State v. Maynard

LANDAU, P. J.,

dissenting.

At issue in this case is the constitutionality of ORS 167.065(l)(a). That statute prohibits providing to minors depictions of “sadomasochistic abuse, sexual conduct or sexual excitement.” A majority of this court holds that the statute is unconstitutionally overbroad, in violation of Article I, section 8, of the Oregon Constitution. I am not persuaded.

I believe that the prohibitions contained in ORS 167.065(1) are wholly contained within a historical exception to the guarantee of free expression contained in Article I, section 8.1 therefore would not reach the question whether the statute is overbroad under the state constitution. I likewise would not reach the question whether the statute is over-broad under the federal constitution, because defendant did not preserve that issue. Even assuming the issue was preserved, I would conclude that the statute is not overbroad.

I. BACKGROUND

This appeal finds its origins in defendant’s demurrer to his indictment for violating ORS 167.065(l)(a) by knowingly furnishing to minor children pictures depicting sexual conduct. Defendant argued that the statute was unconstitutional, because we had determined that the statute was *165 unconstitutionally overbroad in State v. Frink, 60 Or App 209 , 653 P2d 553 (1982), and State v. House, 66 Or App 953 , 676 P2d 892 , mod 68 Or App 360 , 681 P2d 173 (1984), aff'd on other grounds 299 Or 78 , 698 P2d 951 (1985). The state argued that the effect of Frink and House was more limited. According to the state, those decisions merely declared that the portion of ORS 167.065(l)(a) that prohibited furnishing to minors materials depicting “nudity” was unconstitutionally overbroad and that the remaining portions of the statute were unaffected. The state further argued that the remaining portions of the statute are not unconstitutionally overbroad. The trial court overruled the demurrer.

On appeal, defendant argued that the statute violated Article I, section 8. He also asserted for the first time that it was unconstitutionally overbroad under the United States Constitution. We held that the statute violated Article I, section 8, and did not reach the alternative argument. State v. Maynard, 138 Or App 647 , 910 P2d 1115 (1996). We held that the state was correct in asserting that the effect of Frink and House was merely to strike from ORS 167.065(l)(a) the prohibition referring to the depiction of nudity and to leave intact the remaining portions of the statute that prohibit furnishing to minors materials that depict “sadomasochistic abuse, sexual conduct or sexual excitement.” We held that the remaining portions of the statute, however, were unconstitutional, as well.

Following the method of analysis dictated by State v. Robertson, 293 Or 402, 412-18 , 649 P2d 569 (1982), and its progeny, we began by concluding that the statute prohibited activity that involves speech or expression and that the focus of the statute was on expression itself, not merely a harmful effect of the expression. We then concluded that the statutory limitations on expression were not wholly contained within a historical exception to the protections of Article I, section 8, and are therefore unconstitutional.

Meanwhile, the Supreme Court issued its opinion in State v. Stoneman, 323 Or 536 , 920 P2d 535 (1996). At issue in that case was the constitutionality of ORS 163.680 (1987), which made it unlawful for any person

*166 “to pay or give anything of value to observe sexually explicit conduct by a child known by the person to be under 18 years of age, or to pay or to 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 court began by describing an analytical process slightly different from the one that we applied in our original opinion in this case:

“We begin * * * by deciding whether ORS 163.680 (1987) was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ A statute that is so written is invalid on its face, unless it fits ‘wholly’ within some ‘historical exception.’

“If the enactment’s restraint on speech or communication lies outside an historical exception, then a further inquiry is made — whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself. If the actual focus of the enactment is on such a harm, the legislation may survive scrutiny under Article I, section 8. If such a statute expressly prohibits certain forms of expression, it must survive an overbreadth inquiry before it can be found constitutional.

“Even statutes that do not by their terms implicate speech or expression — i.e., statutes that are by their terms aimed only at ‘effects’ — also are subject to challenge under Article I, section 8, on vagueness grounds or on the ground that the statute’s reach, as applied to defendant, extends to privileged expression. Finally, and even if a restraint on freedom of speech or expression cannot be justified under any of the foregoing considerations, it may nonetheless be justified under the ‘incompatibility exception’ to Article I, section 8.”

Stoneman, 323 Or at 543-44 (emphasis in original; footnote and citations omitted).

In setting forth the foregoing analytical framework, the court rejected the state’s proposal that, because of the importance of protecting children, a different method of analysis was appropriate in evaluating the constitutionality of statutes prohibiting child pornography. The state based *167 that proposal on dictum that appeared in an earlier decision, State v. Henry, 302 Or 510, 521-22, 525 , 732 P2d 9 (1987), to the effect that it might be possible to regulate obscenity “to protect the unwilling viewer or children.” The court concluded that no separate method of analysis was required, but it expressly left open the possibility that the protection of children might constitute a historical exception within the existing analytical framework:

“Nothing in this opinion * * * should be construed to reflect on the continuing vitality of the implication in Henry that the protection of children may constitute an historical exception when assessing the scope of Article I, section 8, thereby removing any state constitutional bar to a statute that is directed at the content of speech but that also falls within the ambit of the exception.”

Stoneman, 323 Or at 543 n 7 (citation omitted).

The court then turned to the statute at issue. It first concluded that ORS 163.680 (1987) prohibited commerce in certain forms of expression. Accordingly, it turned to the question whether the statute was wholly contained within a historical exception to Article I, section 8. The state argued that the statute, in fact, was contained within a historical exception, as shown by the existence of Chapter XI, section 10, of the Statutes of Oregon 1854, pp 210-11, which was directed at persons who “import, print, publish, sell or distribute [matter] containing obscene language or obscene prints * * * manifestly tending to the corruption of the morals of youth.”

The court rejected that argument. Stoneman, 323 Or at 545 . The court first cited its earlier opinion in Henry , in which it rejected the same territorial statute as the basis for finding a historical exception for a modern statute that prohibited the dissemination of “obscene” material, because the territorial statute contained no definition of “obscene” and was directed primarily to the protection of youth. It then referred to this court’s opinion in Stoneman , in which we also rejected the territorial statute as a historical exception for other reasons, namely, that the territorial statute prohibited only distribution to youth while the statute at issue prohibited purchase, and that the territorial statute was aimed at *168 protecting children from viewing obscenity while the statute at issue prohibited them from being the subject of it. Stoneman, 323 Or at 545 .

Having concluded that the statute was not wholly contained within a historical exception to Article I, section 8, the court then addressed whether the actual focus of the statute was harmful effects rather than expression itself. The court concluded that the focus of the statute was the former and not the latter and that the statute was narrowly tailored to reach only those harmful effects and did not extend to privileged expression. Id. at 550 .

Following the issuance of the Stoneman decision, the Supreme Court vacated our decision in this case and remanded for reconsideration in light of that decision. On reconsideration, a majority of this court 1 holds that Stoneman compels the conclusion that ORS 167.065(l)(a) is aimed at the harmful effects of speech rather than at speech itself. The majority nevertheless concludes that the statute is unconstitutionally overbroad, because it is not limited to prohibiting those harmful effects.

Interestingly, although the Supreme Court remanded for reconsideration in light of Stoneman , the majority neglects to apply the analysis that the Supreme Court applied in that case. In particular, the majority omits any consideration of whether ORS 167.065(l)(a) fits wholly within a historical exception to the prohibition of Article I, section 8. That omission is the crux of my disagreement with the majority. In my view, the historical exception analysis cannot be so easily sidestepped.

The majority offers two reasons for its omission of the historical exception analysis. First, it contends that the issue is beyond the scope of the Supreme Court’s remand. According to the majority, the Supreme Court intended that we reconsider this case in light of only a discrete portion of the Stoneman decision, the portion dealing with the court’s effects analysis. 168 Or App at 135. I have searched the *169 Stoneman decision in vain for any suggestion that the scope of our remand is limited to a particular issue; the majority certainly cites none. In any event, I am hard-pressed to understand why the fact that the Supreme Court has remanded this case for reconsideration in light of Stoneman somehow renders me powerless to change my mind about a critical portion of our original analysis of this case. As Justice Frankfurter once complained, “wisdom too often never comes, and so one ought not reject it merely because it comes late.” Henslee v. Union Planters Nat. Bank & Trust Co., 335 US 595, 600 , 69 S Ct 290 , 93 L Ed 259 (1949) (Frankfurter, J., dissenting).

Second, the majority complains that, in any event, it is simply inappropriate to engage in the historical exceptions analysis before determining whether ORS 167.065(l)(a) concerns speech or the effects of speech. The majority’s complaint is ironic. What I propose to do is precisely what the Supreme Court said to do in Stoneman: First, determine whether the statute is directed to the substance of any communication; if so, then determine whether a historical exception applies. If no historical exception applies, only then does the court determine whether the focus of the statute nevertheless is about the effects of speech. The Supreme Court specifically said:

“We begin that exercise by deciding whether [the challenged statute] was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ A statute that is so written is invalid on its face, unless it fits ‘wholly’ within some ‘historical exception.’

“If the enactment’s restraint on speech or communication lies outside an historical exception, then a further inquiry is made — whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.”

Stoneman, 323 Or at 543 (emphasis added; citations omitted; footnote omitted).

Indeed, what I have described as the proper order of analysis not only is what the court said to do, but also is what the court actually did, in Stoneman . As I have described, in *170 its analysis of the statute at issue in that case, the court began with the question whether the statute was on its face written in terms directed at the substance of any subject of communication. Concluding that it was, the court then examined whether the statute was subject to a historical exception. Concluding that the statute was not, the court then turned its attention to whether the focus of the statute was the effects of speech, as opposed to the content of speech. Id. at 543-45 .

