PORTLAND, Ore.—They have free speech in Oregon – really free – and they've got constitutional language to back it up, which the state Supreme Court has just reaffirmed and made even broader, especially as it pertains to expression with a sexual message.
Article I, section 8, of the Oregon Constitution provides 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."
That may seem clear on the surface, but the language of the law is often not the language of the common folk, so there's been plenty of litigation over the years as to exactly what that phraseology means.
In particular, there's a decision in State v. Robertson, which states that laws that are directed at restraining expression are permissible when the "scope of the restraint is wholly confined within some historical exception that was well established when the First Amendment guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach."
That's what six judges of the Oregon Supreme Court had to deal with when confronted by Charles Ciancanelli, who, according to the government, had operated an "adult-oriented" business named Angels in Roseburg, Ore., which "offered a menu of 'shows,' to be performed for individual customers or small groups upon payment of a fee," summarized Justice W. Michael Gillette in his opinion in the matter.
Angels was visited at least twice by local police, who, on the first occasion paid to have a female employee of Angels perform a "toy show" for them, which included pleasuring herself with fingers and a dildo in a small private room on the premises. On a second visit, the cops hired two women who "performed a striptease, rubbed their breasts against the officers chests, and engaged in oral sex with one another" – directly after which, the cops busted the gals and Ciancanelli, charging him with "direct[ing], manag[ing], financ[ing] or present[ing]" a "live public show" in which the participants engage in "sexual conduct", which Ciancanelli argued was protected activity under Article I, Sec. 8 of the Oregon Constitution.
Ciancanelli was up against precedent in arguing his case; namely the Robertson decision, which seemed to allow the state to criminalize certain identified "historical exceptions" to Article I, Sec. 8 such as "perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants." However, even that decision was careful to note that, "When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect ... must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such 'overbreadth.'"
In other words, although Robertson granted the state the power to criminalize language that led directly to unlawful effect, even then a court considering such a case must determine that such language was not a "privileged communication" (such as between an attorney and client) and also whether the law itself could be reasonably interpreted so as to avoid a constitutional conflict.
But it was the concept of "historical exceptions" to Article I, Sec. 8 that most concerned the high court judges – so much so that they went back and did their own historical research, both of the choice of wording in the constitutional prohibition and of just how "historical" the alleged "exceptions" were.
Such research led them to an examination of the prejudices and preconceptions of one of the most renown legal scholars in American history, William Blackstone, who wrote numerous commentaries on the laws of England, from which much American statutory law is derived. In fact, the most commonly used legal dictionary is named after Blackstone, and when attorneys and judges talk about historical precedent, they often will refer to Blackstone's writings.
Of particular concern to the Supremes was Blackstone's dictum that, at least under English law, "freedom of the press" (or of speech) meant only freedom from prior restraint, not freedom from punishment for the consequences that may flow from any speech or publication.
"[W]here blasphemous, immoral, treasonable, schismatical, seditious or scandalous libels are punished by the English law ... the liberty of the press, properly understood, is by no means infringed or violated," quoted Justice Gillette from Blackstone's 4 Commentaries on the Laws of England. "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: ... but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. ... Thus the will of individuals is still left free; the abuse only of that free-will is the object of legal punishment. ... So true will it be found, that to censure the licentiousness, is to maintain the liberty of the press."
Trouble was, "[censorship of] licentiousness is ... liberty of the press" apparently sounded to the court too much like Orwell's three tenets of Oceania from 1984: "War Is Peace; Freedom Is Slavery; Ignorance Is Strength." So they dug a little deeper, focusing on the Constitution's use of the word "abuse."
"But what constituted 'abuse' under [Blackstone's] formulation?" asked Justice Gillette in his opinion. "On that point, the mainstream legal treatises again tended to treat Blackstone as the oracle: His pronouncements — that liberty of speech does not extend to publications that are 'improper, mischievous, or illegal' or that are 'on a fair and impartial trial ... adjudged of a pernicious tendency' — often were repeated and endorsed. ... Thus, many respected early and mid-nineteenth century jurists and legal writers appear to have believed that 'abuse' covered at least some speech that the governing authority deemed to have anti-social tendencies or to threaten the public peace. That Blackstonian formulation, purporting to be a restatement of the English common law, extended to broad categories of speech including, apparently, libel, seditious libel, blasphemy, and obscenity." [Citations omitted here and below]
And while Justice Gillette acknowledges that most legal scholars of the 19th century (at the mid-point of which the Oregon Constitution was adopted) would have agreed with Blackstone's interpretation, earlier philosophers and scholars had a decidedly different view.
