explaining that the coercion statute, which included the element of “mak[ing] a demand upon another person,” was “directed in terms against the pursuit of a forbidden effect” and that the statute falls in category two because “speech is a statutory element in the definition of the offense”
How later courts described this case
- explaining that the coercion statute, which included the element of “mak[ing] a demand upon another person,” was “directed in terms against the pursuit of a forbidden effect” and that the statute falls in category two because “speech is a statutory element in the definition of the offense”
- stating that an as-applied challenge asserts that “the statute could not be constitutionally applied to Tthe defendant’s] particular words or expression, not that [the law! was drawn or enacted contrary to Article I, section 8”
- explaining, with regard to a prior version of the statute, that “the crime is not made out if the addressee, though frightened, does not comply or if he acts for reasons independent of the demand or the threat”
- invalidating Oregon “coercion” prohibition that criminalized the “compel[ling] or induc[ing] of another person to engage in conduct from which he has a legal right to abstain, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear” of certain specified harms “if the demand is not complied with”
Written by the judges who cited it.
Distinguished
Distinguished by People v. Feldman, 7 Misc. 3d 794 (2005)
) In Jackson, the court concludedthat Robertson’s holding was inapplicable to Penal Law § 105.05 (2) (e) (v), which defines larceny as including obtaining property by such a threat, because Robertson, rather than calling into question that form of larceny by extortion, found instead that the Oregon statute had “impermissibly extended the principle of extortion to cover threats made in a public setting designed to inf…
Distinguished by City of Portland v. Ayers, 93 Or. App. 731 (1988)
interest” test to which it refers is a federal concept, which the Oregon Supreme Court, in State v. Robertson, supra, and later cases, appears to have said is inapplicable to Article I, section 8.
The opinion
PETERSON, J.,
concurring.
I concur with the majority’s analysis insofar as it applies to ORS 167.275(l)(e). As will appear below, I am not convinced that ORS 167.275 is constitutionally defective in all its parts, and therefore write separately to set forth the bases for my conclusions. One reason for the problem in this case is the awkwardly written statute, ORS 163.275. Using the subpart under which the charge was brought for illustration, it appears that the statute has three elements:
*438 1.The threat: A threat by the defendant to expose or publicize a secret tending to subject some person to contempt.
2. The demand: A demand by the defendant that the one threatened engage in conduct from which he or she has a legal right to abstain or the threat will be carried out.
3. The action: The one threatened is instilled with fear and engages in the demanded conduct.
The statutory element involved in this case is a threat to expose a secret or publicize a fact, whether true or false, tending to subject the threatened person to hatred, contempt or ridicule, ORS 163.275(l)(e). Unlike the statute involved in Landry v. Daley, 280 F Supp 938 (ND Ill 1968), the statute at bar condemns speech which is otherwise lawful.
The majority opinion appears to invalidate the entire statute because its reach into the right of free expression is over broad, so much so that “narrowing cannot be accomplished by judicial interpretation.” I agree that the (l)(e) statutory incursions into protected speech are so substantial that there exists no satisfactory way of judb dally severing constitutional applications of (l)(e) from unconstitutional applications. The alternative of creating constitutional boundaries on a case-by-case basis is not a realistic one, for “the contours of regulation would have to be hammered out case-by-case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” 1
Other subdivisions of ORS 167.275 may be immune from the overbreadth conclusions that fatally fetter subsection (l)(e). Chaplinsky v. New Hampshire, 315 US 568 , 62 S Ct 766, 86 L Ed 1031 (1942), suggests that other subsections of the statute may be valid, for the Supreme Court there upheld a statute which forbade “offensive, derisive or annoying word to any other person who is lawfully in any * * * public place.” Although later federal decisions *439 appear to restrict the Chaplinsky holding, 2 as recently as July 2, 1982, the Supreme Court stated:
“* * * ]\fQ federal rule of law restricts a State from imposing tort liability for business losses that are caused by violence and by threats of violence. * * *” National Association for the Advancement of Colored People v. Claiborne Hardware Co., 458 US 886 , 102 S Ct 3409, 3428 , 73 L Ed 2d 1215 (1982).
Other sections of ORS 167.275 may not be constitutionally infirm for overbreadth, or it may be possible for a court to adopt a construction of one or more of the other subsections which will save the statute. 3 The extent to which Article I, section 8, permits the imposition of criminal liability under other subsections of the statute is not before us. Therefore, though I concur that (l)(e) is invalid for the reasons set forth in the majority opinion, I do not agree that the other subsections are necessarily invalid.
Tanzer, J., joins in this opinion.
Dombrowski v. Pfister, 380 US 4Y9, 487, 85 S Ct 116 , 14 L Ed 2d 22 (1965). Compare Younger v. Harris, 401 US 37, 52 , 91 S Ct 746 , 27 L Ed 2d 669 (1971).
See Popish v. University of Missouri Curators, 410 US 667 , 93 S Ct 1197 , 35 L Ed 2d 618 (1973), Gooding v. Wilson, 405 US 518 , 92 S Ct 1103 , 31 L Ed 2d 408 (1972).
See Tribe, American Constitutional Law 710-716 (1978), and cases cited therein.