The majority complains that what the court said and did in that case are difficult to square with what the court has said and done in other cases, and with that observation I am inclined to agree. But I leave it to the Supreme Court to retract, explain, or adhere to what it said and did in Stoneman . Meanwhile, our charge is to reconsider this case in light of Stoneman — all of Stoneman . And that is what I attempt to do in this opinion. 2

In any event, the majority’s complaint about the order of the analysis is academic. Even assuming that the order is as the majority describes it, if the focus of ORS 167.065(l)(a) is not about the effects of speech, the historical exception analysis is required. In that regard, I find the majority’s analysis unpersuasive. In Stoneman , the court held that a statute concerns the effects of speech only to the extent that what is prohibited “necessarily involves harm to children.” Stoneman, 323 Or at 546 (emphasis in original). In that case, the court held that the statute at issue, which prohibited the production of child pornography, necessarily involves harm to children, because the production of such material is inherently exploitative. Id. at 548 .

In this case, ORS 167.065(l)(a) prohibits the distribution of any material showing sexual conduct, sexual excitement or sadomasochistic abuse. The legislature expressly has provided that the provision of such materials sometimes is lawful and sometimes is not, depending on who provides *171 the material and in what circumstances. Thus, if a parent, a guardian, a museum, a public library, or — in appropriate circumstances — a retailer provides the material, there is no crime. See ORS 167.085. By the terms of the statute, therefore, the harm flows not from the intrinsic nature of the material itself, but from some combination of the material, the identity of the person providing it, and the particular circumstances in which the material is provided. If that is the case, logically it cannot be said that harm necessarily flows from distribution of the materials listed in ORS 167.065(l)(a), and, under the analysis prescribed by Stoneman , the statute cannot be said to focus on the effects of speech. Thus, even under the majority’s analytical framework, it is necessary to determine whether a historical exception applies.

II. THE ROBERTSON HISTORICAL EXCEPTION ANALYSIS: METHODOLOGY

Historical exception analysis under Article I, section 8, was first required by Robertson , in which the Supreme Court explained:

“Article I, section 8, * * * forbids lawmakers to pass any law ‘restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever,’ beyond providing a remedy for any person injured by the ‘abuse’ of this right. This forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are peijury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.”

Robertson, 293 Or at 412 (emphasis added; footnote omitted). The analysis thus requires us to answer three questions: (1) Was there a restriction on speech that was well established during the relevant historical period? (2) If so, was Article I, section 8, intended to eliminate that restriction? And (3) if not, does the challenged statute fall “wholly within” that historical exception? See Moser v. Frohnmayer, 315 Or *172 372, 376 , 845 P2d 1284 (1993) (describingRobertsons historical exception analysis in several steps).

Robertson did not provide much in the way of explanation of or rationale for its historical exception analysis. In particular, the court did not explain what it meant by a “well-established” historical exception and what legal principle enables us to distinguish between a merely “established” historical exception as opposed to a ‘WZZ-established” one. Nor did the court provide any explanation as to how it arrived at its pronouncement, in dictum, that perjury, solicitation, verbal assistance in crime, and other restraints constitute historical exceptions to the protective reach of Article I, section 8. Indeed, the court did not explain whence it derived the historical exception analysis, whether it is a function of the language of the constitution or the intentions of its framers or some other interpretive possibility. In subsequent cases, however, there are clues to be found to flesh out at least some of the unanswered questions left in the wake of Robertson’s ipsedixitism.

To begin with, there is the question of what time period is the appropriate focus of the historical exception analysis. Robertson mentions the time “when the first American guarantees of freedom of expression were adopted,” referring to the 1790s. In the next phrase, however, it states that we are to determine whether those guarantees “then or in 1859” were intended to reach historically excepted crimes. I must confess that I do not know why the intentions of the framers of the federal constitution are pertinent to the interpretation of Article I, section 8, of the Oregon Constitution. Perhaps sensing that anomaly, the court more recently has stated that the proper focus is more generally “whether the [challenged] restriction was well established when the early American guarantees of freedom of expression were adopted, i.e., by the late eighteenth and mid-nineteenth centuries.” Henry, 302 Or at 515 . 3

*173 Second, there is the question of what sort of historical evidence is appropriately consulted to determine the extent to which a restriction falls within a historical exception. Robertson did not say. But other cases make clear that, at the very least, it is necessary to examine the case law and statutes of other states during the relevant period and the case law and territorial statutes in Oregon at the time of statehood. In State v. Moyle, 299 Or 691 , 705 P2d 740 (1985), for example, the court addressed the constitutionality of a telephone harassment statute. The court examined an eighteenth-century English statute, contemporaneous English cases, and Blackstone’s Commentaries on the Laws of England. Id. at 696. The court also surveyed the statutes of American states in effect as of 1859 and paid particular attention to whether Oregon’s territorial statutes contained any provisions relevant to the modem one under challenge. Id. Similarly, in Henry , perhaps the most extensive of the court’s historical exception analyses, the court examined English statutes and common-law decisions, the statutes and cases of the American states in existence at the time, and, in particular, Oregon’s territorial statutes. Henry, 302 Or at 515-23 . 4

Third, there is the question of what the court means by “well established.” The meaning of the term is not exactly self-evident. And the Supreme Court has never offered an explanation of its intended definition. I do not take the term to be without meaningful content, however. Cf., William R. Long, Requiem For Robertson: The Life and Death of a Free-Speech Framework in Oregon, 34 Will L Rev 101,135 (1998) (a “well-established” historical exception “means whatever the court perceives it to mean” in each case). In particular, I *174 do not understand the term to require that a historical exception has been in existence a certain minimum number of centuries or has been adopted by a certain minimum number of states or been reflected in a certain minimum number of reported cases.

I suggest instead that what constitutes a “well established” exception must be defined in terms of the object of the historical exception analysis. As I understand it, the object of the Robertson historical exception analysis is to ascertain the intentions of the framers of the Oregon Constitution. See Robertson, 293 Or at 412 (characterizing the ultimate objective of historical exception analysis as determining whether the guarantees of freedom of expression “demonstrably were not intended to reach” previously well-established forms of state regulation (emphasis added)); see also Henry, 302 Or at 521 (emphasizing the importance of demonstrating “that the guarantees of freedom of expression were not intended to replace the earlier restrictions” (emphasis added)). Unfortunately, the framers left little in the way of a historical record of what they intended by enacting the free speech protections described in Article I, section 8. In the absence of such evidence, we are forced to rely on more general evidence of the law that existed at the time. There are always risks associated with inferring from that general historical record any specific intentions of the Oregon framers. To minimize those risks, the Supreme Court apparently desires that an asserted historical exception be “well established” in the law of the relevant period before drawing any inferences from the historical record as to the intentions of the Oregon framers.

In Moyle , for example, the court examined the historical record pertaining to the regulation of harassment both in England and in early nineteenth-century America to determine whether such regulation constituted a historical exception. The court noted that, although the English Waltham Black Act of 1723, made it a capital offense to, among other things, send unsigned or fictitiously signed letters threatening to commit a crime, that statute was repealed in 1823. Moyle, 299 Or at 696 . Moreover, the court noted, although by 1859 seven American states had statutes in effect prohibiting nonextortionate written threats to commit *175 various felonies, Oregon did not. Oregon did have a territorial statute that prohibited sending or delivering threatening letters, but the statute was replaced in 1853 with a statute that prohibited only extortionate threats. “Thus,” the court held, “when the Oregon Constitution was adopted in 1859, Oregon had no statute prohibiting non-extortionate written threats.” Id. Thus, in Moyle , the court’s focus was on the quality of the historical record as a basis for drawing inferences about the intentions of the framers of the Oregon Constitution. It did not examine the record to determine the extent to which the proposed historical exception had been “on the books” for an arbitrary minimum period of time or had been in existence for a requisite number of centuries.

Finally, there is the question of what sort of “restraint” may constitute a historical exception. Robertson listed several possibilities as examples: “perjury, solicitation or verbal assistance in crime, some forms of theft, forgery, and fraud and their contemporary variants.” 293 Or at 412 .1 understand the list to be indicative and not exhaustive. After all, Robertson itself characterized the list as “[e]xamples” only. Id. Subsequent decisions in which the Supreme Court has examined restraints not included in the list enumerated in Robertson bear out the point. See, e.g., Moser, 315 Or at 376-78 (telemarketing solicitation); Henry, 302 Or at 515-23 (obscenity); Moyle, 299 Or at 696 (harassment).

Moreover, I do not take the list itself to suggest any limitations on the nature of the restraints that may constitute historical exceptions to the reach of Article I, section 8.1 have seen it suggested, for example, that only crimes— indeed, only “conventional” crimes — may constitute a historical exception to the protections of Article I, section 8. Nothing in Robertson says that, however. 5 We addressed that very point in Smallwood v. Fisk, 146 Or App 695 , 934 P2d 557 (1997). In that case, we upheld an award of punitive damages *176 for fraud in a civil case against an Article I, section 8, challenge. We reasoned that Article I, section 8, did not prohibit an award of punitive damages for fraud because there existed a well-established historical exception — shown by 1855 and 1864 Oregon statutes on the subject — permitting an award of punitive damages for fraud. In response to the argument that the historical exception analysis does not apply to civil fraud, we explained:

“It conceptually makes no sense to say that certain speech was intended by the founders to be exempt from Article I, section 8, for criminal purposes but not for others. It is tantamount to saying that the founders intended to allow people to be jailed for their fraud but not to be fined for the same conduct.”

