In celebration of Oregon Constitutional Law receiving the ACLEA Award of Outstanding Achievement in Publications, we decided to share an excerpt from that award-winning book. This excerpt is from chapter 3, Article I, Section 8, Free Speech Writ Large, by Robert M. Atkinson. For more on this topic you can purchase a copy of Oregon Constitutional Law from the OSB Online Bookstore or log in to BarBooks™.
The Oregon Supreme Court’s free-speech jurisprudence under Article I, section 8, of the Oregon Constitution is unique in its analysis. Consequently, federal law of free expression or the law of other jurisdictions on that subject is unlikely to be useful in attempting to apply the Oregon Constitution’s provision. For example, federal law distinguishes among differing kinds of expression based on their content. Thus, commercial speech gets less federal constitutional protection than political expression. Compare Boos v. Barry, 485 US 312, 321, 108 S Ct 1157, 99 L Ed2d 333 (1988) (political speech), with Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of New York, 447 US 557, 562–63, 100 S Ct 2343, 65 L Ed2d 341 (1980) (commercial speech). Under the Oregon Constitution, by contrast, all expression is equal and equally protected. Bank of Oregon v. Indep. News, Inc., 298 Or 434, 439–40, 693 P2d 35 (1985). In general, Oregon’s free speech jurisprudence is uniquely protective of expression of all kinds. Indeed, it is no exaggeration to state that—with very few and limited exceptions, which are discussed in §§ 3.4-1 to 3.4-3—all speech and expressive conduct are constitutionally protected.
The basic outline of the analysis is readily described, even if not always easily applied. But difficult questions—such as what conduct is sufficiently expressive to warrant protection—remain unresolved. This chapter is intended as a doorway into this important area. To avoid excessive length and paralyzing detail, it sticks, for the most part, to the well-traveled roads, leaving some interesting byways unexplored.
Article I, section 8, of the Oregon Constitution states: “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.”
§ 3.3 BASIC ANALYSIS
The genesis of the modern construction of this provision is found in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Any lawyer seeking to understand and apply Article I, section 8, must be familiar with that case. The Robertson analysis categorizes laws as falling within one of three levels or categories. Vannatta v. Oregon Gov’t Ethics Comm’n, 347 Or 449, 455–56, 222 P3d 1077 (2009) (Vannatta II); City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Those categories focus on the terms in which the law in question is written and whether those terms refer directly to expression.
§3.3-1 Laws Focusing on the Content of Expression
At the first level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), are laws that focus on the content of speech or writing and are written in terms directed to the substance of any opinion or any subject of communication. City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). Laws written in those terms violate Article I, section 8, “on their face” unless the scope of the restraint is confined within one of the few exceptions discussed in §§ 3.4-1 to 3.4-3. Miller, 318 Or at 495.
To illustrate, imagine that the legislature sought to protect the Oregon Supreme Court from having to decide whether a claim of error on appeal was preserved in the trial court. The most direct way to write such a law would be to state: “Do not discuss preservation of error in the Supreme Court.” That hypothetical law is quite obviously directed by its terms at the content of expression—discussions of preservation—because the statute’s text specifies what speech is forbidden. That law would, therefore, be unconstitutional on its face unless it came within one of the exceptions. The same fate would await laws specifying certain disfavored words, rather than—as in the example above—general content, and making it a crime to utter them.
§.3-2 Laws Focusing on Harms or Effects, but Directed by Their Terms at Expression
The second level of analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden harms or effects but, by their terms, expressly prohibit expression used to achieve those effects. To return to the example in § 3.3-1, a second approach to preventing discussion of preservation might state: “Do not annoy the Oregon Supreme Court by discussing preservation of error.” That hypothetical law is addressed by its terms to a harm or effect—annoying the court. But those terms also specify expression—discussion of preservation—as a means of bringing about that forbidden effect.
Laws in this category are analyzed for overbreadth. In very general terms, a law is overbroad when and to the extent that it purports to prohibit or regulate constitutionally protected expression. For example, a statute that prohibited alarming a person by threatening adverse consequences if the person performs some act focuses on harm—causing alarm—and specifies speech as a means of achieving that harm. That statute is overbroad to the extent that it would prohibit, for example, a physician telling a patient that she will increase her chances of having a heart attack if she does not quit smoking. See State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982);State v. Garcias, 296 Or 688, 698–99, 699 n 10, 679 P2d 1354 (1984). The decisive question would be whether the speech specified in the statute—returning to the prior example, discussion of preservation—is constitutionally protected. If it is, then the statute is overbroad because, and to the extent that, it seeks to restrain constitutionally protected speech; speech that may not be restrained.
Although the question of whether a law is directed at a harm or effect is generally determined by the law’s text, that is not inevitably the case. Rather, the court will consider the statute’s context to determine 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.” State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996) (emphasis by the court).
§3.3-3 Laws That, Although They Are Not Directed at Expression by Their Terms, May Be Applied to Expression
The third level of the analysis set forth in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), consists of laws that focus on forbidden effects without referring to expression at all. These “speech-neutral” laws cannot be challenged facially. State v. Illig-Renn, 341 Or 228, 234, 142 P3d 62 (2006). Rather, they are analyzed to determine whether the law was applied in the particular circumstances before the court so that it burdened protected expression. Because these challenges are generally based on the application of the law rather than its text, they tend to be addressed to actions of the executive rather than the legislative branch. Thus, the speaker challenging the law would be asserting that, although the law itself may be constitutional as written, the government exceeded the law’s proper scope by applying it to his or her speech. That may occur, for example, if the regulator simply misconstrues the scope of the law or applies it in a manner that is not speech-neutral. See City of Eugene v. Lincoln, 183 Or App 36, 43, 50 P3d 1253 (2002).
Here, our exemplary law (see §§ 3.3-1 to 3.3-2) would simply state: “Do not annoy the Oregon Supreme Court.” A person prosecuted criminally or subjected to civil sanctions for violating this law by addressing preservation of error would have to argue that the statute was unconstitutional as applied to his or her speech because, the person would claim, speech about preservation of error is constitutionally protected in the context of an appeal. If the person is right, the law is unconstitutional as applied to that particular expression. City of Eugene v. Miller, 318 Or 480, 488–90, 871 P2d 454 (1994), illustrates the application and analysis.