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

• Author: West, Michael

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)

1. THE SUPREME COURT OF OREGON

   1. 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 for and win permanent positions on the court.(29) Of the thirteen justices who served on the Oregon bench during the nineties, only three were elected without prior appointment.(30) Similarly, appointments tend to reflect the political philosophy of the appointing governor.(31) All of Oregon's governors since 1986 have been Democrats.(32) Each of the five justices appointed since then have also been registered Democrats.(33)

   2. The Justices

      Chief Justice Edwin J. Peterson steered the court through the early nineties.(34) A practicing attorney when first appointed to the court by Republican Governor Vic Atiyeh in 1979, Peterson was elected in 1980, and re-elected in 1986 and 1992.(35) While considered by some to have been "a conservative force on the court," Peterson was recognized more for his efforts to reduce the backlog of cases in the Oregon judicial system.(36) Some of his notable achievements included coordinating the integration of Oregon courts into a single system and promulgating a uniform set of trial court rules.(37) On September 1, 1991, Peterson stepped down from the position of chief justice.(38) He resigned from the court altogether on December 31, 1993, to concentrate on leading an effort to examine racial and ethnic bias in Oregon's judicial system.(39)

      Peterson's successor as chief justice was Wallace P. Carson, Jr.(40) Initially appointed by Governor Vic Atiyeh, Justice Carson was first elected to the court in 1982 and re-elected twice thereafter in 1988 and 1994.(41) Carson, a Republican, defeated fellow Justice George A. Van Hoomissen, a Democrat, in a secret ballot of the seven-member court to garner the chief justice position--which he continues to retain.(42) Once described as "a mild-mannered Mr. Nice Guy," Carson was quite possibly awarded the chief justice position precisely because of his affable nature and ability to facilitate consensus among the divergent personalities on the bench.(43) Throughout the early nineties his "short but readable [majority] opinions" were considered by commentators to be evidence of a traditional, even-keeled judicial outlook.(44) Not surprisingly, Carson was the only justice on the court not to write a single dissent during the two and a half year period.(45)

      Much like Chief Justice Peterson before him, Chief Justice Carson placed a premium upon judicial efficiency, not only in the lower courts, but in the Oregon Supreme Court as well.(46) In 1993, for instance, in an effort to expedite the release of decisions, new internal rules were adopted by the court requiring dissenting justices to submit written opinions within a month of the completion of majority opinions.(47) Commentators suggested that this new rule was directed at "the most frequent dissenters, Justices Edward N. Fadeley and Richard L. Unis."(48) These dissenters were unquestionably the most intriguing personalities on the Oregon bench during the nineties.

      Justice Fadeley had been a fixture in Oregon politics for nearly thirty years--serving in each chamber of the Oregon legislature and running, unsuccessfully, as a candidate for Governor--before winning a seat on the Oregon Supreme Court in 1990.(49) An assertive arguer and self-styled "[o]Id-fashioned liberal,"(50) Fadeley was known by many as "a tenacious defender of the underdog" during his tenure on the bench.(51) Unfortunately, his judicial acumen was largely overshadowed by concerns over his unethical and "boorish" behavior outside the courtroom.(52) Fadeley was twice the subject of inquiry by his colleagues on the bench during the nineties.(53) In 1990, he was censured by his peers for personally soliciting campaign contributions in violation of the Code of Judicial Conduct.(54) In 1995, a judicial assistant accused Fadeley of sexual harassment, leading the Commission on Judicial Fitness and Disability to recommend removal from the bench.(55) The court conducted a formal hearing in September of 1997 to consider the commission's recommendation.(56) However, Fadeley was battling throat cancer at the time, and resigned late in the year, sparing the court from rendering what would likely have been a decision to remove him from the bench.(57)

      On January 30, 1990, Democratic Governor, Neil Goldschmidt, appointed Richard Unis, a former county circuit court judge, to fill the vacancy left by Justice Linde.(58) He ran unopposed in an election the following May to garner a full six year term.(59) In many ways, Unis became heir to Linde's legacy of commitment to judicial protection of civil liberties.(60) Known not only for frequent strong-willed dissents, but for a keen judicial acumen and dedication to the profession, Unis remains a favorite of commentators familiar with his work.(61) He declined a run for a second term, resigning from the court on June 30, 1996 to supervise a high profile legal settlement involving defective house siding.(62)

      While Fadeley and Unis provided legal commentators with much to talk about during their tenures on...