Chapter §3.4 THE EXCEPTIONS

• Jurisdiction: Oregon

§3.4 THE EXCEPTIONS

§3.4-1 Historical

Article I, section 8, of the Oregon Constitution

forecloses the enactment of any law written in terms directed to the substance of any "opinion" or any "subject" of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.

State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982). Although the court stated this exception as applicable to first-level statutes, it obviously applies at all three levels. Expression such as perjury or fraud simply is not constitutionally protected. Consequently, even if a statute were directed by its terms at a harm or effect, such as subverting the course of justice, the statute would not be overbroad if it identified perjury as one way of accomplishing that effect. That is so because perjury is not protected, and a statute is not overbroad unless it attempts to restrict protected expression.

Even laws falling within well-established historic exceptions must be directed at preventing or remedying some effect or harm other than merely exposing the hearer to the expression in question. See, e.g., State v. Ciancanelli, 339 Or 282, 318, 121 P3d 613 (2005). The examples provided in Robertson pass that test because, for example, perjury— potentially, at least—subverts the justice system. On the other hand, even if it could be shown that well-established state and federal statutory or common law had prohibited, for example, blasphemous speech both before and after the enactment of the federal and state constitutions, a modern law prohibiting blasphemy would be unlikely to survive a constitutional challenge because the harm the statute prohibits is merely hearing the offending blasphemy, not some independent injury.

Very few laws have met this demanding test. In State v. Moyle, 299 Or 691, 700-04, 705 P2d 740 (1985), the court concluded that a statute prohibiting, among other things, certain forms of verbal harassment was within the historic scope of one aspect of the statutory and common-law proscriptions against disturbing the peace, after the court construed the statute to narrow its reach. Accord State v. Rangel, 328 Or 294, 977 P2d 379...