Chapter §18.2 INTERPRETIVE METHOD

• Jurisdiction: Oregon

§18.2 INTERPRETIVE METHOD

To determine if a law violates Article I, section 26, of the Oregon Constitution, Oregon courts have used the analysis developed in the "closely associated" free-expression provision of the Oregon Constitution: Article I, section 8. State v. Illig-Renn, 341 Or 228, 236, 142 P3d 62 (2006). More case law has developed under section 8 than under section 26. See chapter 3 for greater detail on free-expression analysis.

Oregon interprets and applies its constitutional free-expression right in Article I, section 8, of the Oregon Constitution, independently of the First Amendment to the United States Constitution, in an entirely novel way. See Jack L. Landau, Hurrah for Revolution: A Critical Assessment of State Constitutional Interpretation, 79 Or L Rev 793, 840-53, 884-85 (2000). That method was seeded and has grown in several free-expression cases, particularly State v. Robertson, 293 Or 402, 649 P2d 569 (1982), and State v. Plowman, 314 Or 157, 838 P2d 558 (1992). For greater detail on the Robertson framework, see David Schuman, Using State Constitutions to Find and Enforce Civil Liberties, 15 Lewis & Clark L Rev 783, 788-96 (2011).

Robertson "'established a framework for evaluating whether a law violates Article I, section 8.'" Illig-Renn, 341 Or at 234 (quoting Plowman, 314 Or at 163-64). Laws focus on either (1) the content of speech or writing, or (2) forbidden results or effects. A law is focused on content if the law is "'written in terms directed to the substance of any "opinion" or any "subject" of communication.'" Illig-Renn, 341 Or at 234 (quoting Plowman, 314 Or at 164 (citations omitted)). A law focused on content violates Article I, section 8, unless the law falls within a historical exception. Illig-Renn, 341 Or at 164.

The second type of law, one that focuses on forbidden results or effects, has two subtypes. One subtype expressly prohibits expression used to achieve those effects; those laws are analyzed for overbreadth. The other subtype does not refer to expression at all, requiring a person to assert that the law cannot be applied to his or her particular expression, because the law cannot be challenged for facial overbreadth. Illig-Renn, 341 Or at 234-35. In other words, "in general" only statutes that "more or less expressly identify protected speech as a statutory element of the offenses that they define" may be attacked for facial overbreadth. Illig-Renn, 341 Or at 235-36.

NOTE: "A statute is unconstitutionally

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