Id. at 702 . We also noted that the Supreme Court likewise has commented that “ ‘[t]he nature of the prohibition, either civil or criminal, is immaterial’ to the prohibition against restrictions on free speech.” Id. (quoting City of Hillsboro v. Purcell, 306 Or 547, 553 , 761 P2d 510 (1988)).

In short, then, the historical exception analysis requires courts to determine whether there existed a regulation of speech during the period from the late eighteenth to the mid-nineteenth centuries that was sufficiently well established to allow us to infer that the framers of the Oregon Constitution would have been aware of it, whether there is any evidence that the framers intended Article I, section 8, to abrogate it, and whether the modern statute — in this case ORS 167.065(l)(a) — is wholly contained within that “historical exception.”

III. THE ROBERTSON HISTORICAL EXCEPTION ANALYSIS: APPLICATION

A. The Existence of a “Well-Established” Historical Exception

With the foregoing principles in mind, I turn to the historical record concerning government regulation of the distribution of obscene materials to children. I begin with the observation that governmental regulation of speech is a centuries-old phenomenon, particularly when the prohibited speech is deemed dangerous to the morals of children. To be *177 sure, for as long as there has been such regulation, its wisdom has been debated. But the authority of government to impose it has been unquestioned until the early years of this century. See generally Charles Rembar, The End of Obscenity, 11 (1968) (“Censorship is old, as old as history. * * * Until recently there was no contest: almost nothing that seriously offended certain prevailing concepts of morality and decency was allowed to be published.”).

1. Regulation of obscenity in England.

The regulation of speech dates back at least to the ancient Greeks. See Martha Alshuler, Origins of the Law of Obscenity, in 2 Technical Report of the Commission on Obscenity and Pornography 65 (1971) (censorship of literary publications dates at least to Greek and Roman times). Plato suggested that poets should be banished from his ideal republic because they taught false ideas that would corrupt the morals of youth. Plato, Republic II, in 1 Dialogues of Plato, 641 (B. Jowett trans., 1937) (“the first thing will be to establish a censorship of the writers of fiction, and let the censors receive any tale of fiction which is good, and reject the bad; and we will desire mothers and nurses to tell their children the authorized ones only”). Indeed, Socrates was killed not merely for his atheism but because he was “a doer of evil, who corrupts the youth” with his teachings. Plato, Apology, in 1 Dialogues of Plato, 407 (B. Jowett trans., 1937).

The roots of the modern regulation of obscenity, however, lay in the more recent history of English and American law. With the introduction of printing to England in the fifteenth century came royal censorship through a licensing system operated by the Star Chamber and the Stationers Company. See generally, W.S. Holdsworth, Press Control and Copyright in the 16th and 17th Centuries, 29 Yale LJ 841 (1921). The early focus of the censors was sedition and heresy, not obscenity, not because the crown lacked the authority to impose such restrictions, but because it was regarded as the domain of ecclesiastical courts. But with the rise of Puritanism in the late sixteenth century came increased attention to the regulation of bawdy books and plays; censorship was no longer limited to works of seditious or heretical *178 nature. Especially during the Commonwealth period, censorship of all sorts was particularly rigorous. See generally Alshuler, Origins of the Law of Obscenity at 66.

With the Restoration in 1660 came a reaction to repressive Puritanism. Religious energies flagged, and a more secularized — if not licentious — world view became increasingly predominant. 3 Oxford History of Britain, 138-42 (Kenneth O. Morgan ed., 1992); Norman St. JohnStevas, Obscenity and the Law, 15 (1956). Censorship of books returned to its original, more limited purposes. It was in that context that what is commonly regarded as the first reported judicial decision on obscenity arose.

In 1663, Sir Charles Sedley, an “intimate of King Charles II ‘as famous for his wit as he was for the profligacy of his life,’ ” Leo M. Alpert, Judicial Censorship of Obscene Literature, 52 Harv L Rev 40, 41 (quoting 8 Cambridge History of English Literature, 158 (1912)), engaged in a drinking spree at “The Cock,” a local tavern. He and two companions became drunk, stripped off their clothes, climbed a balcony overlooking Covent Garden and hurled both profanities and bottles filled with an “offensive liquor,” — that is, urine — at the public below. A minor riot ensued, ultimately resulting in the arrest and prosecution of Sedley:

“He was fined 2000 mark, committed without bail for a week, and bound to his good behavior for a year, on his confession of information against him, for shewing himself naked on a balcony, and throwing down bottles (pist in) vi & armis among the people in Covent Garden, contra pacem and to the scandal of the Government.”

Le Roy v. Sr. Charles Sedley, 83 Eng Rep 1146 (1663). 6

Meanwhile, the sixteenth-century legislation requiring the licensing of publications expired in 1695. Parliament declined to reauthorize the legislation, mainly because the large number of printers, the spread of literacy, and the increasing public demand for literature made the enforcement of the law impossible. With the loosening of publication controls, writers saw the publication of obscenity as a means *179 of making a quick pound. Religious leaders and members of the upper classes became concerned about the possible adverse effects on public morality. Thus was the stage set for further control of obscenity by the courts. See Alschuler, Origins of the Law of Obscenity at 67.

At first — and notwithstanding Sedley — the courts were reluctant. In 1708, in Queen v. Read, 88 Eng Rep 953 (1708), the author of The Fifteen Plagues of a Maidenhead was charged with obscenity. The court held that, if the publication of the book was punishable, it was in the “Spiritual Court,” that is, in the ecclesiastical courts. Not long after, however, in Rex v. Curl, 93 Eng Rep 849 (1727), the court overruled Read and, citing Sedley as precedent, held that the author of Venus in the Cloister or the Nun in Her Smock was subject to indictment for a common-law crime of obscenity. The court reasoned that, although obscenity traditionally was thought to be an offense against religion, morality and religion were legitimate subjects of concern at common law: “Now morality is a fundamental part of religion and therefore whatever strikes against that, must for the same reason be an offence against the common law.” Id.; see also 4 Blackstone’s Commentaries on the Law of England, 64 (Wendell ed 1859) (“lewdness” and “public indecency” are indictable offenses at common law to protect public morality).

A handful of other obscenity cases have been reported in the late eighteenth and early nineteenth centuries. Most held that obscenity is indeed an indictable offense at common law, but because it was regarded as antireligious. E.g., King v. Gallard, 25 Eng Rep 547 (1733) (upholding prosecution for “running in the common way, naked down to the waist, the defendant being a woman”); Rex v. Wilkes, 98 Eng Rep 327 (1770) (upholding prosecution for obscenity and “impious libel” for publication of erotic poetry). Such was not always the case, however. In Rex v. Crunden, 170 Eng Rep 1091 (1809), for example, the court upheld a prosecution for bathing nude in the sight of homes, without reference to whether the practice was an offense against religion. 7

*180 By the beginning of the nineteenth century, the crime of obscenity had become firmly established. See generally Frederick F. Schauer, The Law of Obscenity, 6 (1976) (“[B]y the beginning of the 19th century, however, the common-law crime of obscene libel had matured and was used against works which were purely sexual in content, without the necessity of political or religious implications.”). In the first half of the nineteenth century, there were approximately 160 obscenity prosecutions in England, not an insubstantial figure. St. John-Stevas, Obscenity and the Law at 66. During that period, Parliament also entered the fray. In 1824, it enacted the Vagrancy Act, 5 Geo 4, c. 83, which forbade displaying an obscene book or print in a public place. In 1853, came the Customs Consolidation Act, 16 & 17 Viet, c. 107, which banned the importation of “[i]ndecent or obscene prints, paintings, books, cards, lithographic or other engravings, or any other indecent or obscene articles.” And in 1857, Parliament passed the landmark Campbell Act, 20 & 21 Viet, c. 83 (1857). The act did not create a new offense, but rather authorized the destruction of obscene books and prints and empowered magistrates to issue warrants to search premises suspected of holding such materials for sale. Interestingly, Lord Campbell’s principal justification for the enactment was not the antireligious nature of obscenity, but its potential to “corrupt[ ] the morals of youth.” Alpert, Censorship of Obscene Literature, 52 Harv L Rev at 51 n 29 (citing 146 Hansard Parliamentary Debates, 327 (1857)).

2. Regulation of obscenity in America.

In early colonial America, the regulation of obscenity did not generate much interest. That is perhaps not surprising. Early colonists lived hard lives characterized by much physical labor and little leisure time, and had little access to nonbiblical literary works of any sort, much less those that would arouse controversy. That is not to say that early colonial America was an Eden of free expression. In Puritan Massachusetts, in particular, speech was heavily regulated. The colony established a general censorship system that, among other things, permitted only one person to have a printing press in the entire city of Boston. Punishment was severe; until 1697 blasphemy was a capital offense, and after that could be punished by boring the blasphemer’s tongue with a *181 hot iron. Thomas G. Barnes ed., The Book of the General Lawes and Libertyes Concerning the Inhabitants of the Massachusets, 5 (1648).

