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  Volume XXVIII, Number 2
Summer / Fall 1996


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November Ballot Reflects Victories As Well As Battles Ahead

When reviewing the final slate of ballot measures for this November's election, it's tempting to believe we have turned the corner. Unfortunately, there's still plenty to worry about even though this will be the first election since 1988 that the Oregon Citizens Alliance won't have an anti-gay or anti-abortion measure on the ballot.

As we began the year, it appeared that the fall ballot could have included the largest number of anti-civil liberties ballot measures ever. One by one, many of the issues have gone away.

First, the proponents of a measure to ban affirmative action chose not to collect signatures. Then State Rep. Kevin Mannix (D-Salem) decided not to pursue his proposal to greatly increase criminal sentences for property crimes.

Next the OCA pulled the plug on their "Daughter of 13" anti-gay measure after the U.S. Supreme Court's decision on Colorado's Amendment 2 made it clear the measure was unconstitutional.

Soon after that, the proponents of four separate anti-immigrant measures announced they were throwing in the towel on their proposals and instead would turn their attention to the state legislature.

Finally, on July 5th (the deadline for submitting signatures to the Secretary of State), Lon Mabon announced that the OCA was 20,000 signatures short of the 97,681 needed to qualify their constitutional amendment to ban virtually all abortions after the first 12 weeks of pregnancy.

All of these are victories worth celebrating -- especially the fact that the OCA seems to have lost favor with many of its traditional allies and appears to be scattered and disorganized at the moment.

Unfortunately, the measures that did make the ballot still represent major threats to civil liberties. Things just aren't as horrific as they could have been.

At the top of ACLU's priority list is Measure 31, the censorship measure that would repeal Oregon's free speech protection for "obscenity." [see separate story]

Also of great concern is Measure 40, the proposed "victims' rights" initiative, which would give police and prosecutors much greater power to run roughshod over the due process protections for those accused of crimes. Because of its appealing rhetoric, this major revision of the Oregon Bill of Rights will be very difficult to defeat in the current political climate.

Oregon law already includes numerous provisions aimed at ensuring that the needs of crime victims are taken into account by courts and prosecutors. Thus, the true effect of Measure 40 would be to carry out the mandate of former U.S. Attorney General Edwin Meese who argued that individuals wouldn't be "suspects" unless they were guilty of crimes.

Another crime-related measure would repeal the Oregon Bill of Rights provision that prohibits criminal sentences based on "vindictive justice." That will appear as Measure 26 and was placed on the ballot by the 1995 Legislature with the support of Crime Victims United (the chief proponents of the "victims rights" amendment), Senate President Gordon Smith (R-Pendleton), House Speaker Bev Clarno (R-Bend) and Attorney General Ted Kulongoski.

Finally, ACLU opposes an initiative that would prohibit the legislature from making any changes to measures approved by voters until at least 5 years have passed, and then only when such changes are approved by a 3/5 super-majority. While appealing to voters' current disrespect for lawmakers and the legislative process, this proposal would greatly undermine the ability of elected representatives to make even minor changes to repair the unintended consequences of poorly drafted initiatives.

As you have no doubt heard, these are just a few of the almost two dozen measures that will appear on the November ballot. While ACLU won't have positions on the rest, we remain deeply concerned that various public interest groups are using the initiative process to amend the Oregon Constitution as a means of forwarding their specific policy agenda, rather than proposing laws that could more easily be refined and improved later by either the legislature or the people.

We continue to pursue reforms of the initiative process that would safeguard civil liberties without eliminating the initiative process altogether. We recognize that the initiative process can also be a force for protecting individual rights, as with the passage of Measure 16 (the Death with Dignity measure) two years ago. But we are keenly aware that initiatives have often targeted minority groups that are viewed as "dangerous" by many voters.

We have seen more than enough evidence to convince us that Oregon's initiative process can be too easily manipulated by those who wish to inflame people's passion and prejudice. The Bill of Rights was designed to protect us against such excesses by temporary majorities. We will continue to investigate initiative reforms that would provide greater security for the basic rights that should be inviolate for all citizens under our system of government.

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No Need For Censorship Measure 31

The Oregon Supreme Court eliminated much of the political momentum in support of Ballot Measure 31 when it upheld Oregon's tough child pornography laws against a constitutional challenge in July.

The Oregon ACLU had filed a friend of the court brief in the case, State v. Stoneman, arguing that Oregon's free speech guarantee does not prohibit criminal laws directed at punishing the production, sale and purchase of photographs of actual children engaged in sexual conduct.

Ballot Measure 31, like Measure 19 which was defeated by voters two years ago, seeks to repeal the Oregon Bill of Rights protection of free expression for material which would be considered "obscene" under the federal First Amendment. We strongly oppose Measure 31 because it would allow every city and county to adopt different censorship regulations and definitions of "obscenity."

