# State v. Maynard > Court of Appeals of Oregon · May 31, 2000 · 168 Or. App. 118 URL: https://www.frixlaw.com/law-library/cases/9787598 ## Case - **Full name:** STATE OF OREGON, Respondent, v. JOHN HOWARD MAYNARD, Appellant - **Court:** Court of Appeals of Oregon - **Decided:** May 31, 2000 - **Citations:** 168 Or. App. 118; 5 P.3d 1142; 2000 Ore. App. LEXIS 906 - **Precedential status:** Published - **Opinion:** Concurrence by Armstrong - **Judges:** Deits, Edmonds, De Muniz, Landau, Haselton, Armstrong, Wollheim, Brewer - **Cited by:** 19 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9787598 ## How later opinions describe it (automated extraction) - holding that a defendant waived his appeal on a matter when the appellate 6 briefing contained no actual argument with regard to the application of the relevant 7 rule to the facts of the defendant’s case - discussing the context of ORS § 167.065(1), which has since been repealed ## Opinion text *148 ARMSTRONG, J., concurring. The majority holds that State v. Stoneman, 323 Or 536 , 920 P2d 535 (1996), requires us to repudiate our prior decision in this case and to conclude that ORS 167.065(l)(a) is an effects-based law on expression, albeit one that violates Article I, section 8, of the Oregon Constitution because it is overbroad. The majority is mistaken. Although Stoneman refined one aspect of Oregon’s free speech analysis, that refinement does not undermine our prior conclusion that ORS 167.065(l)(a) is not an effects-based law. The dissenters take a different tack. They now conclude that laws that protect children against exposure to sexually explicit expression constitute a well-established historical exception to the protection afforded free expression by Article I, section 8, and that ORS 167.065(l)(a) fits within that exception. They, too, are mistaken. I will tiy not to repeat what I said at some length in my first concurring opinion in this case. I continue to believe that what I said in that opinion is correct. All that Stoneman did was to add a refinement to the relevant analysis. As I explained in my previous concurrence, the Oregon free speech analysis provides meaningful guidance to lawmakers about the restrictions on expression that they can impose, and it promotes truth in lawmaking on that subject. It does that by drawing a distinction between two types of laws that can be adopted to restrict expression. One type involves laws that come within a well-established historical exception to the protection afforded free expression by Article I, section 8. For the most part, laws of that type are laws that can be characterized as conventional crimes involving expression. They include “perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.” State v. Robertson, 293 Or 402, 412 , 649 P2d 569 (1982). The Supreme Court distinguished in Robertson between conventional and other historical crimes involving expression “so as not to imply that constitutional freedom of expression today does not extend to crimes known before the Bill of *149 Rights, such as seditious or criminal libel, that restrained freedom of public disclosure and debate.” Id. at 433 n 28. In that light, a crime is a conventional crime if it restricts expression to prevent its use as an instrument to cause harm. For example, laws against fraud restrict expression to prevent people from using it to take money from other people by dishonest means, and laws against perjury and false swearing do so to prevent people from using expression to impair governmental functions that depend on accurate information. That type of purpose contrasts with laws that restrict expression to control behavior by controlling people’s ideas and beliefs. For example, laws against seditious libel restrict expression about the government in order to control people’s attitudes and behavior toward it. Similarly, a law that restricted the dissemination of racist literature to prevent people from developing racist beliefs and acting on those beliefs would not be a conventional crime involving expression. 1 The distinction between conventional and other crimes involving expression is important, because it bears on whether the laws on those crimes survived the adoption of Article I, section 8. To have survived, the laws must have been well established at the adoption of Article I, section 8, and must demonstrably have been intended to survive its adoption. Robertson, 293 Or at 412 . Robertson suggests that well-established conventional crimes involving expression survived the adoption without the need to demonstrate that they were intended to survive it, but crimes that were not conventional crimes must be shown to have been intended to survive it. See id. at 433 . See also State v. Moyle, 299 Or 691, *150 696 , 705 P2d 740 (1985) (holding that subsection of harassment statute prohibiting certain threats was not part of a well-established historical exception). The role that that type of law plays for lawmakers who want to restrict expression is limited, because few laws come within an historical exception. However, lawmakers concerned about conduct that is regulated by such laws “may revise [those laws] and extend their principles to contemporary circumstances or sensibilities. If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means. Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle.” Robertson, 293 Or at 433-34 (citations omitted). The second type of law that Article I, section 8, permits lawmakers to adopt are laws that focus on the effects of expression. “A law of that kind is [one] that expressly or by clear inference identifies the effects [that] it addresses, and that applies when the effects are shown to exist. * * * “To be valid under Article I, section 8, such a law must satisfy the following test: First, the effects to which the law is directed must be effects that the state lawfully can address by restricting expression. * * * Second, the law must function so that it applies only when the harmful effects to which it is addressed are shown to exist. * * * Finally, the law must not reach constitutionally privileged communication, that is, it must not prohibit or regulate expression in which people have a privilege to engage without governmental interference.” State v. Maynard, 138 Or App 647, 657-58 , 910 P2d 1115 (1996) (Armstrong, J., concurring) (emphasis in original; citations omitted), vacated and remanded 327 Or 582 , 964 P2d 264 (1998). *151 The refinement that Stoneman introduced concerns the second part of the test. Generally, effects-based laws restricting expression are written so that the harmful effects against which they are addressed are made operative elements of the laws, thereby satisfying the requirement that the restrictions apply only when the effects are present, because the effects must be shown to exist for the restrictions to apply. See, e.g., Moser v. Frohnmayer, 315 Or 372, 379-80 , 845 P2d 1284 (1993); City of Portland v. Tidyman, 306 Or 174, 184-91 , 759 P2d 242 (1988). Stoneman involved a criminal law in which the harmful effect to which the law was addressed was not made an express element of the crime. However, the harm necessarily was present whenever the proscribed expressive material was shown to exist, so the law would apply only when the harmful effect was present. Stoneman, 323 Or at 545-49 . The law in Stoneman prohibited the purchase of visual reproductions of children engaged in unlawful sexual conduct. The court identified the harm against which the law was addressed as the sexual abuse of children involved in the production of the proscribed material. The court concluded that the law “prohibited the purchase of certain communicative materials, not in terms of their communicative substance, but in terms of their status as the products of acts that necessarily have harmed the child participants. So understood, it will be seen that the statute punished sexual exploitation by commerce that is a continuation and an integral part of the underlying harmful acts.” Stoneman, 323 Or at 548 (emphasis in original). Given the harm against which the law was addressed, the state would necessarily establish that harm by establishing the content of the proscribed material. Hence, the law satisfied the second part of the test for effects-based laws, because it restricted expression only when the harmful effects against which it was addressed existed. Contrary to the lead opinion’s view, the law at issue in this case, ORS 167.065(l)(a), fails that test. The law prohibits people from furnishing expressive material to children that depicts certain forms of sexual conduct. The lead opinion *152 identifies the harm against which that prohibition is addressed as the sexual stimulation or arousal of children. See 168 Or App at 123-25. The problem is that the prohibition is written in terms of the content of the material rather than the purpose for which it is furnished. Consequently, the prohibition applies without regard to whether the material caused, or would cause, the identified harm. Two examples should illustrate the point. A 17-year-old boy finds some X-rated magazines that his father had purchased years earlier and had left in a box in the basement of their home. The 17-year-old confronts his 16-year-old brother with them and asks him whether they are his. The younger brother looks through them and says that they are not. The older brother returns them to the box and admonishes the younger brother not to retrieve them. The older brother would violate ORS 167.065(l)(a) by giving the magazines to his younger brother, without regard to whether that act would or did cause the brother to be sexually stimulated or aroused. More starkly, as a joke, an adult gives his blind, 17-year-old brother an X-rated magazine and tells him that it is a news magazine that contains an interesting story that he should share with his teacher at school. The younger brother takes it to school and presents it to his teacher, who promptly confiscates it. The older brother’s act in furnishing the magazine to his younger brother would violate ORS 167.065(l)(a) even though, in doing so, he did not, and could not, cause his younger brother to be sexually stimulated or aroused. As the examples demonstrate, the state is not required to show that the material that ORS 167.065(l)(a) prohibits people from furnishing to children had any effect, including the effect identified by the majority. The state need show only that the material is of the type that the law proscribes. That was also true with the law in Stoneman , with one, critical difference. There, the proscribed material, itself, embodied the harmful acts that the state sought to prevent by prohibiting commercial distribution of the material: “Of paramount importance to [the Stoneman] holding was the fact that child abuse is a harm that properly is subject to government proscription and that such abuse necessarily *153 had to occur in order to produce the expressive conduct in question.” Vannatta v. Keisling, 324 Or 514, 538 , 931 P2d 770 (1997) (emphasis in original). Here, furnishing to children the expressive materials covered by ORS 167.065(l)(a) will not necessarily cause any harmful effect, let alone the harmful effect that the lead opinion infers that the law seeks to prevent. Consequently, Stoneman adds nothing relevant to the determination whether ORS 167.065(l)(a) is an effects-based law. It is not such a law, because no harmful effect necessarily occurs or needs to be shown for the law to apply. The lead opinion errs in concluding otherwise. 