Chapter § 1.1

• Jurisdiction: Oregon

§ 1.1 INTRODUCTION

Imagine that you are an attorney representing the proprietor of a so-called "adult entertainment" establishment in some Oregon city. Your client's establishment features, to put it bluntly, live sex shows. After local police authorities witness one of these shows, they arrest your client for violating an Oregon statute providing that "[i]t is unlawful for any person to knowingly . . . present a live public show in which the participants engage in . . . sexual conduct." ORS 167.062(3). At trial, you argue that the police have violated your client's rights under the First Amendment to the United States Constitution. You will lose; the United States Supreme Court has held that publicly performed sexual activity is not within the universe of constitutionally protected expression. Arcara v. Cloud Books, Inc., 478 US 697, 705, 106 S Ct 3172, 92 L Ed 2d 568 (1986).

That is the bad news for your client. The good news is that your client will undoubtedly prevail in a postconviction proceeding alleging inadequate assistance of counsel, and thereafter your client might even prevail in a malpractice action against you. That is...