OREGON'S UNIQUE CONSTITUTIONAL PROTECTION OF FREE EXPRESSION IS CHALLENGED

Editor’s note: We could not print this article in our last newsletter due to space limitations. We expect the Oregon Supreme Court to rule on these cases sometime in the next few months and we thought this would be a good time to provide our members with a good “primer” on the issues at stake and the uniqueness of Oregon’s free expression clause.

Two cases argued before the Oregon Supreme Court on November 3, 2003, State vs. Ciancanelli, and City of Nyssa vs. Dufloth, raise the most important free speech and expression issues that have arisen in Oregon in the last twenty years. The Oregon ACLU has been involved in the evolution of Oregon’s free expression case law, participating in nearly every major case involving Article I, sec. 8 of the Oregon Constitution in the past two decades. Article I, sec. 8 reads: “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.”

As in all cases, the facts of a particular situation have great bearing in the legal outcome. However, it is also important how a court chooses to analyze a constitutional provision and then apply that constitutional framework based on the facts and laws at issue. The Ciancanelli and Nyssa cases are of great concern to ACLU because the very analysis developed by the Oregon Supreme Court to provide the framework for determining whether or not a particular government action, regulation or law abridges freedom of expression in Oregon is being challenged by the Oregon Court of Appeals.

To better understand what is at stake, let’s first look at the facts and legal issues presented by the Ciancanelli and Nyssa cases. Ciancanelli was the owner of a sex industry business that included a private, paid-admission-required and adults-only performance involving two nude women who touched and, at least, gave the appearance of sexual stimulation. Two undercover police officers paid admission, watched the show, and subsequently arrested Mr. Ciancanelli for violation of ORS 167.062 which makes it unlawful for a person “to knowingly direct, manage, finance or present a live public show in which the participants engage in sadomasochistic abuse or sexual conduct.”

The city of Nyssa enacted an ordinance that prohibited any entertainer from being unclothed and exposing the entertainer’s “pubic region, buttocks, genitals, vulva, or anus” except removed at least four feet (4’) from the nearest patron.” This ordinance was aimed at nude dancing in Nyssa where a juice bar and nude dancing establishment, Miss Sally’s Gentlemen’s Club, apparently attracts a large number of patrons from Idaho as well as from Oregon. 

The two cases raise different, but related issues.  The Ciancanelli case raises specifically the issue of whether Article 1, sec. 8 of the Oregon Constitution  protects  persons who participate in or produce live sex shows for adults only, in private settings. More importantly, Ciancanelli raises the issue of whether local or state governments in Oregon can lawfully (without violating Article 1, sec.8 of the Oregon Constitution) prohibit people in a play, or in a ballet, or in a musical from engaging in sexual conduct during the performance. Sexual conduct is defined in Oregon law as “human masturbation, sexual intercourse” or other sexual touching “in an act of apparent sexual stimulation or gratification.” Under the statute, ORS 167.062, people do not have to be nude
to be guilty of engaging in apparent or actual sexual stimulation or gratification. Two ballet dancers who give the appearance of sexual touching and stimulation, two actors doing the same on a couch in a play, two performers in a musical, bumping and grinding to rock music, could be guilty of violating this statute.  

The Oregon constitutional objection to the statute is that it covers activities that constitute expression under Article 1, sec. 8, and that expression is a protected right that may not be prohibited by the government. And, even if the statute includes conduct that can be regulated by the government, its wording is so broad that it also encompasses expression that may not be regulated by the government. The important distinction is between conduct and expression. Harmful conduct can be regulated, but expression is constitutionally protected.

In the Nyssa case, the issue is whether keeping nude dancers at least four feet away from customers is a permissible regulation of conduct, or whether it is a government interference with protected expression. The lawyers for Nyssa argue that the four-foot rule regulates conduct and not expression. This is a difficult argument to sustain, because four feet is neither conduct nor expression, it is simply a measure of distance. But, when applied to the expressive activity of dancing, distance has everything to do with expression. I know this from attending high school dances and proms, where the dance partners, had they been any closer, would have merged into one person. And the expression, the perspiration, the fragrances, the sounds and feel of another breathing, heart- beating body, was clearly a substantively different expressive experience than one of being separated by four feet.  Distance and dancing are fundamentally intertwined with respect to expression. If one adds to this the fact that nude dancing by design and aim is intended to be erotic, the distance factor becomes even more strongly expressive. After all it is when the belly dancer has singled out a restaurant customer, and is now within a foot of him, inviting the customer to join her in the hip-swiveling dance, that everyone’s interest peaks as to what the outcome of the invitation to join her will be.

But Nyssa also claims that its ordinance is valid even if dancing is expression and not conduct, because the ordinance narrowly addresses forbidden conduct and is not overbroad, that is, does not sweep in a lot of protected expression with the forbidden conduct. Here, Nyssa’s problem is that the statute addresses no forbidden conduct. There is nothing illegal about two consenting persons being inside of four feet of each other, where one is nude and the other is not, both are nude, or both are sexually expressive. But, Nyssa placed a preamble in its ordinance that claimed that “[t]he regulation of distances at which live performances occur from the patrons [is] directed at the elimination of sexual conduct or other adverse secondary effects, unrelated to the protected expression of the performer.” This is the equivalent of saying, “trust us,” although this ordinance regulates expression our true intent is to prevent a lot of bad conduct from occurring. If government promises could prevent statutes from being overbroad in their application and prevent the sweeping in of a lot of protected expression that is prohibited along with conduct, then we wouldn’t need constitutional protections, we could just rely on the government to always do the right thing.

