free speech in oregon and state v. ciancanelli and city of nyssa v dufloth and city of nyssa v smith and robertson framework and priest methodology

When I was a mathematics major at Brown University more than 30 years ago, I had a professor who selected a textbook he had written for use in our abstract algebra class. One day, when puzzling over one of the problems he had given us to solve he was heard musing, "When I wrote this problem, only God and I knew what I was talking about. Now, I am afraid, only God knows."

This, in a nutshell, was my first and second reaction to the Oregon Supreme Court's decisions in State of Oregon v. Ciancanelli and City of Nyssa v. Dufloth, both handed down today. Though some may have thought they understood the court's free speech reasoning before these two cases, now, I believe, only God knows it. Even though I have worked fairly closely with the Oregon free speech decisions for most of a decade now, and I understand almost all the moves that parties have to make in order to present their cases persuasively under the law, I really couldn't follow all the reasoning of the Supreme Court's decisions. Oh, sure, I understand the holding and the way that the Court got there. That isn't a problem. But the dual decisions today set up burdens that no one could have anticipated, established rules that are opaque and used history in ways that the case establishing the so-called free speech rule never could have anticipated. Some of the court's discussion is downright murky. But before I get to some of these points, which I will in the next essay, let's lay out the issue and give the "easy" answer to the question of what the Supreme Court decided.

The Decisions, in Brief

The cases came out of Roseburg and Nyssa, respectively. In the former the owner of an adult-oriented business was convicted of violating, among other statutes, the Oregon law prohibiting promotion of a live sex show (ORS 167.062), while in the latter the owners of a nude dancing club were convicted of violating a local ordinance that required entertainers to remain at least four feet away from patrons when dancing nude. The convictions of both were affirmed by the Court of Appeals. On further review, the Oregon Supreme Court reversed both convictions. Thus, the bottom line is that the law prohibiting promotion of live sex shows and a city ordinance prohibiting naked dancers from coming closer than four feet from patrons are invalid.

In both cases the court decided that the Robertson framework, in place since 1983, must stand; that under that framework the activity at issue was "expression;" and, since there was no historical exception that applied to prevent the activity, the "expression" in each case was permissible.*

[*My essay laying out the issues in the case and explaining the Robertson frameowrk appeared in the Oct. 2003 issue of the Bulletin of the Oregon State Bar.]

The Way the Court Decides Free Speech Cases

Normally when free speech cases such as these are presented, the appellate courts go through the following exercise. They will look at the behavior that is being prohibited and ask the question of whether that behavior is essentially expression or conduct. If it is more like the former than the latter, the analysis can go one of two directions, but it will be hard for a person to be convicted of anything if the court makes the determination that the activity is essentially expression. If it is more like the latter (conduct), the court can easily find violations of law, because issues of free speech are not implicated.

Once a court determines that expression is at issue in a case, the court will follow either the Robertson trail or the Priest trail. These are cases decided by the Supreme Court, the former in 1983 and the latter in 1992. This can get very confusing because the Robertson case gave a framework for understanding Art. I, sec. 8 of the Oregon Constitution, while the Priest case, nine years later, gave an approach to all Oregon constitutional adjudiction. But the methods are not the same, even though straight lines emanating from both of them in the same plane will become tangent before they reach infinity (oops, sorry for the math reference).

If the court follows the Robertson analysis, it will ask if the statute or regulation attempts to curtail the expression itself or only the effects of the expression. In other words, is the prohibition targeted at expression itself or not? If it is targeted at expression, the activity is almost always sacrosanct, though there is one exception, mentioned below, which would render the activity illegal. If the court decides to use the Priest analysis, it will consider the framers' intent in shaping the constitutional provision, focusing on the language of the constitutional provision, the case law interpreting the provision and the historical context of the period surrounding acceptance of the original text.

Let's return now to the exception that will be considered under the Robertson framework. As I said, if pure speech or expression is in view and the court uses the Robertson framework, the only way that such a law prohibiting this expression may be upheld is if there was a so-called "historical exception." This means that if the activity in question would have been something that was prohibited by the Founders when they wrote the Oregon Constitution, even though they had a very broad free speech provision in the Constitution (Art. 1, sec. 8), then that activity could be prohibited today. The examples given in the Robertson decision are crimes such as fraud or bribery, which were "speech" crimes before the Oregon Constitution in 1857 and which were not displaced by the free speech provision of that constitution.

Then, after going through all this analysis, you supposedly get your decision. It all comes out, clean, pressed and folded, and you have your Oregon free speech jurisprudence. And, in general, the Ciancanelli and Nyssa cases followed this approach (but which approach, Priest or Robertson is a good question). However, in getting to the final result they set up so many hurdles and rough spots, it was like Don Cheadle trying to drive a car through the Rwandan outback in "Hotel Rwanda." Well, you have to go to the next essay to get the advanced treatment of the issue.

1353