As the colonists became more prosperous, they acquired both the time and the means to acquire leisure goods from England. This was, it should be recalled, dining the time that England produced Sir Charles Sedley and the Fifteen Plagues of a Maidenhead. Massachusetts reacted with the enactment of the first American obscenity statute in 1711:

“Whereas evil communications, wicked, profane, impure, filthy and obscene songs, composures, writings or prints do corrupt the mind, and are incentives to all manner of impieties and debaucheries, more especially digested, composed or uttered in imitation or in mimicking of preaching, or any other part of divine worship, every person or persons offending in any of the particulars aforementioned shall be punished by fine to Her Majesty not exceeding twenty pounds or by standing on the pillory once or oftener, with an inscription of his crime in capital letters affixed over his head, according to the discretion of the justice in quarter sessions.”

Ancient Charter, Colony Laws and Province Laws of Massachusetts Bay (1814), cited in Alschuler, Origins of the Law of Obscenity at 74. Interestingly, that statute predated England’s Curl decision by more than a decade. See Alschuler, Origins of the Law of Obscenity at 75 (“Massachusetts had by statute made obscenity a crime 16 years before England found it an offense at common law, and the Massachusetts offense was more separate from religion than the English offense created in 1727.”).

Other colonies did not follow suit. They did enact statutes regulating profanity or blasphemy, but not obscenity. The reasons for, and the significance of, the failure of other prerevolutionary colonies to enact statutes criminalizing obscenity have been debated. Some have suggested that the colonists thought that the English common law, which by 1727 had recognized the offense of obscene libel, sufficed. Others have suggested that the colonists thought that the regulation of obscenity was a matter of religious, not secular governmental, concern. See generally Morris L. Ernst & Alan *182 U. Schwartz, Censorship: The Search for the Obscene, 9-10 (1968); Alschuler, Origins of the Law of Obscenity at 75.

But the fact that colonists chose not to regulate obscenity does not mean that they thought the matter beyond the authority of the state to regulate. That much is made certain by the fact that, during the critical period of the first half of the nineteenth century, the states exercised that authority to such an extent that by the middle of the century “the production and distribution of obscene materials was a crime throughout much of the United States.” United States Department of Justice, Attorney General’s Commission on Pornography, 1 Final Report, 243 (1986); see also Daniel Barnhart, The Oregon Bill of Rights and Obscenity: How Jurisprudence Confounded Constitutional History, Comment, 70 Or L Rev 907, 938-39 (1991) (“By 1860, most of the 33 states had enacted statutes restricting the publication or distribution of obscenity.”).

Precisely what precipitated this legislation is not certain, but the prevailing view seems to be that it coincided with the creation of public schools and a concern for the proper education of children. As one leading authority explains:

“[T]he new interest in legal control of obscenity coincided with a steady increase in literacy. The first public high school in the United States opened in 1820. There was as yet no compulsory education, but the move for free universal education was gaining steady support. State anti-obscenity statutes typically emphasized a purpose of protecting youth.”

Alschuler, Origins of the Law of Obscenity at 76. Lawrence Friedman offers a similar explanation of the new nineteenth-century interest in the regulation of obscenity and vice:

“This was another reason why vice laws needed to be passed, even if such laws were hard to enforce. Illegal vice would have to hide its face, and young folks would be less likely to come within its orbit of corruption. Obscenity laws, for example, were aimed at words and pictures that might ‘corrupt’ the ‘morals of youth.’ ”

Lawrence M. Friedman, Crime and Punishment in American History, 131 (1993); see also Morris L. Ernst & Alan U. *183 Schwartz, The Search for the Obscene at 18-19 (“By this time [the early nineteenth century] the agitation for universal, free, compulsory elementary education was making great strides, and the fear of literacy was obviously linked to the legal moves against obscenity.”).

The concern for the protection of youth from the potential ravages of obscenity already had found expression in judicial opinions recognizing the crime of obscene libel at common law. The Pennsylvania Supreme Court’s decision in Commonwealth v. Sharpless, 2 Serg & Rawle 91 (Pa 1815), is perhaps the best-known example. In that case, the defendant was indicted for exhibiting a painting that depicted “a man in obscene, impudent and indecent posture with a woman.” The defendant argued that privately showing the picture was not an indictable offense, particularly because he had shown the picture in a private room. The court upheld the indictment. Writing in the seriatim format of the day, the Chief Judge explained that merely because the defendant showed the painting in a private room did not save him from prosecution:

“The law is not to be evaded by an artifice of that kind; if the privacy of the room was a protection, all the youth of the city might be corrupted, by taking them, one by one, into a chamber, and then inflaming their passions by the exhibition of lascivious pictures.”

Id. at 102. In a separate opinion, Justice Yeates further explained that:

“The corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences, and in such instances, courts of justice are, or ought to be, the schools of morals.”

Id. at 103 (emphasis added). In each case, the focus of concern was the protection of children from the effects of exposure to the obscene material.

The Massachusetts Supreme Court’s 1821 decision in Commonwealth v. Holmes, 17 Mass 336 (1821), supplies another example. In that case, the court upheld the conviction of the publisher of Memoirs of a Woman of Pleasure for *184 publishing a “lewd and obscene print” that was contained in the book. According to the indictment, the publisher was guilty of being

“a scandalous and evil-disposed person, and contriving, devising and intending the morals as well of youth as of other good citizens of said commonwealth to debauch and corrupt and to raise and create in their minds inordinate and lustful desires.”

Id. at 336 .

The concern for the morals of children frequently was stated explicitly in early nineteenth-century obscenity statutes. The 1835 Massachusetts obscenity law is typical. It provided:

“If any person shall import, print, publish, sell or distribute any book, or any pamphlet, ballad, printed paper, or other thing, containing obscene language, or obscene prints, pictures, figures, or descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school, or place of education, or shall buy, procure, receive or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of sale, exhibition, loan, or circulation, or with intent to introduce the same into any family, school or place of education, he shall be punished by imprisonment in the county jail, not more than two years, and a fine not exceeding one thousand dollars.”

Mass Rev Stat, ch 130, § 10 (1836) (emphasis added). The State of Michigan enacted a similar statute in 1846, prohibiting the distribution of obscene materials “tending to the corruption of the morals of youth.” Mich Rev Stat, Title XXX, ch 158, § 13 (1846). So also did the State of Virginia, Va Stat, ch 196, § 11 (1849) (prohibiting the distribution of obscene materials “manifestly tending to corrupt the morals of youth”); the State of Wisconsin, Wis Rev Stat, ch 139, § 11 (1849) (prohibiting distribution of obscene material “manifestly tending to the corruption of the morals of youth”); the State of Iowa, Iowa Code, Title 23d, ch 145, § 2717 (1851) (prohibiting distribution of obscene material “manifestly tending to corrupt the morals of youth”); the State of Maine, Main Rev Stat, ch 124, § 13 (1857) (prohibiting distribution of obscene materials “manifestly tending to corrupt the morals of youth”); the *185 State of Rhode Island, RI Stat, Title XXX, ch 216, § 12 (1857) (prohibiting the distribution of obscene materials “manifestly tending to the corruption of the morals of youth”); the State of Tennessee, Tenn Code, Art II, § 4847 (1858) (prohibiting distribution of obscene materials “into any family, school or place of education”); the State of Minnesota, Minn Pub Stat, ch 96, § 11 (1859) (prohibiting the distribution of obscene materials “manifestly tending to the corruption of the morals of youth”); and the State of Texas, Tex Penal Code, § 399 (1859) (prohibiting the publication of obscene materials “manifestly designed to corrupt the morals of youth”).

Other states enacted even broader obscenity statutes, not limited to the protection of the morals of youth. In 1821, for example the State of Vermont made it a crime punishable by a $200 fine to “print, publish, or vend any lewd or obscene book or print.” Vt Laws of 1821, § 23. The State of Connecticut similarly outlawed the importation, printing, publication, sale or distribution of “any book, pamphlet, ballad or other printed paper, containing obscene language, prints or descriptions.” Conn Stat, Title 21, § 82 (1835). New Hampshire enacted a statute providing that no person may “sing or repeat, or cause to be sung or repeated any lewd, obscene or profane song, or shall repeat any lewd, obscene or profane word, or write or mark in any manner any obscene or profane word, or obscene or lascivious figure” on public buildings, fences, walls and the like. NH Rev Stat, ch 113, § 2 (1843). Illinois prohibited the importation or sale of “any obscene book, pamphlet or print.” Ill Rev Stat, ch 30, § 128 (1845). Indiana likewise made punishable by a $500 fine the sale, exhibition or circulation of “any obscene book, pamphlet or picture” and added to the punishment a period of up to three months in jail “if the exhibition be made to a female.” Ind Rev Stat, ch 8, § 52 (1852). Arkansas prohibited any person from making “any obscene exhibition of his person” or “exhibiting any obscene or indecent pictures, or figures.” Stat Ark, ch 51, Art VII, §§ 1, 2 (1856). California prohibited any person from publishing, selling, or exhibiting “any lewd or obscene book, pamphlet, picture, print card, paper or writing.” Cal Laws, ch 271, § 1 (1859).

The federal government, too, enacted legislation directed at limiting the distribution of obscene materials. In *186 1842, Congress enacted a law prohibiting the importation of “all indecent and obscene prints, paintings, lithographs, engravings and transparencies,” 5 Stat 566 (1842), generally assumed to have been directed at the “French postcard trade” in depictions of nude women. Schauer, The Law of Obscenity at 10; Alschuler, Origins of the Law of Obscenity at 77. Congress amended the law in 1857 to include indecent and obscene articles and other printed materials. 11 Stat 168 (1857).