"Interestingly, the foregoing view of the right of free speech was contrary, in many respects, to the philosophy that had animated the American Revolution," wrote Justice Gillette. "Many of the leading lights of the American revolutionary period were greatly influenced by the 'natural rights' philosophy that was advanced in the works of John Locke and that later was popularized, and fused with the republican political tradition, by John Trenchard and Thomas Gordon under the nom de plume 'Cato.' ... On the issue of freedom of speech, Cato wrote:
"'Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech; Which is the Right of every Man, as far as by it does not hurt and controul the Right of another; and this is the only Check which it ought to suffer, the only Bounds which it ought to know.'"
"To the more libertarian adherents of the natural rights philosophy," the court continued, "freedom of speech was an 'inalienable' natural right — that is, it was not part of the package of natural rights that individuals ceded to the community in order to obtain the protections and benefits of civil society. Rather, it was a right that the individual always retained, as he or she would in a state of nature. Even for natural rights adherents, however, the right was not absolute. According to the natural rights theory, inalienable rights, such as freedom of conscience and speech, were bounded, as they were in the state of nature, by the equally fundamental rights of other individuals. If the state had any authority at all to act in these protected areas, it was to enforce the fundamental rights of other individuals, not to protect society as a whole from undesirable 'tendencies' or to promote the majority's idea of the greater good. That is decidedly different from the Blackstonian notion of 'abuse', which extended to everything that Parliament had identified as contrary to the public good (a notion that included purely social values like order, morality, and religion)."
Noting that Cato's idea "continued as an important legal and political philosophy until the latter part of the nineteenth century," and that it "held particular appeal" for American pioneers and settlers "who often had moved west to avoid the constraints of settled society and tended to place an especially high value on individual liberty," the Ciancanelli court, while giving deference to Blackstone, felt that the "more libertarian" interpretation of "free speech" was somewhat more likely what the framers of Oregon's Constitution had in mind in writing Article I, Sec. 8.
Justice Gillette bolstered this view by quoting from historical accounts of the constitutional debate over that section, and concluding that at least one major participant "seemed to have feared" that "a conservative judiciary would abuse its authority to interpret the Oregon Constitution to undermine the very freedom that ... Article I, section 8, sought to guarantee."
"The foregoing leaves us to sort out the pivotal conundrum inherent in Article I, section 8: What is the scope of the term, 'the abuse of this right'?" Justice Gillette later summarizes. "In short, no unassailably correct answer, based entirely on the provision's wording, case law, history, or any other objective evidence, is possible. ... It should be clear from the foregoing discussion that the state has failed to meet its burden: To the contrary, after applying the methodology set out in Priest [v. Pearce] to Article I, section 8, we are satisfied that the Robertson framework is justified. That framework is generally compatible with the 'natural rights' approach that we have described as a possible source of Article I, section 8. Moreover, it is more consistent with that approach than the malleable and indistinct 'balancing' test proposed by the state. We therefore will continue to analyze challenges brought under Article I, section 8, using the Robertson framework (including Robertson's notion of a historical exception)."
More discussion of the "historical exception" concept followed, which, according to the court, bolstered a "natural rights" interpretation of the Robertson decision.
"Notably, the examples that Robertson provides of valid historical exceptions — 'perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants' — all fall into the former category: Although the laws making those acts criminal may be 'written in terms' directed at speech, all those crimes have at their core the accomplishment or present danger of some underlying actual harm to an individual or group, above and beyond any supposed harm that the message itself might be presumed to cause to the hearer or to society. Also notably, the distinction between 'conventional' and other historical speech crimes fits remarkably well with Robertson's overall point — that Article I, section 8, is concerned with prohibitions that are directed at the content of speech, not with prohibitions that focus on causing palpable harm to individuals or groups."
In other words, laws directed at harm to individuals, despite their possible framing in terms of speech restrictions, can be valid under Oregon's Constitution, while laws that do not implicate direct harm but merely bolster some vague societal "good" cannot stand.
The court then turned to the application of these principles to the case at hand. After dismissing the idea that ORS 167.062, the live sex show statute, is directed only at public displays of sexual conduct (which is defined in ORS 167.060(10)), the court turned to the question of whether the law is an improper restriction on expression.
"In arguing against the suggestion that ORS 167.062 is directed at expression, the state also relies on this court's recognition, in Huffman and Wright Logging Co. v. Wade ... that conduct is not protected expression under Article I, section 8, merely because the actor intends the conduct to convey a message. But, in so arguing, the state loses sight of the fact that the issue here is the overall constitutionality of a statute, not whether defendant can claim that his particular conduct is expressive and therefore immunized from any and all criminal liability. It may or may not be true that the sexual acts that defendant directed were conduct in the most basic sense and, as such, could be punished under some other statute. But the fact remains that the statute at issue here — ORS 167.062 — prohibits and criminalizes those acts only when they occur in an expressive context, i.e., in a 'live public show.' Under those circumstances, we cannot avoid the conclusion that the statute is directed primarily, if not solely, toward the expressive aspect of the conduct that it describes. That is, the statute is one restraining free expression."