There is a much larger and broader and more important issue that is being raised in each of these two cases. In State vs. Robertson, 293 Or 402 (1982), the Oregon Supreme Court held that Article 1, sec. 8, Oregon Constitution, protects free expression and prohibits “the enactment of any law written in terms directed to the substance of any communication, unless the scope of the restraint [on expression] 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 perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.”

The Oregon Court of Appeals in both the Ciancanelli and the Nyssa cases held that because there were laws in America and in Oregon that regulated nudity and sexual conduct prior to, and concurrent with, 1859 when the Oregon Constitution was adopted, such laws regulating public nudity and sexual conduct are another historical exception to the Article 1, sec. 8 protection of expression and speech. There are a number of problems with the Court of Appeals claim that public nudity and sexual conduct statutes in 18th and 19th century America constitute an historical exception to the protection afforded free expression by Article 1, sec. 8, Oregon Constitution.  I will mention only two.

First, it is a constitution that is being interpreted and generally constitutions establish the structure of a government, describe qualifications for positions in the government, describe the units of governments and their functions and powers, and place limitations against the exercise of government power in the form of rights granted to the people. Constitutional provisions in the form of rights granted to the people, such as the right to freedom of speech and expression, of association, of religious freedom, have foundational priority to statutes enacted by legislative bodies. A constitutional right of a person can trump a statute enacted by the government that restricts the person’s exercise of the constitutional right. The people who enacted the Oregon Constitution in 1859 knew that they were enacting a constitution and not a collection of statutes. They knew that rights that were conferred on the people by the text of the Constitution would be superior to statutes either currently in force or that would be enacted in the future, where those statutes interfered with conferred constitutional rights. Whatever statutes pre-existed and co-existed with the enactment of the Oregon Constitution were irrelevant to the force and scope of application of the Constitution.

If the pre-existing and co-existing statutes were relevant to the force and scope of the application of the 1859 Oregon Constitution, then, in effect, the enactors of the Constitution would have given similar foundational status to all pre-existing and co-existing statutes as it gave to the provisions of the Constitution itself. That would be an absurd result, and there is no good reason to assume that the enactors misunderstood that it was a constitution that they were creating. Second, the limited historical exceptions that the Court in Robertson did identify fall into two categories:  l) crimes having to do with lying, deceit, or misrepresentation; and, 2) solicitation or verbal assistance in the commission of a crime. The second category is obviously an exception to free speech and expression. A person cannot use speech to talk someone into killing his wife, and then claim that he is immune from prosecution for murder because his solicitation of the contract killer was protected speech or expression. The first category of historical exception is equally obvious, once we think it through.

We can’t have a system of laws where enforcement of the law often happens in courts, without laws against perjury. If there were no constraints on our using speech and expression to lie, deceive, and misrepresent, we would run the serious risk, if not the logical inevitability, of losing all standards for reliable and trustworthy communication. Without the incentive for truthfulness in the courtroom, we could have no reliable judicial process for separating the guilty from the innocent, and those who are liable for civil wrongs from those who are not. Neither can we have a stable or functioning society where there are no disincentives to lying, deceiving, and misrepresenting that is harmful to others.  Without a societal emphasis on truthfulness, the implicit trust that we have in many, if not most, of our communications with others would diminish. Historically, the law in England, in the U.S., and in other countries has recognized that the foundation for freedom of expression and freedom of speech is a respect for the importance of truthfulness; without laws regulating lying, deceit and misrepresentation it is doubtful that a stable or just society is possible.

What is important is that we recognize the foundational significance of the historical exceptions referred to in the Robertson case, the two categories I have mentioned.  And that we be able to distinguish those foundational historical exceptions from the majoritarian-views-of-morality expressed in statutes that the Court of Appeals claimed were historical exceptions to Article 1, sec. 8. If majoritarian (assumed to be because the peoples’ elected representatives have enacted them into law) moral views can be excepted from the Constitutional protection of freedom of speech and expression, then those protections are profoundly weakened, if not destroyed. The Court of Appeals decisions in Ciancanelli and Nyssa assume that majoritarian moral views enacted into statutes can hold a position in our scheme of laws equivalent to the constitutionally protected rights of all people. That assumption is wrong and conflicts with the common understanding of what a constitution is and what its functions are.

The State of Oregon, through its Department of Justice, argued in the Ciancanelli case that the Oregon Supreme Court should abandon its decisions in State v. Robertson (1982), State v. Henry (1987), State v. Stoneman (1996) and all the Article 1, sec. 8 decisions post Robertson (1982), and instead adopt a balancing test for the application of Article 1, sec. 8 rights. The state would have the courts balance the advantages and disadvantages of protecting the freedom of expression and speech of individuals against the advantages and disadvantages of the general welfare of the state as might be advanced by a statute that prohibits or limits freedom of expression or speech in certain contexts. The state would also have the person objecting to the statute and claiming the Article 1, sec. 8 right to freedom of expression, have the burden of asserting and showing that the statute interferes with Article 1, sec. 8 rights.  This would substantially weaken each person’s right to free expression and speech in the state of Oregon. It would result in the same kind of balancing of rights against the general welfare that the U.S. Supreme Court engages in at the national level. Oregonians have greater freedom of expression and speech rights than do most Americans. The decisions that the Oregon Supreme Court makes in these two cases, State v. Ciancanelli and Nyssa v. Sally A. Dufloth, will greatly influence the extent of the freedom of expression and speech that we as Oregonians presently enjoy.

ACLU cooperating attorney Les Swanson co-authored our Amicus briefs in the Ciancanelli and Nyssa cases with Chin See Ming of the Perkins Coie law firm.