The opinion
ARMSTRONG, J.,
dissenting.
The majority concludes that a restriction imposed by the City of Nyssa that requires nude entertainers and their audience to maintain a four-foot distance between each other comes within a historical exception to the protection afforded free expression by Article I, section 8, of the Oregon Constitution. The majority reasons that our decision in State v. Ciancanelli, 181 Or App 1 , 45 P3d 451 , rev allowed, 335 Or 90 (2002), establishes that state prohibitions against sexual conduct and nudity in live expressive performances come within a historical exception to Article I, section 8, so lesser restrictions on that conduct are permitted as well. I respectfully dissent.
I will not repeat the arguments that I made in my dissent in Ciancanelli. All of them apply to the majority’s decision in this case. See Ciancanelli, 181 Or App at 47-54 (Armstrong, J., dissenting).
*652 I will add one comment, however, about the distinction between laws that regulate conduct and those that regulate expression. The principal point of Article I, section 8, and its modern analysis is to identify for the legislature the laws restricting expression that it cannot enact. Laws directed at conduct may run afoul of Article I, section 8, when they are used to restrict expression, but the provision generally does not address the continued validity or enactment of those laws. 1 Because the provision is indifferent to the existence or enactment of laws directed at conduct rather than expression, laws directed at conduct are not the subject of the historical exception component of the modern analysis. That component of the analysis recognizes that Article I, section 8, was meant to displace some but not all laws that restricted expression. It does that by identifying the laws restricting expression that survived the adoption of the guarantee. Because Article I, section 8, was not intended to displace any law that restricted conduct, laws restricting conduct are not the subject of the exception. Consequently, contrary to the majority’s view, the issue here and in Ciancanelli is not whether there were well-established laws in 1859 that restricted public nudity and most forms of sexual conduct. There were such laws, and Article I, section 8, did not affect them.
The existence of those laws does not bear, however, on the determinative issue here, which is whether there were well-established laws in 1859 that specifically restricted sexual conduct and nudity in dance, theatrical, and similar performances presented to willing adult audiences. Neither the state nor the majority has shown that laws of that kind were well established in 1859. Furthermore, precisely because the guarantee in Article I, section 8, is a guarantee of free expression, the state must demonstrate that laws that expressly restricted the expressive use of sexual conduct and nudity in live performances were intended to survive the adoption of the guarantee even if laws restricting sexual conduct and *653 nudity in all other expressive media did not survive the adoption of the guarantee, see State v. Henry, 302 Or 510, 524-25 , 732 P2d 9 (1987), and even if the conduct that was the subject of those restrictions were otherwise lawful. In other words, the state must establish that the people intended to preserve their ability to restrict the expressive use of sexual conduct and nudity in dance, theater, and similar media even if they no longer chose to restrict that conduct independently of its expressive use. Neither the state nor the majority has made that showing.
I will also respond to an argument that the city makes that the majority does not address. The city argues that the restriction that requires nude performers and their audience to remain four feet apart from each other does not restrict expression, because it does not interfere with the ability of the performers to communicate and the audience to perceive the information that the performers present. The city is wrong.
The city ordinance unquestionably imposes a restriction on expression based on the content of the affected expression. It requires dancers, actors, performance artists, choreographers, and directors who use nudity in their expressive work to maintain a four-foot distance between nude performers and their audience while permitting all other performers to get as close to their audience as they choose. A restriction on the manner in which expression can occur based on the content of the expression is a restriction on expression. It does not become something other than a restriction on expression simply because some expression can occur notwithstanding the restriction. 2 If the city were right, then so-called time, place, and manner restrictions on expression would not be considered to be restrictions at all, because *654 they, too, allow expression to occur notwithstanding their imposition.
At bottom, it is the prerogative of those involved in expression to determine how they wish to communicate. Their ability to challenge a particular restriction on expression does not depend on their ability to present evidence that persuades a court that the restriction affects their ability to communicate a particular thought or emotion or the ability of their audience to have a particular reaction or experience. A restriction that targets expression, as the city’s ordinance does, is a restriction that is subject to scrutiny for compliance with the prohibition in Article I, section 8, against the imposition of governmental restrictions on expression.
As to the merits, it is worth emphasizing the effect of the majority’s decision. If the majority is correct, then Article I, section 8, permits the state to prohibit all nudity in all live performances. That means, of course, that plays such as Hair and Oh! Calcutta! and the current Broadway production of The Graduate would be subject to prohibition under the Oregon Constitution. In that light, the majority’s decision in this case places the majority’s decision in Ciancanelli in stark relief. As things now stand in Oregon, the Oregon Constitution provides broad protection against state restrictions on the use of nudity in film, print, and similar media but no protection against restrictions on the use of nudity in live expressive work. That makes no sense. Unfortunately, the untenable dichotomy that the majority has created between live expression and all other expression involving the use of nudity must await correction by the Supreme Court. 3
Cf. State v. Robertson, 293 Or 402 , 417 n 11, 649 P2d 569 (1982) (notes that law directed at conduct conceivably could be challenged as violating Article I, section 8, if it could be established “that suppression of expression itself was the intended or expected object of the law”).
It should be obvious that the effect and effectiveness of communication is affected by the manner in which it occurs. Proximity to a live performance makes a difference to the effect of the performance on an audience. If it did not, then people would not pay more to sit closer to a performance. Both performers and their audience may be mistaken about the importance of proximity to the effect of a particular communication, but a content-based restriction on the distance between performers and their audience cannot be defended on the ground that it is not a restriction on expression.
The majority notes that the First Amendment also protects expression against restriction, so some nudity will be permitted in live performances in Oregon notwithstanding the majority’s decisions in this case and in Ciancanelli. That is true, of course. It should be noted, however, that the state can effectively prohibit nude dancing of the type at issue in this case without violating the First Amendment. See Barnes v. Glen Theatre, Inc., 501 US 560 , 111 S Ct 2456 , 115 LEd 2d 504 (1991).
The majority is also right to note that the policy choices that the people and the state make need not make sense unless the law requires them to do so. However, that should not obscure the fact that the current untenable dichotomy in the treatment afforded nudity and sexually explicit expression under the Oregon Constitution is not the product of historical differences in the treatment of them. Rather, it is the product of the majority’s implicit decision to challenge the Supreme Court’s decision in Henry, 302 Or at 520-25 . I explained at length in my dissent in *655 Ciancanelli how the historical record on which the majority relied in Ciancanelli to uphold restrictions on sexually explicit expression and nudity in live performances is the same historical record that the court in Henry and that we in State v. Maynard, 168 Or App 118 , 5 P3d 1142 (2000), rev den, 332 Or 137 (2001), rejected as insufficient to uphold restrictions on sexually explicit expression in film, print, and other media. See Ciancanelli, 181 Or App at 48-51 (Armstrong, J., dissenting). Hence, the problem lies with us, not with the historical record.