Article I, Section 8 of the Oregon Constitution prohibits any law that "restricts the right to speak, write, or print freely on any subject whatever." In earlier decisions, the Oregon Supreme Court has said that language means that laws aimed at preventing speech are invalid--even if those laws are aimed at types of speech which the U.S. Supreme Court has said are not protected by the First Amendment.

Thus, in an ACLU case in 1987, the Oregon Court overturned a state law banning the sale of "obscene" material to adults. Another ACLU case overturned a Portland ordinance that sought to severely limit the locations of "adult" businesses. Nevertheless, the Court said that laws aimed at the negative effects of speech were allowed. Since that time there have been numerous attempts to change the Oregon Bill of Rights and convince the Oregon Supreme Court to change its mind.

The Stoneman case was especially important because the Court stuck to the rationale of its earlier decisions. Justice Michael Gillette said the Oregon law aimed at child pornography causes no constitutional problem because the material is a direct result of conduct that harms children: forcing children to engage in sexual activity.

Thus, the Court has made it clear that children can be protected from sexual abuse without passing Measure 31.

The ACLU is an integral member of the No Censorship - No on Measure 31 coalition. We are confident we can defeat Measure 31 if we can raise the funds necessary to explain the implications of it to Oregon voters. Aside from contributions, we also need volunteers for making phone calls, staffing literature tables and other activities.

For more information, contact the Portland or Eugene ACLU office or contact the campaign directly at:

No Censorship - No on Measure 31 Committee, PO Box 40407, Portland, OR 97240

(503) 229-0132.

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In The Courts

Welcome to the 1998 election season! No, that's not a typo. As of July 25, 11 measures targeted for the 1998 general election have been filed with the Secretary of State's office. Of those 11, we know of six that pose grave civil liberties concerns.

The highlight of the recently filed measures is, of course, the OCA. The OCA, in case you thought failing to make the 1996 ballot signaled its demise, is struggling to stay in the arena and presents three measures for consideration -- two unlike anything we've seen in quite a while.

In a proposal similar to the failed '96 measure, the OCA is again trying to ban second and third trimester abortions. Additionally, the OCA has filed "The Family Act," which would deny certain rights and civil liberties protections to gays & lesbians, without ever using the words "gay," "lesbian," "homosexual" or "sexual orientation."

The third OCA measure has since been rejected by the Secretary of State's Office because it constitutes proposed revisions rather than amendments to the Oregon Constitution. The OCA proposed "The Separation of Powers Restoration Act." Among other things, this measure would have created secret grand juries with the power to investigate, remove and fine public officials.

Other proposed measures have been filed by the anti-immigrant folks, who are back with two measures (so far), and Walter Huss, who has filed a measure that would prohibit abortion through conferring all "[t]he rights, privileges and immunities reserved to the people by this Constitution ...and common law of the State of Oregon...[upon] natural persons at conception."

As always, the ACLU will file ballot title comments and, if necessary, challenges with the Oregon Supreme Court regarding all of the above measures, plus pre-election challenges to "The Family Act." We will be sure to keep you posted.

Privacy: Challenge to Measure 16, the Oregon Death With Dignity Act: Approved by Oregon voters in 1994, the Death With Dignity Act continues its journey through the court system. Challenged by the National Right to Life Coalition, Measure 16 has yet to go into effect, almost two years after its approval by Oregonians.

US District Court Judge Michael Hogan issued a permanent injunction against the measure, which is still in effect. On July 9, the federal Ninth Circuit Court of Appeals heard oral arguments in Portland regarding the legitimacy of Right to Life's challenge to Measure 16. While attorneys for the State of Oregon and Oregon Death with Dignity tried to argue Measure 16's validity, especially in light of a recent Ninth Circuit Court decision declaring a Washington state ban on physician assisted suicide unconstitutional, the court seemed particularly focused on whether or not the plaintiffs represented by Right to Life actually have standing to challenge the measure.

In other words, the Ninth Circuit Court may rule that Right to Life's plaintiffs were not qualified to challenge the measure, which would, technically, mean a win for us. However, such a result might only send Right to Life back to Judge Hogan, but with new plaintiffs, since Judge Hogan seems likely to find some way to keep the injunction in place against Measure 16, no matter how tenuous the legal grounds to do so. This could go on for years.

The ACLU, currently represented by cooperating attorney Tom Christ, has been involved in the battle to give Oregonians what we feel is their constitutional right to death with dignity since the beginning; and we will remain involved until it is finally resolved.

Free Speech & Association: Planned Parenthood's lawsuit against anti-abortion activists: unWanted for abortion...unWanted in any Florida city...Guilty of crimes against humanity... The posters then went on to list the names, addresses and descriptions of physicians whose services included abortion. Free speech, or legitimate threat?