Thus, in the first half of the nineteenth century, both the states and Congress openly assumed their authority to regulate obscenity. See Lawrence M. Friedman, Crime and Punishment in American History at 350 (“In the nineteenth century, it was taken for granted that states and cities could put pornography under the ban and punish people who made it or sold it.”). I have searched the reported cases in vain for a single decision in which the authority of the federal, state, or local governments to regulate obscenity was not upheld. Indeed, it is difficult to find a decision in which such authority was challenged at all, much less on constitutional grounds. In one 1838 case, a defendant to a Massachusetts obscenity prosecution suggested that the state lacked authority to regulate obscene libel and blasphemy. The court’s response is revealing:

“It seems now to be somewhat late to call in question the constitutionality of a law, which has been enacted more than half a century, which has been repeatedly enforced, and the validity of which, it is believed, until this prosecution, has never been doubted, though there have been many prosecutions and convictions under it.”

Commonwealth v. Kneeland, 37 Mass 206, 217 (1838).

Oregon’s pioneers apparently shared those convictions. In 1853, following the famed battle of the Iowa “blue books,” the Territorial Legislature authorized the drafting of a new, “full and complete” territorial code. The drafting responsibilities fell to a commission headed by James K. Kelly. The common practice in western territories was to borrow from existing statutes in other states. See generally Lawrence M. Friedman, A History of American Law, 139 (1973) (observing that “many territorial statutes were the *187 product of scissors and paste”). Kelly’s Commission followed that tradition, drawing heavily from the revised statutes of New York, enacted in 1829, 1836, 1848, and 1852. Interestingly, New York was one of the few states before the Civil War that had not yet enacted an obscenity statute. 8 The Kelly Commission nevertheless adopted an obscenity provision, borrowing from the Iowa Code instead, altering only some punctuation and lowering the penalty:

“If any person shall import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of loan, sale, exhibition or circulation, or with the intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six nor less than three months, or by a fine not more than three hundred, nor less than fifty dollars.”

Or Stat, ch 11, § 10 (1853).

At least two things bear emphasis with respect to the 1853 territorial statute. First, the obscenity provision did not slip in accidentally in the process of incorporating other provisions of the statutes of other jurisdictions. It is plain that the Kelly Commission and the Territorial Legislature made a conscious decision to enact an obscenity statute and to join the majority of other states that had done so to date. Second, the particular statute that it enacted was borrowed from those with a narrower focus on protecting the morals of children. That, too, cannot have been accidental. Other models existed that more broadly condemned obscenity generally. Oregon’s territorial statute prohibited the distribution of obscene materials “manifestly tending to the corruption of youth.”

*188 To be sure, neither Oregon’s nor any other state’s obscenity statute defined the term “obscene.” The courts of the day expressed concern — with a quaintness that is perhaps odd to modern sensibilities — for “the chastity of our records.” Sharpless, 2 Serg & Rawle at 103; see also State v. Appling, 25 Mo 315, 317 (1857) (“Our respect for the chastity of the records of our court will not suffer the outrageously vulgar words that were spoken and sung by the defendant in this case.”); State v. Brown, 27 Vt 619, 619 (1855) (“if the publication be of so gross a character that spreading it upon the record will be an offence against decency, it may be excused”); People v. Girardin, 1 Mich 90, 91 (1848) (“Courts will never allow its records to be polluted by bawdy and obscene matters.”). But the nature of the obscenity that was at issue in these cases cannot be mistaken: It was invariably nudity and depictions of sex.

In Sharpless, for example, the defendant was charged with showing a painting of “a man in obscene, impudent and indecent posture with a woman.” 2 Serg & Rawle at 91-2. The court expressed concern that the painting would arouse lustful feelings. There can be no doubt about what the man and the woman in the picture were doing. Similarly, in Barker v. Commonwealth, 19 Pa 412, 413 (1852), the defendant was indicted for publicly describing “men and women in obscene and indecent positions * * * with intention ‘to debauch, debase and corrupt the morals of youth.’” Obviously, what the defendant had been describing was sex. In Bell v. State, 31 Tenn (1 Swan) 42 (1851), the defendant was convicted of “the utterance of certain grossly obscene words, in public.” The “grossly obscene” utterance was that the defendant had described “acts of criminal intercourse” with the daughters of a local citizen. Id. at 43. In Commonwealth v. Tarbox, 55 Mass (1 Cush) 66, 67 (1848), the defendant was charged with the publication of obscene materials, which included an advertisement for an “instrument for * * * the prevention of conception.”

Indeed, numerous cases demonstrate prosecutions for obscene behavior based on public nudity alone. In State v. Roper, 18 NC 208 (1835), for example, the defendant was charged with indecent exposure. The court held that “[a] public exposure of the naked person is among the most offensive of those outrages on decency and public morality.” Id. at 209. *189 Similarly, in Britain v. State, 22 Tenn (3 Humph) 203, 204 (1842), the defendant was convicted of “lewdness” for “permitting his slaves to go about the country in a state of nakedness.” See also State v. Hazle, 20 Ark 156 (1859) (public nudity); Miller v. People, 5 Barb 203 (NY Sup Ct 1849) (public nudity); McJunkin v. State, 10 Ind 140, 145 (1858) (although “public indecency” is a vague term, it certainly includes “public displays of the naked person, the publication, sale or exhibition of obscene books and prints * * * acts which have a direct bearing on public morals, and affect the body of society”).

In my view, the foregoing historical materials leave no room for doubt that, by 1859, it was “well established” that distributing obscene materials to children was not constitutionally protected speech, that, to the contrary, imposing criminal penalties for such conduct was widely assumed to be — indeed, adjudicated to be — the legitimate prerogative of the state and federal governments. At English common law, obscene libel had been a crime for nearly two centuries and had been the subject of parliamentary prohibition. In America, where the states absorbed the English common law into the fabric of their distinct legal traditions, the courts followed suit, emphasizing the importance of protecting the morals of children. The legislative assemblies of the states did likewise, enacting numerous statutes criminalizing the distribution of obscene materials tending to corrupt the morals of youth.

It has been noted that, although there existed a substantial body of law authorizing the punishment of the distribution of obscene materials, those laws frequently were not enforced. See, e.g., Frederick F. Schauer, The Law of Obscenity at 10 (“The years prior to the Civil War witnessed a proliferation of obscenity and lewdness statutes, but there were still few prosecutions.”). In fact, the historical record shows that, in the period from the late eighteenth to the mid-nineteenth centuries, quite a bit of literature that would have been considered bawdy, lewd, or obscene was in wide circulation. 9 But all that is beside the point for at least two *190 reasons. First, the fact that early nineteenth-century adult settlers easily could get their hands on a copy of Tom Jones says nothing about pioneer concerns for the morals of children, particularly with the advent of compulsory public education in the early nineteenth century. Second, as in the case of the infrequent enforcement of colonial censorship laws, the fact that nineteenth-century obscene libel laws were not vigorously enforced establishes nothing about the authority of the states to enforce them. It is clear to me that, based on the case law that existed as of 1859 and the legislation that had been enacted to that date that no one seriously questioned the authority of the states in that regard.

B. Whether Article I, Section 8, Was Intended to Eliminate the Regulation of Distributing Obscene Materials to Children

Nothing in the language of Article I, section 8, or its history suggests that it was intended to abrogate the established authority of the state to punish the distribution of obscene materials to children. The constitution provides:

“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.”

To be sure, the opening clause of Article I, section 8, is absolute: “No law shall be passed * * But the balance of the section cannot be ignored. It provides that, notwithstanding *191 the absolute prohibition of the first clause, “every person shall be responsible for the abuse of this right.” Apparently, the framers of the Oregon Constitution wanted to leave room for the state to regulate the “abuse” of the right of free speech. 10 The question, of course, is whether the framers intended the absolute prohibition of the first clause of Article I, section 8, to eliminate any room for the state to regulate the distribution of obscene materials to children or whether they understood that such regulation fell within the legitimate regulation of the abuse of free speech rights.

I can find no evidence that the framers of the Oregon Constitution intended to constrain the authority of the state to regulate the distribution of obscene materials to children. Nothing in the available records of the 1857 Constitutional Convention remotely suggests even the possibility that the framers intended the adoption of the Oregon Constitution to have that effect.

What I do find in the historical record is the fact that, shortly after the adoption of the constitution, the Oregon Legislature re-enacted the 1853 territorial obscenity statute as part of the state’s first criminal code. General Laws of Oregon, ch 48, § 637 ( Deady 1845 -64). What is more, the compiler of that code, Matthew P. Deady, was one of the principal drafters of the constitution and the President of the Constitutional Convention. The notion that the framers intended to preclude the state from regulating the distribution of obscene material to children is difficult to square with that historical fact.