Okay; sexual conduct as part of a show is expression — but is it one of those "historical exceptions" referred to in Robertson that would allow it to be prosecuted anyway? The court thought it was not.
"[H]ere, where the criminal prohibitions at issue are and always have been directed at protecting the hearer (or, in this case, viewer) from the message,only a more direct expression of an intent to immunize the historical prohibition would suffice. We see nothing in the state's arguments or elsewhere in the record that even approaches the required showing."
"To conclude: ORS 167.062 is directed by its terms at expression and does not fall under a well-established historical exception that the framers of Article I, section 8, demonstrably did not intend to reach. It is unconstitutional on its face. It follows that defendant's convictions under ORS 167.062 must be reversed."
This case is a great victory for the concept of free expression in Oregon, which state has long been known as a bastion of individual rights more expansive than even those recognized in the federal Constitution.
"In our case," noted attorney Bradley J. Woodworth, co-author, with partner Lake Perriguey, of amicus briefs on behalf of the petitioner, "the state failed to justify, by means of an historical basis, an abridgement of live sexual conduct in a public show. Therefore, lingerie modeling shops, long an Oregon staple, will continue to thrive — even those shops which include shows involving self touch — inside and out."
Sadly, however, this same court rejected Ciancanelli's claim that his conviction for promoting prostitution through his shows, under ORS 167.012, was likewise a violation of his free speech rights, finding that "the statute is not directed at expression."
"ORS 167.012 prohibits promoting prostitution — owning, controlling, managing, or supervising a prostitution enterprise — regardless of the presence or absence of any circumstances that might add an expressive element to the conduct," the court found. "It is not targeted either at expression itself or at the expressive aspects of certain conduct. It therefore does not, in and of itself, raise an issue of facial unconstitutionality under Article I, section 8."
"In the present case, we have concluded that Article I, section 8, of the Oregon Constitution precludes defendant's prosecution under ORS 167.062 for directing a live public show in which performers engage in certain sexual conduct. We have concluded that, to the extent that ORS 167.062 applies only to sexual conduct in live public shows, it is directed at expression or, at least, the expressive aspect of certain conduct. However, neither that holding, nor the fact that defendant's conduct (directing acts of prostitution) occurred in association with live public shows, transforms his conduct into protected expression for all purposes. Defendant's involvement in directing and profiting from a prostitution enterprise is subject to regulation and punishment, and that is what occurred here. Defendant's convictions for promoting prostitution are affirmed."
The trouble here is, although it is apparently uncontested that the female performers used dildos on themselves and each other, rubbed their breasts on the cops' chests and were paid money to do so — conduct which meets the technical definition of "prostitution" under ORS 167.007, a "person [who] engages in or offers or agrees to engage in sexual conduct or sexual contact in return for a fee" — other venues, including California, have found that in order to be a prostitute, the person must engage in sexual conduct with the person paying the fee. Such was not the case here.
However, given this flawed definition of prostitution, it's easy to see how ORS 167.012 applies to Ciancanelli, since "promoting prostitution" merely requires that a "person knowingly (a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise."
So while this case affirms sexual conduct to be protected expression when it's part of a public show, those who own or manage the venues where such expression takes place still may run risks under the prostitution laws. And while prostitution itself is a Class A misdemeanor, promoting prostitution is a Class C felony, which can carry jail time even for a first offense.
It's also worth noting that the dissent in the case, by Justice Paul DeMuniz, takes the majority to task for concentrating on the "free expression" verbiage of Article I, Sec. 8, and allegedly ignoring the two words that follow, "of opinion."
"The text commands the legislature to respect the free expression of ideas — not conduct — when it forbids laws 'restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever'," Justice DeMuniz wrote. "The separate clauses emphasize that the constitution protects the 'expression of opinion' as well as the 'right to speak, write, or print.' The text of Article I, section 8 thus protects ideas and thoughts expressed as opinion in speech and print, but contains nothing in the text that explicitly would protect public masturbation and sexual intercourse."
Justice DeMuniz also found little conflict between an interpretation of "abuse" under Blackstone and under the "natural rights" advocates, and charged that under various U.S. Supreme Court rulings such as Arcara v. Cloud Books, Inc., one of the seminal obscenity cases, "public acts of masturbation and sexual intercourse for profit are not intrinsically expressive or communicative acts."
Of course, this case was decided under Oregon, not federal, law, but it points up the fact that advocates of free expression and substantive due process as applied to sexual conduct (such as expressed in the U.S. Supreme Court's decision in Lawrence v. Texas) still have their work cut out for them, even in Oregon. Still, the Ciancanelli case is a big step forward for the rights of Oregonians.