Chapter § 3.3

• Jurisdiction: Oregon

§ 3.3 BASIC ANALYSIS

The genesis of the modern construction of Article I, section 8, of the Oregon Constitution is found in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Any lawyer seeking to understand and apply Article I, section 8, must be familiar with that case. The Robertson analysis categorizes laws as falling within one of three levels or categories. In re Validation Proceeding to Determine the Regularity & Legality of Multnomah County Home Rule Charter Section 11.60, 366 Or 295, 301-03, 462 P3d 706 (2020); State v. Babson, 355 Or 383, 393-94, 326 P3d 559 (2014); Vannatta v. Oregon Government Ethics Commission, 347 Or 449, 455-56, 222 P3d 1077 (2009) (Vannatta II), overruled in part as stated in Couey v. Clarno, 305 Or App 29, 469 P3d 790 (2020), rev den, 479 P3d 277 (2021); City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994); State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992), cert den, 508 US 974 (1993). Those categories focus on the terms in which the law in question is written and whether those terms refer directly to expression. See § 3.3-1 to § 3.3-3.

§ 3.3-1 Laws Focusing on the Content of Expression

At the first level of the analysis set forth in Robertson, 293 Or at 412, are laws that "focus on the content of speech or writing" or are "written in terms directed to the substance of any opinion or any subject of communication." Miller, 318 Or at 488 (internal quotation marks omitted); Plowman, 314 Or at 164. Laws written in those terms violate Article I, section 8, "on their face" unless the scope of the restraint is confined within one of the few exceptions discussed in § 3.4-1 to § 3.4-3. Miller, 318 Or at 495.

To illustrate, imagine that the legislature sought to protect the Oregon Supreme Court from having to decide whether a claim of error on appeal was preserved in the trial court. The most direct way to write such a law would be to state: "Do not discuss preservation of error in the Supreme Court." That hypothetical law is quite obviously directed by its terms at the content of expression—discussions of preservation—because the statute's text specifies what speech is forbidden. That law would, therefore, be unconstitutional on its face unless it came within one of the exceptions (see § 3.4-1 to § 3.4-3). The same fate would await laws specifying certain disfavored words, rather than—as in the example above—general content, and making it a crime to utter them.

§ 3.3-2 Laws Focusing on Harms or Effects, but Directed...