Opinion

State v. Moyer

  • 225 Or. App. 81
  • 200 P.3d 619
  • 2009 Ore. App. LEXIS 16
Court
Court of Appeals of Oregon
Filed
Jan 7, 2009
Status
Published
Author
Brewer
On the bench
Brewer, Edmonds, Landau, Haselton, Armstrong, Wollheim, Schuman, Ortega, Rosenblum, Sercombe
Cited by
3 cases
Authority
More cited than 11.3%

The opinion

*99 BREWER, C. J.,

concurring.

I agree with the majority that ORS 260.402 focuses on the harmful effects of speech, not speech itself. Therefore, I concur in the result that the majority reaches.

I disagree, however, that the statute is wholly contained within a historical exception to the guarantee of Article I, section 8, of the Oregon Constitution. My quarrel is not with the majority’s able effort to apply the historical exception prong of the State v. Robertson, 293 Or 402 , 694 P2d 649 (1982), methodology. Suffice it to say that, in my view, a more practical and predictable basis for determining the scope of the constitutional guarantee lies in the distinction between speech and its effects, rather than in reliance on the sometimes debatable and obscure remnants that a limited historical record may yield concerning possible exceptions that do not comport with the constitutional text.

Accordingly, I respectfully concur.

Edmonds, J., joins in this concurrence.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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