free speech in oregon and ciancanelli and city of nyssa

One of the things I learned quickly when I became a college teacher more than 20 years ago was that the length of time a student had to write a paper was sometimes inversely proportional to the quality of the written product turned in. The Oregon Supreme Court amply confirmed that lesson in these two cases. They took more than 22 months to put them together, and they leave us with a product that will probably send practioners scratching their heads. To be sure, the holdings are clear: the Robertson framework is intact, Ciancanelli's conviction for promoting live sex shows is reversed on free speech grounds (even though Ciancanelli could be convicted under a law of promoting prostitution because money was exchanged for the live sex shows), and the City of Nyssa can't pass an ordinance keeping patrons four feet away from nude dancers. The courts seems to have put the Robertson framework on such a high pedestal that even Simeon Sylites would have been envious.

The purpose of this and the next essay is to do two things--to point out a few places where I was unsure what was going on in the Ciancanelli opinion and to tell those who would like to put limits on naked dancing or other sex-related businesses in Oregon that there still may be avenues you can take to limit this kind of "free expression."

Bill Stymied

Let me just run through a few things that confuse me. First is the Priest/Robertson problem. The issue has to do with how the Supreme Court will read the Oregon Constitution. The Robertson decision (1983) just made an assertion of what Art. 1, sec. 8 meant, with no historical resarch to back it up. The Priest decision (1992), in contrast, laid out a three-part method for dealing with issues interpreting the Oregon Constitution. Since Robertson is the precedent for interpreting I.8, but Priest, with a different method, is the way the Court interprets any Constitutional provision, how do they interrelate? I don't know. And, the Court seemed to suggest that Priest gives us the "paradigm" but Robertson gives us the "framework." I think I need some help here. The Robertson framwork therefore becomes authoritative when it is considered in the context of the Priest paradigm, but it seems like we have mysteries within enigmas here.

Second is the test in Robertson itself. In Robertson (1983), the court didn't do a historical reading of the free-speech provision. Justice Linde, who really isn't a historian of Oregon law, simply declared that all laws in Oregon tending to limit free expression would be disallowed unless they were shown to be things prohibited at the time the Oregon Constitution was approved and they were things that the framers "demonstrably" (whatever that means) wanted to disapprove also. (By the way, he has a terrible habit of writing with double negatives that sometimes make his prose impenetrable.) What happened is that these words, spoken by a non-historian about history, have tended to become a "test" for the Oregon Supreme Court, also amply peopled by non-historians, to apply to subsequent cases. The problem is that if Linde thought he was setting up a historical "test" (and he had told me he doesn't think he was), he really wasn't. He was setting up a historical impossibility. He was, as it were, setting the high jump bar at 7' at a junior high track meet and then wondering why no one can clear the height.

In order to get a real historical exception to pass the literal wording of the "Linde test" (which really ought to be abandoned), one would have to make the founding Oregon generation into students of philsophy, history and legal theory, with mobile libraries of all the classics at their disposal and who, upon coming to the Oregon Constitutional convention, unloaded their Blackstone, Grotius, Puffendorf, copies of 20 or so state constitutions, several state statutory collections, reported decisions of numerous state courts, Story's and Kent's Commentaries and a host of other sources that they had digested, meditated upon and were ready to apply to the task of constitution-making in Oregon. What is wrong with this picture? Only everything. Nevertheless, that is the world in which you have to operate if you want to try to take the "Linde test" literally. Read the Ciancanelli decision. I dare you. See if you can figure out where it is going, especially in the last few pages before the DeMuniz dissent. Take that back. The discussion is clear, but of questionable relevance, for much of the opinion, but the attempt to "apply" it to Robertson is mystifying.

Talking Past Each Other

Third, people talk past each other in the decision. I will only give two examples of this. In one case, the Supreme Court chides the Court of Appeals for not dealing with the proper historical question. Anyone who has read the Court of Appeals decision in Ciancanelli knows two things: you can disagree with it because you feel that its citation to precedent is not valid, but you can't really maintain (as the Supreme Court tries to do) that the appellate court didn't raise the right questions. There may be more than a little personal pique here at stake, since the author of the Court of Appeals decision also has been critical of some of the Supreme Court's rules of statutory construction. So, the court takes him to task in the opinion, without, of course, naming him in the text of the opinion.

Second, the Supreme Court chides the state for not giving the appropriate "showing" to overcome the Linde test in Robertson. As if the state didn't know what it was doing. They have been working on this issue for 20 years; that they don't know what they need to "show" is almost preposterous. But listen to how the court lays out the "burden" on parties who want to overcome Robertson.

Well, let's do this "listening" in the next (and last, I promise) essay.

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