroneous interpretation of the statute led the

majority to an incorrect constitutional analysis.

Justice Durham explained that "[t]he obstacle that defeats the

majority's proposed construction of ORS 163.680 (1987) is the word

'simulated' in the definition of 'sexually explicit conduct' in ORS

163.665(3) (1987)." He observed that the statute's prohibitions reach not

only visual representations of "actual" sexual conduct by children, but also

films that depict "simulated" sexual conduct. He observed further that "[a]

'simulated' sexual act is, by definition, one in which no sex act occurs."

He stated that "[t]he majority fails to explain how a simulation that

involves no sexual activity by a child necessarily involves actual sexual

abuse of a child." Although Justice Durham recognized "some visual

representations of a simulation of a sexual act by a child could involve the

child in conduct that actually harms the child," he could not conclude that

"every visual representation of a child in a simulated sexual act

necessarily depends for its existence on conduct that harms the child."

Justice Durham concluded that ORS 163.680 (1987) is impermissibly

overbroad under Article I, section 8, of the Oregon Constitution. Two

factors led him to that conclusion. "First, the legislature expressed its

restriction in terms of the content of certain speech, not a harm

necessarily resulting from speech. Second, the legislature expressly

restrained films portraying any simulation of a sexual act and did not in

terms confine the statute to films that portray actual child sexual

conduct." Justice Durham would have upheld the decision of the Court of

Appeals and the trial court to sustain defendant's demurrer to the indictment.

The full text of the decision will be available online from the The Supreme Court of Oregon Online [Willamette Law School] or from Lexis. You can read the decision on paper in the Law Library.