Arrested development: an analysis of the Oregon Supreme Court's free speech jurisprudence in the post-Linde years.

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Arrested development: an analysis of the Oregon Supreme Court's free speech jurisprudence in the post-Linde years.

INTRODUCTION

On January 31, 1990, Justice Hans Linde retired from the Oregon Supreme Court.(1) Already a nationally recognized leader in state constitutional adjudication when first appointed to the court,(2) Linde achieved a level of notoriety as a jurist unrivaled by all but a handful of his contemporaries.(3) A tenacious arguer, prolific writer, and brilliant theorist, Linde left an indelible mark upon the Oregon Supreme Court during his thirteen years on the bench, particularly with regard to free speech jurisprudence.(4)

Justice Linde's jurisprudential approach to analyzing questions of free speech has been accurately described as having two "central commitments."(5) First, Linde sought to emphasize that in fashioning legislation implicating constitutional protections of free speech, legislators should focus on "the harms they seek to prevent rather than simply attempting to prohibit certain kinds of speech."(6) He reasoned that if lawmakers are "allowed to strike against `words' as well as `actions,' they may use subsequent judicial determination of infringement of individual rights to outlaw not only disfavored actions, but also the advocacy of disfavored actions."(7) By concentrating on the effects of speech, not speech itself, the possibility of infringing upon constitutionally protected rights would be minimized.(8)

Second, Justice Linde advocated an "absolutist" position, theorizing that constitutional freedom of speech guarantees are so sacred, legislative bodies should be prohibited from enacting laws abridging them.(9) He maintained that free speech protections run "against the government," effectively precluding not only legislative prohibitions on free speech, but judicial attempts to reconcile such efforts by "balancing" the interests of the government against the rights of its citizens.(10) Opposed to the balancing approach of constitutional adjudication, Justice Linde proposed an alternative methodology that provides a "logical sequence to be followed in analyzing whether state or local governmental action is lawful."(11)

Justice Linde's proposed method of analysis was essentially adopted by the court in its landmark 1982 decision, State v. Robertson.(12) Further developed and refined throughout the decade,(13) the Robertson "framework" provides the methodology by which the court assesses questions implicating article I, section 8 of the Oregon Constitution, the state's free speech clause.(14) Under the framework's maxims, the Oregon Supreme Court dramatically expanded the scope of the freedom of speech under the state constitution.(15) The court's success in this regard was well recognized by the legal community.(16) By the close of the decade, one commentator went so far as to state: "The Oregon Supreme Court has come closer to putting into practice the ... absolutist view of the First Amendment [free speech protections] than any other institution in American life."(17) Such praise was directly attributable to Justice Linde.

This High Court Study(18) will explore trends in the Oregon Supreme Court's free speech jurisprudence in the decade since Justice Linde retired from the bench. Accordingly, only case law between 1990 and 1999 will be substantively analyzed. Part I discusses the structure of the Oregon Supreme Court and offers insight into the individual justices, including terms served, political affiliations, and philosophical views.(19) Part II examines case law regarding the two principal sections of the Oregon Constitution implicating freedom of speech--article I: section 8, which generally guarantees free speech,(20) and article IV, section 1, which extends additional constitutional speech protections to those engaged in voter initiative activities.(21) Only divided cases with separate opinions are analyzed, as these decisions best reflect and reveal an individual justice's philosophy.(22) Finally, this Study concludes that while the Oregon Supreme Court has not expressly retreated from Justice Linde's "absolutist" view of constitutional free speech protections, a majority of the justices appear to favor a more restrictive jurisprudential approach.(23) Accordingly, the court as a whole has largely failed, or simply declined, to advance safeguards for the freedom of speech under the Oregon Constitution during the last decade.(24)

I. THE SUPREME COURT OF OREGON

A. The Court

The Oregon Supreme Court is created and its role defined by article VII of the Oregon Constitution.(25) The court is composed of seven justices elected by a nonpartisan statewide ballot to serve six year terms.(26) Elections tend to be staggered, therefore it is unlikely for a majority of the justices to be up for re-election in the same year.(27) In the event that vacancies arise on the bench, the governor is empowered to appoint replacements, whose terms expire upon election of permanent successors.(28) Not surprisingly, justices appointed to fill interim vacancies on the bench tend to run...

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