The ACLU of Oregon appears amicus in Planned Parenthood of the Columbia/Willamette, et al. v. American Coalition of Life Activists, et al., a case brought by reproductive service providers against a variety of anti-abortion activists. In October 1995, the providers filed a civil complaint in US District Court in Portland, charging the anti-abortion activists with violating state and federal RICO (Racketeer Influenced and Corrupt Organizations Act) statutes and the federal FACE (Freedom of Access to Clinic entrances Act) law.

Specifically, the providers allege that the defendants conspired "to issue statements and otherwise take actions that, taken in context,... constitute threats of violence against abortion providers because they are intended to, and do, place providers in reasonable fear of bodily harm." Included in the complaint as examples are the murder of abortion providers, providers who had been featured in "unWanted" posters, by anti-abortion activists; and, the allegation that some of the defendants have signed "justifiable homicide" declarations -- statements that promote and endorse the use of deadly force against abortion providers.

The amicus brief prepared by ACLU cooperating attorney Michael Simon points out the need to clarify the "bright line" between protected and unprotected speech. To help clarify that line, we highlight the need for distinction between actual threats as a "reasonable" person would perceive them and the background information that provides the context required to prove that the actions and/or statements were threats, as opposed to protected speech.

ACLU involvement in this case is very important. Statements and actions by the defendants that are irrelevant to the context of threatening speech, while repugnant to many, should not be allowed to support the allegations of legitimate threats and threatening behavior. To do so would chill protected speech for others. This case is still in its early stages; ACLU's involvement will continue as the case progresses.

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Search & Seizure; Double Jeopardy: Civil Forfeiture Update

In a serious blow to civil liberties, the U.S. Supreme Court decided in United States v. Ursery, 64 U.S.L.W. 4565 (1996), that civil forfeiture affecting (the right of police agencies to seize the property of individuals suspected of criminal activity) is not punishment under the Fifth Amendment's Double Jeopardy Clause. In the majority opinion, Chief Justice Rehnquist argued that since it is the property that is targeted and not the individual; the government may seek criminal prosecution and civil forfeiture in separate proceedings arising out of the same offense.

Nationally, as well as here in Oregon, the use of forfeiture laws to seize property is on the rise. Under the guise of stopping illegal drug use, the government has seized on civil forfeiture as an easy way to target drug dealers by confiscating their property and using the proceeds to help fund law enforcement..

Perhaps most striking is that seizure of property can occur even if the property owner is never charged or convicted of a crime. Further, since the proceeds from the seizure are funneled into law enforcement, the government has an incentive to increase the practice to ensure a continuing source of income. Adding insult to injury, individuals whose property has been seized do not have the right to a court-appointed attorney, which forces people to choose between forfeiting ownership or funding an expensive legal battle.

The ACLU's position is that punitive fines and seizure of property should only occur in the courtroom as part of the criminal sentencing procedure after someone has been found guilty of a crime. That would help ensure that innocent owners are not victimized by property seizures and it could help eliminate the conflict of interest for police agencies whose budgets now benefit from forfeitures.

Unfortunately, the Supreme Court decision makes it clear such changes will occur only if Congress changes the law.

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Buy At BorderÔs -- Benefit ACLU!

Here's your chance to add some banned books to your home library and support the ACLU, all in one trip. Saturday, September 14, take that list of books you've been meaning to buy and head to Borders Books & Music in downtown Portland. Bring your 1996 Uncensored Celebration flyer, show it to the cashier and Borders will donate 15% of your total purchase to the ACLU!

This deal happens all day, but one day only, so mark it down. Borders is located at 708 SW 3rd in Portland. Call 221-9814 for hours and other information.

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Freedom of Expression Award Recipient -- Deborah Garman

Perhaps the greatest highlight of the Uncensored Celebration is the annual presentation of the Freedom of Expression Award by the ACLU Foundation of Oregon. On September 12, Deborah D. Garman will join the Freedom of Expression Award's distinguished list of recipients at a reception hosted by the Elizabeth Leach Gallery in downtown Portland.

Deborah Garman began her activism on behalf of free expression in 1988, when she became the Executive Director of the Pacific Northwest Booksellers Association. During her five years with PNBA, she was heavily involved in opposing censorship in Oregon and Washington, at both the local and the legislative level. Garman was a founding board member of the American Booksellers Foundation for Free Expression in 1990, and served in that capacity through 1994, when she also participated on the steering committee for the successful No Censorship, No on 19 ballot measure campaign.

Garman joins the ranks of past awardees cartoonist John Callahan; film maker Gus Van Sant; arts curator, the late William Jamison; poet Judith Barrington; and, Oregonian Associate Editor David Sarasohn.