2 The last time that this case was before us, four members of the court wrote opinions on the constitutionality of ORS 167.065(l)(a), and none of them concluded that the law fit within a well-established historical exception to the protection afforded free expression. Stoneman rejected the state’s argument that the law at issue in that case came *154 within such an exception, and nothing about the court’s treatment of that issue in Stoneman altered in any way the analysis that applies to the resolution of that issue in this case. Stoneman, 323 Or at 545 . Nevertheless, the dissents now conclude that ORS 167.065(l)(a) fits wholly within a recognized historical exception and, hence, does not violate Article I, section 8. The dissents rely for their conclusion on a body of law that prohibited the dissemination of certain sexually explicit or obscene material to anyone. That body of law developed over a 150-year period from the early eighteenth century through the adoption of our constitution. It sought to control sexual attitudes and behavior by controlling access to expressive materials that depicted or described sexual activity. It developed as an outgrowth of a body of law on seditious libel and blasphemy that sought to control public attitudes and behavior toward government and religious institutions by controlling access to information that was inconsistent with the views of those institutions. 3 The Supreme Court considered that body of law in State v. Henry, 302 Or 510, 514 , 732 P2d 9 (1987), to determine whether it constituted a well-established historical exception on which the state could rely to uphold a law that prohibited the dissemination of certain sexually explicit material to anyone, adults and children alike. The court held *155 that it did not. Id. at 522-23 . Nevertheless, the dissents conclude that that same body of law constitutes a well-established historical exception for laws that restrict the dissemination of the same type of material to children. I am at a loss to understand how that can be. For an historical exception to apply, the law on which the lawmaker relies for the exception must have been well established and must demonstrably have been intended to survive the adoption of Article I, section 8. Robertson, 293 Or at 412 . The dissents do not explain, because they cannot, how a uniform body of law that imposed a blanket prohibition on the dissemination of sexually explicit material to everyone can be divided into two parts: one part directed toward adults that was not well established and that was not demonstrably intended to survive adoption of the free speech guarantee (Henry) and one part directed toward children that was. The law on which they rely draws no such distinction. Everything that the dissents offer as support for their contention that ORS 167.065(l)(a) comes within a well-established historical exception applies equally to whether the statute at issue in Henry , ORS 167.087, came within such an exception. If that body of law did not meet the test in Henry , it cannot meet it here. 4 At bottom, the law on obscene libel is not law that involved a conventional crime. It is law that is indistinguishable in its character from that of seditious and criminal libel. That entire body of law sought to restrict expression in order to control ideas and beliefs and the behavior that might result from them. The Supreme Court has concluded in Robertson, Henry, and Wheeler v. Green, 286 Or 99, 117-19 , *156 593 P2d 777 (1979), that none of that law survived the adoption of Article I, section 8. We cannot conclude otherwise. 5 Finally, as I explained in my first concurrence in this case, 6 a conclusion that ORS 167.065(l)(a) violates Article I, section 8, does not mean that the state is powerless to protect children against the harmful effects of exposure to sexually explicit material. The state can address those effects, but it must do so through laws that focus on the effects rather than on the expression itself. Of course, a law against fraud could be characterized as a law that controls people’s beliefs, for example their belief about the characteristics of a product, and their behavior as a result of those beliefs, the purchase of the product. The point, however, is that a conventional crime such as fraud is not concerned with expression as such, for example with whether someone makes a false statement about a product, but only with its use to produce the proscribed harm: taking a person’s money. Laws that fall outside that principle are laws that proscribe expression independently of its effects. The proscribed expression presumably has objectionable effects (if nothing else, that a sufficient number of people do not like it), but the imposition of the restriction does not depend on the expression having any particular effect. Moreover, even when sexual stimulation or arousal occurs as a result of furnishing sexually explicit material to children, it is not clear whether, in light of current law, that necessarily causes or could cause harm. Assume that two sexually