Such a notion also is difficult to square with the development of free expression generally. No one seriously suggested that a state or federal government lacked the constitutional authority to regulate the distribution of obscene materials generally, much less to children, until the early twentieth century. See, generally, Bradley C. Bobertz, The Brandéis Gambit: The Making of America’s “First Freedom,” 1909-31, William & Mary L Rev 557, 559 (1999) (“At the end of the nineteenth century, the most remarkable aspect of our *192 ‘first freedom’ was that practically no one talked about it, wrote about it, or sued to enforce it * * *.”); G. Edward White, The First Amendment Comes of Age: The Emergence of Free Speech in Twentieth Century America, 95 Mich L Rev 299 (1996) (tracing origins of new conceptions of free speech in early twentieth century); David M. Rabban, The Free Speech League, the ACLU, and the Changing Conceptions of Free Speech in American History, 45 Stan L Rev 47 (1992) (tracing modern libertarian free speech theory to, among other things, a turn-of-the-century reaction to the Comstock Act). To the contrary, following the Civil War, the regulation of obscenity became even more intensive, as other states enacted obscenity laws, see, e.g., Maryland Code, Art 30, § 78 (1860) (prohibiting publication of “obscene or licentious matter”); 7 NY Stats 309 (1868) (prohibiting publication of “obscene” material); NJ Laws, ch 536, § 1 (1868) (prohibiting the distribution of “obscene” materials); 1872 Ohio Laws 174 -75 (prohibiting distribution of “any obscene, lewd and lascivious” materials); La Stat Ann § 2088 (1884) (prohibiting distribution of “indecent or obscene” materials “tending to debauch the morals”); SC Laws, No. 181, § 1 (1885) (prohibiting obscene matter “manifestly tending to the corruption of the morals of youth”), and as those who already had enacted them began to enforce them with Victorian vengeance, see, eg., State v. Doty, 103 Iowa 699 , 73 NW 352 (1897); People v. Kaufman, 12 NY Crim R 263, 14 App Div 305 , 43 NYS 1046 (1897); State v. Holedger, 15 Wash 443, 46 P 652 (1896); Commonwealth v. McCance, 164 Mass 162, 41 NE 133 (1895); Smith v. State; 24 Tex App 1, 5 SW 510 (1887); Larison v. State, 49 NJL 256, 9 A 700 (NJ Sup 1887); Thomas v. State, 103 Ind 419, 2 NE 808 (1885); O’Brien v. State, 37 Ohio St 113 (1881); Fuller v. People, 92 111 182 (1879); People v. Justices of Special Sessions, 17 NY Sup Ct 224 (1877). Oregon, in fact, was among the states that continued to enforce its obscenity statute. State v. Andrews, 35 Or 388 , 58 P 765 (1899), overruled on other grounds State v. McDonald, 231 Or 24 , 361 P2d 1001 (1961). 11

*193 Congress, too, stepped up its regulation of obscene materials in response to pressure from the public generally and from Anthony Comstock’s New York Society for the Suppression of Vice particularly. The resulting Comstock Act of 1873, 18 USC § 1461 , prohibited the sending of obscene material through the mail. See generally Schauer, The Law of Obscenity at 12-15.

Once again, the authority of the state and federal governments to engage in this concerted enforcement activity was taken for granted. There was a challenge to the authority of Congress to enact the Comstock Act. It was, however, given short shrift. In Ex Parte Jackson, 96 US 727 , 24 L Ed 877 (1877), the United States Supreme Court treated the argument thusly:

“All that Congress meant by this act was, that the mail should not be used to transport such corrupting publications and articles, and that any one who attempted to use it for that purpose should be punished. * * * The only question for our determination relates to the constitutionality of the act; and of that we have no doubt.”

Id. at 736-37 .

To suggest that Oregon’s framers understood that the effect of enacting Article I, section 8, was to extend constitutional protection to the distribution of obscene materials to children is to ascribe to them an anachronistic constitutional sensibility that simply cannot be sustained by the historical record. It is far more likely — indeed, it is the only plausible possibility — that Deady and the Oregon legislature knew exactly what they were doing in 1864 when they re-enacted the territorial obscenity statute. And what they were doing was enacting a statute that was entirely consistent with their understanding of Article I, section 8. Thus, I conclude that, based on the historical record concerning the period from the late eighteenth to the mid-nineteenth century, the regulation of the distribution of obscene materials to children was “well established” and that the framers of the Oregon Constitution did not understand that the power of the state to continue that regulation was abrogated by the adoption of Article I, section 8.

*194 C. Whether ORS 167.065(l)(a) is “Wholly Contained” in the Historical Exception

There remains the question whether the challenged statute is “wholly contained” within the historical exception. Within that broader question there also lurks a more narrow, but no less important one, concerning the impact of prior Supreme Court decisions regarding the extent to which there exists a historical exception for distributing obscene materials to children. The Supreme Court’s decisions in Henry and Stoneman , in particular, require careful analysis, for in those cases the court rejected the contention that there was a historical exception for obscenity generally. In a nutshell, I conclude that ORS 167.065(1) is wholly contained within the historical exception that I have described and that nothing in any of the reported decisions to date precludes that conclusion. In fact, I suggest that the very reasons that the court has rejected historical exception arguments in other cases demonstrate why it is appropriate to recognize one in this case.

The 1853 territorial statute provided:

“If any person shall import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of sale, exhibition or circulation, or with the intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six nor less than three months, or by a fine not more than three hundred, nor less than fifty dollars.”

The focus of the statute is on the distribution of “obscene” materials to children. Indeed, the statute broadly prohibits introducing such materials to families, schools, or places of education if they “manifestly tend[ ] to the corruption of the morals of youth.”

*195 Like the territorial statute, the focus of ORS 167.065(l)(a) is the distribution of “obscene” materials to children. It is, if anything, narrower in focus than the territorial statute. Where the territorial statute broadly prohibited furnishing any “obscene” materials, ORS 167.065(l)(a) specifically defines “obscene” materials as depictions of “sadomasochistic abuse, sexual conduct or sexual excitement.” And where the territorial statute broadly prohibits introducing obscene materials to children under any circumstances — into “any family, school or place of education”— ORS 167.065(l)(a) expressly excepts furnishing such materials by parents or by educators for an educational purpose or by other individuals who display prohibited material as an incidental part of an otherwise nonoffending whole for a legitimate purpose other than titillation. ORS 167.085. Thus, what ORS 167.065(l)(a) prohibits is completely contained by the prohibition described in the territorial statute.

That ORS 167.065(l)(a) is wholly contained within the territorial statute is convenient to the analysis. But it is not necessary. A historical exception does not consist of a single statutory prototype, but of a well-established principle of law shown by, among other things, one or more statutes. Thus, in Robertson , the Supreme Court did not say that a particular fraud or perjury statute constituted a historical exception, but rather that “some forms” of fraud or perjury could constitute historical exceptions and that the legislature has “some leeway’ to extend the principles exemplified by such historical forms. According to Robertson , interpretation of Article I, section 8, “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 434 .

In this case, the “initial principle” that is illustrated by the 1853 territorial statute is the authority of the state to regulate the distribution of obscene material to children. Even assuming for the sake of the argument that ORS 167.065(l)(a) does not fit exactly within the language of the 1853 territorial statute, therefore, the modern statute nevertheless fits squarely and completely within the historical exception that it illustrates.

*196 The foregoing point is critical to a proper understanding of the precedential impact of the Supreme Court’s decisions in. Henry and Stoneman . In Henry , the state argued that the 1853 territorial statute constituted a historical exception for the regulation of obscenity generally. The court rejected the argument. The court began by observing that, by itself, a statute is not necessarily sufficient to establish a historical exception: “[T]he constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal restraints on one or another form of speech or writing.” Henry, 302 Or at 521 . The court emphasized that the regulation of speech must have been sufficiently well established that the court can safely conclude “that the guarantees of freedom of expression were not intended to replace the earlier restrictions.” Id. The court further observed that a review of late eighteenth and early nineteenth-century history showed little in the way of a well-established tradition of state regulation. The state’s burden, the court held, would be difficult, indeed.

The court then noted that the territorial statute, in any event, did not suffice, for two reasons. First, the court observed that the territorial statute contained no definition of “obscene.” Second, the court observed that the statute “was directed primarily to the protection of youth.” Id. at 522 . Indeed, more than once, the court emphasized that the fact that the territorial statute was enacted “only to protect the morals of youth in this state” led it to conclude that “no broad or all-encompassing historical exception from the guarantees of free expression was ever intended.” Id. at 523 .

The court’s decision in Henry thus was a narrow one. It rejected the state’s argument that there was a well-established historical exception for the regulation of obscenity generally. Whether the court was correct in that regard certainly is debatable, particularly in light of the foregoing historical record of early nineteenth-century regulation of obscenity, which the court simply did not acknowledge. But the correctness of Henry is beside the point. What is important is the fact that Henry in no way forecloses us from now recognizing a narrower historical exception for the regulation of the distribution of obscene materials to children, as opposed to recognizing a historical exception for the regulation of obscenity *197 generally. In Henry itself, the court cautioned that “[w]e do not hold that this form of expression [obscenity], like others, may not be regulated in the interests of unwilling viewers, captive audiences, minors and beleaguered neighbors. No such issue is before us .’’Henry, 302 Or at 525 .

That Henry was not intended to be read broadly to foreclose the regulation of the distribution of obscene materials to children is borne out by the Supreme Court’s decision in Stoneman . In that case, once again, the state argued that the 1853 territorial statute constituted a historical exception, this time for the regulation of child pornography, ORS 163.680 (1987). We had rejected the state’s argument for several reasons. We began, echoing Henry , by holding that the territorial statute, by itself, could not establish a historical exception. State v. Stoneman, 132 Or App 137, 146-47 , 888 P2d 39 (1994). In dictum we held that, in any event, even assuming that the statute represents a historical exception, the challenged child pornography statute was not wholly contained within it, for three reasons. First, we noted that the territorial statute prohibited the distribution of obscene materials to children, while ORS 163.680 (1987) prohibited the purchase and possession of such materials. Stoneman, 132 Or at 147. Second, we noted that the territorial statute “appears to have been directed solely at protecting youths from viewing obscene materials, not from being the subjects of such materials,” as ORS 163.680 (1987) prohibits. Id. (emphasis in original). Third, we noted that, because the territorial statute did not delineate the boundaries of what was considered “obscene,” it could not be determined whether the modern statue was wholly contained within the historical one. Id.