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1996 Uncensored Celebration Highlights

Check your 1996 Uncensored Celebration for a full listing of this year's events, but here are a few we think are worth an extra mention:

The Old Glory Exhibition: Fact & Fiction: a lecture by David Rubin, curator of 20th Century Art at the Phoenix Art Museum. Rubin discusses the political flap surrounding the museum's exhibit on contemporary art featuring the American flag. Portland Art Museum, Berg Swann Auditorium, 1219 SW Park, Portland, Sept. 8 at 2 p.m. Call 226-2811.

Let Them Eat Cake: an unusual exhibit featuring artistic studies of cake as an important element of ritual. Couples of all persuasions are invited to use the exhibit space for personal commitment ceremonies (and to eat cake while they're at it). Acanthus Gallery, 120 NW 9th #210, Portland, Sept. 3-28. Call 224-5475 for times and more information.

Nude Descending a Supreme Court Case: A forum on censorship and the arts. Held at ARTS: Central, 164 W. Broadway, Eugene, Sept. 16 at 4 p.m. Call 485-2278.

Artists Celebrate Expression (& Help ACLU): Graphic artists Niki Harris and Peter Anthony donate Freedom of Expression artworks for ACLU's Uncensored Celebration. All proceeds from the sale of these pieces benefit the ACLU of Oregon. Alder Gallery, 55 W. Broadway, Eugene, all month long. Call 342-6411.

Civil Liberties Potluck: Celebration of past and present Jackson County ACLU board members. Everybody is invited for a potluck dinner. Lithia Park (next to OSS), Ashland, Sept. 7, 2-5 p.m.

Fall Festival Uncensored Celebration: Stop by the ACLU booth, displaying challenged books and Uncensored Celebration goodies. Corvallis--Benton County Public Library, 645 NW Monroe, Corvallis, Sept. 28-29.

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Freedom of Expression Award Reception & No on Measure 31 Benefit

Join the ACLU Foundation of Oregon and other defenders of free speech as we honor one of our most active and effective partners. Thursday, September 12, at a 6 p.m. reception at the Elizabeth Leach Gallery in Portland (207 SW Pine), the ACLU will present the 1996 Freedom of Expression Award to Deborah D. Garman, longtime activist in the fight against censorship.

Tickets are available for $5-10, sliding scale. Proceeds from the reception go to the No Censorship, No on 31 Committee. For your money you will be treated to an evening of wine, hors d'oeuvres, and celebration of free expression. Call 227-3186 for tickets or more information. See you there!

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We Challenge You To -- A New $40,000 Challenge Grant!

Once again the ACLU Foundation of Oregon has been offered a $40,000 matching challenge grant to help increase annual support for our education and legal programs.

An anonymous donor has laid down the challenge to ACLU members and supporters across the state: every dollar of new gifts to the ACLU Foundation of Oregon will be matched with one dollar. The challenge to renewing donors is to match dollar for dollar any increase in your giving to the ACLU Foundation of Oregon. For example, if you gave $50 in 1995 and you increase your 1996 gift to $150, the $100 increase in your giving will be matched with another $100. Thus, the ACLU will receive $250!

Remember, gifts to the ACLU Foundation of Oregon are tax deductible. To qualify for the challenge grant, gifts must be received by December 31, 1996. To make giving easier for you, the Oregon ACLU now accepts and VISA. For more information on the challenge grant or other ways you can contribute, please contact Associate Director Jann Carson in Portland at (503) 227-3186 or Polly Nelson in Eugene at (541) 345-6162.

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Same-Sex Marriage On The Rocks

By a 342-67 vote, the U.S. House of Representatives passed a bill that would redefine marriage in Federal Law as a "legal union between one man and one woman." This bill, a direct response to a case before the court in Hawaii that could result in that state recognizing same-sex marriages, has a provision that would attach a "gay exception" to the Constitution's Full Faith and Credit Clause allowing states to ignore marriages performed in any other state. In Oregon, only Peter DeFazio stood in support of lesbian and gay citizens with his resounding "no" vote.

In response to this piece of legislation, the ACLU has submitted testimony to the Senate Judiciary Committee calling the so-called Defense of Marriage Act, "unprecedented, discriminatory and unconstitutional." Considering the economic and legal benefits granted to civil marriages, lesbians and gay men who are prohibited from marrying are subject to unequal treatment under the law. For example, lesbians and gay men whose marriages are not recognized by the state may be prevented from making medical decisions for their

partners who are hospitalized, or may lose their home if a partner dies.

The National ACLU has endorsed the "marriage resolution" developed by a coalition of groups working for the rights of gay men and lesbians to marry. In part, this resolution states that "the State should not interfere with same-gender couples who choose to marry..."

The Oregon ACLU is working with the Oregon Freedom to Marry Coalition to help educate the public on this important issue through public meetings and workshops. Contact our Portland or Eugene office for more information.


Copyright 1996 ACLU Oregon

Copyright October, 2005 , ACLU of Oregon
Last updated October 19, 2005