active 17-year-olds are in a committed relationship. They commit no crime and violate no law by engaging in sexual activity together, and there is no prohibition against their use of sexually explicit language to stimulate or arouse each other sexually. However, if the girl gives her boyfriend photographs that she took of the two of them engaged in sexual activity, a sound recording of them engaged in that activity, or a sexually explicit note, she would violate the law against furnishing sexually explicit expressive material to children. ORS 167.06511). It is unclear why some expression that could lead to sexual stimulation or arousal is harmful, but some of the same expression and the sexual activity itself are not considered harmful enough to merit restriction. Had the law been written to address effects, the legislature would have been required to identify the circumstances in which it is harmful to give children expressive material that could cause them to be sexually stimulated or aroused. Instead of doing that, the legislature wrote a law that imposes a blanket prohibition on providing certain sexually explicit material to children, coupled with blanket exemptions to that prohibition. The effect of doing that is to permit some people but not others to give the proscribed material to children. For example, a librarian can allow a child to borrow an X-rated book, videotape, or magazine from a library, but a commercial bookseller or video store cannot rent or sell the same thing to the child. See ORS 167.065(1); ORS 167.085(2). It is difficult to see the distinction between those two acts in terms of any harm caused to the child. The whole point of the Oregon analysis is to require lawmakers to write laws restricting expression in terms of the harmful effects that the restrictions seek to prevent, because that requirement forces lawmakers to agree on those effects and to confront the problems that imposing the restrictions create. The lead opinion permits the legislature to avoid that task and thereby undercuts the entire analysis. Queen v. Read, 2 Strange 789, 88 Eng Rep 953 (KB 1708), is the first published case in which English or colonial courts considered whether obscene libel constituted a crime. The court held that it did not: “A crime that shakes religion, as profaneness on the stage, &c. is indictable; but writing an obscene book, as that intitled fszcl, ‘The Fifteen Plagues of a Maidenhead,’ is not indictable, but punishable only in the Spiritual Court.” Read, 88 Eng Rep at 953 (footnotes omitted). Hence, as of 1708, seditious and profane expression could be penalized by the government, but obscene expression could not. The court reversed itself 19 years later in Rex v. Curl, 2 Strange 788, 93 Eng Rep 849 (KB 1727), adding obscene libel to the existing restrictions on expression. Curl was followed by Rex v. Wilkes, 4 Burrow 2527,98 Eng Rep 327 (KB 1770), in which John Wilkes, an opponent of King George III and his government’s policies in North America, was convicted of publishing “a seditious and scandalous libel” I The No?-th Briton) and an “obscene and impious libel” (Essay on Woman). After the United States was established, a number of states and the federal government built on the English common law of obscene libel through court decisions and statutes. One way that Judge Landau tries to finesse that problem is by reversing the relevant test. The test requires the state to demonstrate that the applicable law on which it relies for an historical exception was intended to survive the adoption of the constitutional guarantee. See Robertson, 293 Or at 412 . Judge Landau turns that around by asserting that nothing demonstrates that the law on which it relies for an historical exception was intended to be displaced by the adoption of Article I, section 8. See 168 Or App at 190-92. That focus is precisely backwards. Moreover, as I explain in the text, no matter what the test, the information that the dissenters offer to satisfy the test is the same information that applied to whether the law at issue in Henry came within such an exception. See also State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 283-84 , 613 P2d 23 (1980) (notes that restrictions on civil liberties adopted contemporaneously with Oregon Bill of Rights are not much use in interpreting Bill of Rights). If Henry said that it did not, we cannot reach a contrary conclusion while remaining faithful to our obligation to follow Supreme Court decisions. Only the Supreme Court can do what the dissents would do here. Judge Landau questions the basis for the distinction that the Supreme Court drew in Robertson between conventional and other crimes involving expression. See 168 Or App at 175-76. The Supreme Court recognized the distinction because there is a difference between laws that restrict expression to prevent its use as an instrument to cause identifiable harm and those that restrict expression to control ideas and beliefs. The court concluded that Article I, section 8, was not intended to displace well-established laws that served the former purpose but was intended to displace laws that served the latter purpose. See, e.g., Robertson, 293 Or at 433 & n 28; Moyle, 299 Or at 696 . The law on obscene libel is an example of the latter. Our task as an intermediate appellate court is to apply the distinction, not to explain why it is untenable. See Maynard, 138 Or App at 669-70 (Armstrong, J., concurring). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9787598. Public record. Not legal advice.