The Supreme Court agreed with our historical exception analysis:

“We agree with the Court of Appeals majority that, without more, that territorial statute did not sufficiently and clearly establish an historical exception within which the statute under review in the present case could be said ‘wholly’ to fall.”

Stoneman, 323 Or at 545 . The court did not go farther than that, however. As in Henry , the court limited its holding in *198 Stoneman; it did no more than reject the state’s argument that the territorial statute, by itself, constitutes a historical exception. In fact, the court noted that “[njothing in this opinion, however, should be construed to reflect on the continuing vitality of the implication in Henry that the protection of children may constitute an historical exception when assessing the scope of Article I, section 8 * * Id. at 543 n 7 (citation omitted).

Henry and Stoneman thus do not preclude us from concluding that, based not merely on the existence of the 1853 territorial statute, but on that and the historical context in which it was enacted, there is a historical exception for the protection of children from the distribution of obscene materials. Indeed, both Henry and Stoneman expressly contemplate that possibility. The courts simply have not been confronted with the issue to date. With this case, we now are.

One issue remains, however. Both in Henry and in Stoneman, the court expressed concern with the fact that, although the territorial statute prohibited the distribution of obscene materials to minors, it did not define what it meant by “obscene.” Henry, 302 Or at 522 ; Stoneman, 323 Or at 545 . The court observed that, without a historical definition of the term, it is difficult to determine the extent to which a modern statute falls wholly within a historical one prohibiting the distribution of “obscene” materials.

My response is in two parts. First, I note that the court did not say that the lack of a definition of obscenity was fatal to the historical exception argument. Otherwise, the court would not have gone on, at some length, to evaluate the other reasons for rejecting the statute in those cases and to caution that it did not consider foreclosed the argument that there might be a historical exception for protecting children from such materials.

Second, I note that, although the lack of a precise historical definition of “obscene” may render it “difficult” to determine in some cases whether a modern statute is wholly contained within a historical one, the fact remains it is not impossible to do so. It bears emphasis that Robertson does *199 not require that we ascertain the outer boundaries of a proposed historical exception, only that, whatever those boundaries may be, the modern statute under challenge falls wholly within it. In this case, the modem statute defines “obscene” fairly narrowly to include only materials depicting “sadomasochistic abuse, sexual conduct or sexual excitement.” ORS 167.065(l)(a). Thus, as long as it can be shown that prohibiting the distribution of materials depicting “sadomasochistic abuse, sexual conduct or sexual excitement” to children was considered the legitimate subject of state regulation of obscenity at the time of the adoption of Article I, section 8, what also may have been considered obscene is irrelevant. As I have shown, that is not a difficult task. The relevant nineteenth-century case law makes clear that, whatever else “obscenity” may have included, it certainly included depictions of nudity and sex.

I conclude therefore that there is no impediment to holding that ORS 167.065(l)(a) is wholly contained within a historical exception to Article I, section 8. The statute prohibits furnishing obscene material — depicting sadomasochistic abuse, sexual conduct, and sexual excitement — to children. Common law and early nineteenth-century statutes prohibited at least that, whatever else they may have prohibited.

D. The Lead Opinion’s Critique 12

Although the lead opinion regards my historical exception analysis as unnecessary, it indulges in a thorough and thoughtful critique, which warrants at least a few brief responses. Its first and principal objection to the merits of my historical exception analysis is that it is inconsistent with what the Supreme Court held in Henry . According to the lead opinion, Henry’s holding is a sweeping condemnation of the idea that there can be any historical exception related to the regulation of obscenity. It ignores what the court itself said in Henry about the scope of its holding, however. In particular, it declines to acknowledge the court’s caveat that “[w]e do not hold that this form of expression [obscenity], like others, may be regulated in the interests of unwilling viewers, captive *200 audiences, minors and beleaguered neighbors. No such issue is before us.” Henry, 302 Or at 525 (emphasis added). Moreover, it ignores the fact that, in Stoneman itself, the court reiterated that same caveat, namely, that nothing in its decision should be read to “reflect on the continuing vitality of the implication in Henry that the protection of children may constitute an historical exception when assessing the scope of Article I, section 8 * * Stoneman, 323 Or at 543 n 7. My opinion attempts to address the issue that the court in Henry and in Stoneman expressly said has not yet been addressed. The lead opinion simply is wrong in suggesting that Henry forecloses the historical exception analysis in which I engage. 13

The lead opinion next complains that, on the merits, my historical exception analysis merely rehashes the same historical record that the Supreme Court examined in Henry . There certainly is substantial overlap in the historical materials that I have cited, particularly those relating to the law before 1790; I make no pretense to having unearthed any startling new historical discoveries. 14 But the fact remains that, by its own terms, the Supreme Court limited its historical analysis both in time and scope. I have not merely rehashed the court’s analysis. I have examined some of the *201 historical evidence that the court mentioned in Henry — and a lot more — with a view to answering an entirely different question from the one that the court answered in that case.

The lead opinion then focuses its critical attention on my analysis of the question whether, by enacting Article I, section 8, the people intended to abrogate the established authority of the state to regulate the distribution of obscene materials to children. It complains that, by expressing the question in that fashion, I have impermissibly shifted the burden from the state to establish the constitutionality of ORS 167.065(l)(a). 168 Or App at 146. The point is academic, in my view. Regardless of who has the burden, the fact remains that there is evidence that the framers believed that the authority of the state to regulate the distribution of obscene materials to children survived the enactment of Article I, section 8, and there is no evidence to the contrary. 15

The lead opinion also complains that the evidence that I have cited, principally the reenactment of the territorial obscenity statute after the adoption of the constitution, is insufficient and that the sort of “statute counting exercise” in which I have engaged is not what is required in conducting proper historical exceptions analysis. 168 Or App at 142. Of course, the sort of “statute counting exercise” about which it complains is precisely what the Supreme Court does in its own cases. Moyle and Henry exemplify the point. Aside from that, I challenge the lead opinion to explain how it is that courts can answer questions as to the nature of nineteenth-century law without referring to nineteenth-century law.

Finally, and in a related vein, the lead opinion expresses concern that the sort of historical analysis in which I have engaged simply cannot be an appropriate way to determine the scope and meaning of Article I, section 8, because it *202 would “emblazon nineteenth-century thinking on twentieth-century challenges.” 168 Or App at 144-45.1 share those misgivings. After having engaged in this project of archeological jurisprudence, I, too, must confess to some lingering discomfort. Although my examination of the historical record leaves no doubt in my mind that the framers would have understood that the regulation of obscenity was a legitimate prerogative of state government, I am troubled by the underlying assumption that we should be constrained in our interpretation of the constitution by the understandings of its framers, that is, that we are bound by the understandings of framers who lived in a completely different historical milieu and possessed completely different ideas about the nature of government and its relation to its citizens. 16 It bears recalling in that regard that many of the framers of the constitution believed that individuals of color could be owned as property, that women could not participate in governmental affairs, that only individuals of wealth could exercise the franchise, and that segregation in education was appropriate. 17 More to the matter at hand, as Lawrence Friedman observed, “[w]hat passed for obscene or pornographic [in the nineteenth century] was a far cry from what would pass as such today. Works were banned that would not bring a blush to the cheek of the most delicate plant in our times.” Lawrence M. Friedman, Crime and Punishment in American History at 350. That such nineteenth-century literary sensibilities should govern constitutional rights in the twenty-first strikes me as odd, indeed.

Having said that, however, the exercise in which I have engaged clearly is required by Robertson and its progeny. And any concern that I or others may harbor as to the *203 propriety of the exercise must await the Supreme Court’s reexamination of its own case law. Perhaps this case will present an opportunity for the court to do just that. In the meantime, I am persuaded that what I have described is correct within the framework that the court has prescribed.

The effect of concluding that a statute wholly falls within a historical exception, as the Supreme Court held in Stoneman, is the removal of “any state constitutional bar to [the] statute that is directed at the content of speech.” Stone-man, 323 Or at 543 n 7. It is, in other words, unnecessary to engage in the overbreadth analysis that the lead opinion conducts. ORS 167.065(l)(a) falls entirely within a historical exception to the constraints of Article I, section 8. Therefore, at least as to that provision of the Oregon Constitution, the statute is entirely constitutional.

IV. OTHER ISSUES

Defendant argues that, even if the statute does not violate the state constitution, it does violate the First Amendment to the United States Constitution. According to defendant, the statute is unconstitutionally overbroad. The state first argues that defendant failed to raise that argument below and thus cannot raise it for the first time on appeal. I agree with the state.

At trial, defendant’s sole argument was that, as a consequence of our earlier decisions in Frink and House, ORS 167.065(l)(a) already had been declared unconstitutional in its entirety. I have examined the briefs and the oral argument below, and I can find no assertion that, apart from those two Court of Appeals decisions, there is a basis for concluding that the statute is unconstitutionally overbroad. I would not entertain such an argument now.

Even assuming that the argument has been preserved, it still is unavailing. Defendant’s federal constitutional argument consists of a quote from Erznoznik v. City of Jacksonville, 422 US 205 , 95 S Ct 2268 , 45 L Ed 2d 125 (1975). In that case, the United States Supreme Court struck down a statute that prohibited the showing at a drive-in theater of any movie containing nudity. The Court held that the statute swept too broadly because, among other things, it *204 was not limited to sexually explicit nudity. The case has no bearing on the constitutionality of ORS 167.065(l)(a). As this court already held, the effect of Frink and House was to sever the reference to “nudity” in the statute; it no longer prohibits providing pictures of mere nudity to children.

Closer to the mark is Ginsberg v. New York, 390 US 629 , 88 S Ct 1274 , 20 L Ed 2d 195 (1968). At issue in that case was the constitutionality of a New York criminal obscenity statute, that prohibited the sale to minors of depictions of “nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors.” The statute defined “harmful to minors” in a way that was broader than what would have been considered “obscene” for adult viewers. The defendant challenged the authority of the state to prohibit the sale of materials to minors that would not have been obscene to adults. The Court held that the state has an interest “ ‘to protect the welfare of its children,’ and to see that they are ‘safeguarded from abuses’ which might prevent their ‘growth into free and independent well-developed’ ” citizens. Id. at 640-41 (quoting Prince v. Massachusetts, 321 US 158, 165 , 64 S Ct 438 , 88 L Ed 645 (1944)). To sustain the power of the state to prohibit the distribution of certain material to children that is considered harmful “requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors.” Ginsberg, 390 US at 641 . The Court then concluded that it was not irrational for the legislature to conclude that exposure to “nudity, sexual conduct or sadomasochistic abuse” would be harmful to children. Id. at 643 .

This case is not materially different from Ginsberg . ORS 167.065(l)(a), in fact, is virtually identical to the statute at issue in Ginsberg in all material respects. In my view, the United States Supreme Court’s decision is controlling. Whatever we may think about the wisdom of restricting the availability of such materials to children, the fact is that it is not irrational for the Oregon legislature to conclude that furnishing depictions of “sadomasochistic abuse, sexual conduct or sexual excitement” to children would be harmful to them. As a result, I have no trouble concluding that the statute passes federal constitutional muster.

*205 In short, I would hold that ORS 167.065(l)(a) does not violate Article I, section 8, of the Oregon Constitution. It is wholly contained within a historical exception to the protections of that constitutional provision. I would not reach the federal question that defendant raises for the first time on appeal. But, even if that issue were properly before us, I would readily conclude that the statute does not offend the free expression guarantees of the federal constitution either.

I respectfully dissent.

Edmonds, J., joins in this dissent.

I understand that, although Judge Brewer’s opinion does not command a majority on all points, it does with respect to this one. Hence, I refer to it as the “majority.”

I also agree with Judge Edmonds that, logically, it only makes sense to ascertain whether a historical exception applies before delving into any overbreadth analysis, because, if a statute is wholly contained within a well-established historical exception, it will be excepted from the overbreadth analysis that, after all, derives from Article I, section 8.

In fact, in Robertson itself, when the court reiterated the substance of its historical exception analysis, it referred to demonstrating the existence of the exception “when Oregon’s Bill of Rights was adopted in 1859,” without reference to the framers of the federal constitution 70 years earlier. Robertson, 293 Or at 433 .

The court did caution, somewhat cryptically, that statutes enacted contemporaneously with the state constitution are “not necessarily ftol be given much weight,” because constitutional drafters “are concerned with broad principles of long-range significance.” Henry, 302 Or at 521-22 .1 take it that the operative term is “not necessarily”; that is to say, the existence of a historical statute will not necessarily establish a historical exception. I do not understand the court to say that consideration of such statutes is not relevant or important. Indeed, in Henry , immediately following the quoted statement, the court proceeded directly to analyze in some depth the effect of an Oregon territorial statute to determine the extent to which it revealed evidence of a historical exception. Id. at 522-23 .

After describing the historical exception analysis generally, Robertson later reiterated that Article I, section 8, was not meant to immunize all speech from state regulation in all respects. As an example of regulation not prohibited by Article I, section 8, the court noted: “[0]ne of these is the use of words in the course of what indisputably would have been a conventional crime when Oregon’s Bill of Rights was adopted in 1859.’’Robertson, 293 Or at 433 (emphasis added).

Laurence Tribe comments that Sedley thus became the first adjudicated “streaker.” Laurence Tribe, American Constitutional Law, 657 (1978).

The court ultimately ordered the defendant discharged, because the case represented “the first prosecution of this sort in modern times.”

Shortly after the Civil War, in 1868, New York adopted an antiobscenity statute. 7 NY Stats 309 (1868).

Perhaps the most familiar summary of such literature is Justice Douglas’s, in his dissenting opinion in United States v. 12 200-Ft Reels, 413 US 123 , 93 S Ct 2665 , 37 L Ed 2d 500 (1973), in which he observed that the four decades before the enactment of the First Amendment

“ ‘saw the publication, virtually without molestation from any authority, of two classics of pornographic literature.’ D. Loth, The Erotic in Literature 108 *190 (1961). In addition to William King’s The Toast, there was John Cleland’s Memoirs of a Woman of Pleasure, which has been described as the ‘most important work of genuine pornography that has been published in English * * *” L. Markun, Mrs. Grundy 191 (1930). In England, Harris’ List of Covent Garden Ladies, a catalog used by prostitutes to advertise their trade, enjoyed open circulation. N. St. John-Stevas, Obscenity and the Law 25 (1956). Bibliographies of pornographic literature list countless erotic works which were published in this time. See, e.g., A. Craig, Suppressed Books (1963); P. Fraxi, Catena Librorum Tacendorum (1885); W. Gallichan, The Poison of Prudery (1929); D. Loth, supra; L. Markun, supra. This was the age when Benjamin Franklin wrote his ‘Advice to a Young Man on Choosing a Mistress’ and ‘A Letter to the Royal Academy at Brussels.’ ‘When the United States became a nation, none of the fathers of the country were any more concerned than Franklin with the question of pornography. John Quincy Adams had a strongly puritanical bent for a man of his literary interests, and even he wrote of Tom Jones that it was ‘one of the best novels in the language.’ ” Loth, supra, at 120.”

Id. at 132-33 (footnote omitted).

The abuse clause, in fact, is the only plausible textual basis for Robertson’s historical exception analysis. Thus, the “exception” is from the categorical prohibition of the first clause of Article I, section 8, not the section as a whole.

The court ultimately reversed the convictions but did not question the validity of the law. In fact, the court noted that the exhibition of obscene pictures was both a crime at common law and prohibited by statute. Andrews, 35 Or at 393 .

Judge Haselton does not join in this portion of Judge Brewer’s opinion. It thus commands less than a majority on the point, and I refer to it as the “lead opinion.”

Judge Armstrong makes the same point, albeit couched in terms more righteously indignant. He suggests that the Supreme Court’s decision in Henry forecloses the conclusion that there exists a well-established historical exception for the protection of children from obscene materials and that I have ignored my obligation to follow Supreme Court precedent in suggesting otherwise. 168 Or App at 155 n 4 (Armstrong, J., concurring). With respect, it is Judge Armstrong who ignores the Supreme Court’s express qualifications of its own holding in Henry. I have done no more than attempt to answer the question that the court made clear was left open in both Henry and Stoneman.

Judge Armstrong also makes an argument that the lead opinion does not, namely, that my historical exception analysis is foreclosed by the fact that obscene libel is not a “conventional” crime. According to Judge Armstrong, it is my task merely to apply the distinction between conventional and other crimes, “not to explain why it is untenable.” 168 Or App at 156 n 5 (Armstrong, J., concurring). Judge Armstrong’s argument, of course, amounts to mere question-begging. The very issue is what the court meant by its reference to “conventional” crimes and its relationship to the Robertson historical analysis. I have, in good faith, attempted to articulate an answer to those questions, not to assert that what the court has said is in any way “untenable.” Judge Armstrong’s concerns are misplaced.

Much of what I have described, for example, has been reported previously in Alschuler, Origins of the Law of Obscenity at 65-79; Schauer, The Law of Obscenity at 10-15; and Barnhart, The Oregon Bill of Rights and Obscenity at 935-40.

To the extent that the lead opinion correctly characterizes the burden, though, there is thereby created an interesting conflict with the long-established principle that legislative action always is supported by a strong presumption of constitutionality. See, e.g., Greist v. Phillips, 322 Or 281, 298 , 906 P2d 789 (1995) (quoting Duke Power Co. v. Carolina Env. Study Group, 438 US 59, 83-84 , 98 S Ct 2620 , 57 L Ed 2d 595 (1978)); State ex rel Juv. Dept. v. Orosco, 129 Or App 148, 150 , 878 P2d 432 (1994), rev den 326 Or 58 (1997). Why statutes challenged under Article I, section 8, should be treated differently from those challenged under any other provision of the Oregon Constitution in that regard is difficult to understand.

Criticism of originalism as an interpretive approach has been the subject of sustained and withering criticism in scholarly journals for several decades. See, e.g., Michael J. Klarman, Antifidelity, 70 S Cal L Rev 381(1997); Mark V. Tushnet, Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv L Rev 781 (1983); Paul Brest, The Misconceived Quest for the Original Understanding, 60 BU L Rev 204 (1980). But see Keith E. Whittington, Constitutional Interpretation: Textual Meaning, Original Intent and Judicial Review (1999) (proposing various responses to critique of originalism on philosophical and hermeneutic grounds).

In 1849, for example, the Oregon Territorial Legislature enacted a law that prevented “any negro or mulatto to come into or reside within the limits of this Territory.” Laws of Oregon 1850, p 181, § 1.