Moser v. Frohnmayer , 315 Or. 372 ( 1993 )

PETERSON, J.

Article I, section 8, of the Oregon Constitution, provides that “[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever.” The issue in this case is whether a law that prohibits the use of any “automatic dialing and announcing device to solicit the purchase of any realty, goods or services,” ORS 759.290, violates Article I, section 8.

Plaintiff operates a chimney sweep business. He uses an automatic dialing and announcing device to solicit customers. He brought this action seeking a declaratory judgment that ORS 759.290 violates Article I, sections 8 and 20, of the Oregon Constitution, and the First and Fourteenth Amendments to the Constitution of the United States. ORS 759.290 provides in part:

“(1) No person shall use an automatic dialing and announcing device to solicit the purchase of any realty, goods or services.

“(2) Subsection (1) of this section does not apply to:

“(a) The solicitation for funds by charitable or political organizations or institutions.

* * * jfi

“(3) As used in this section:

“(a) ‘Automatic dialing and announcing device’ means equipment that dials programmed telephone numbers and plays a recorded message when the call is answered.”

The trial court granted summary judgment to defendants, and the Court of Appeals reversed, holding that ORS 759.290 violates Article I, section 8, of the Oregon Constitution. Moser v. Frohnmayer, 112 Or App 226, 829 P2d 84 (1992). We affirm the decision of the Court of Appeals.

We address state law claims first. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983). Article I, section 8, forbids lawmakers from passing any law that “restraints] the free expression of opinion, or restrict^] the right to speak, write, or print freely on any subject whatever.”

“[Article I, section 8,] 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.” State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982)¹

We first consider whether the use of an automatic telephone dialing and announcing device that uses a recorded message is speech, within the meaning of Article I, section 8. The spoken word is our most popular and, to date, most significant form of communication. Newer forms of transmitting communications have arisen in the last 200 years. The telegraph (Cook, Wheatstone, Morse, 1837) enables people to communicate messages through an electrically charged wire by using a coded sound system. The telephone (Bell, 1876) carries the sound of one’s voice through electrically charged wire. Radio (Marconi, 1895) carries signals through the air that may be received and transformed, by electronic means, into the sound of voices.

Audio recordings enable people to record their voices in another medium that may be replayed virtually anywhere. Most recently, people communicate with computers by voice, and computers replicate the human voice by technologically simulating its sound.

The Oregon Constitution protects communication by one person to another in words, whether that communication is by face-to-face speech, by person-to-person voice communication through wires or through the air, or by the computerized simulation of spoken words. The fact that one’s means of expression is by a recording or simulation of one’s voice does not alter its essential nature — speech.

ORS 759.290 properly may be viewed in several ways. Under the statute, automatic dialing and announcing devices legally may be used to transmit any message, except messages that are a commercial attempt to sell realty, goods, or services. In this respect, it restricts expression because it is directed at a specific subject of communication, excluding some speech based on the content of the message. ORS 759.290 also contains a manner restriction (a limitation on telecommunication by automatic dialing and announcing devices but not by other means) and a classification restriction among users of telemarketing equipment (distinguishing between charitable and political entities, on the one hand, and all others).

Even though ORS 759.290 limits the substance of a subject of communication, it might nonetheless survive an Article I, section 8, challenge, if it 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.” State v. Robertson, supra, 293 Or at 412; In re Lasswell, 296 Or 121, 124, 673 P2d 855 (1983). In State v. Henry, 302 Or 510, 515-25, 732 P2d 9 (1987), this court discussed what evidence is necessary to establish an historical exception. The court held that the “party opposing a claim of constitutional privilege” has the burden of demonstrating that a restriction on speech falls within an historical exception. Id. at 521. This is a heavy burden, “because the constitutional guarantee of free speech and press will not be overcome by the mere showing of some legal restraints on one or another form of speech or writing.” Ibid.

Henry states: ‘ ‘The first part of the Robertson test for determining whether a restriction on expression comes within an historical exception focuses on whether the restriction was well established when the early American guarantees of freedom of expression were adopted * * *.” Id. at 515. The second part of the Robertson test determines whether Article I, section 8, was intended to eliminate that restriction. Id. at 521.

The Henry court found that restrictions on “obscene expressions were not well established at the time the early freedoms of expression were adopted.” Id. at 520. In addition, although pre-constitutional statutes made the possession of obscene materials that tended to corrupt the morals of youths a crime,² the court found this insufficient to establish that “obscenity” fell within an historical exception to Article I, section 8. In reaching that conclusion, the court stated:

“The territorial statute * * * certainly does not constitute any well-established historical exception to freedom of expression and that statute is in no way the equivalent of statutes punishing libel, perjury, forgery and the like.” Id. at 522.

Defendants point out that commercial advertisements or solicitations historically were not protected by the First Amendment; from this they argue that there must have been an historical exception permitting states to limit commercial speech. They cite Valentine v. Chrestensen, 316 US 52, 62 S Ct 920, 86 L Ed 1262 (1942) (holding that a constitutional right to distribute commercial handbills cannot be acquired by printing protected speech on the reverse side); Packer Corp. v. Utah, 285 US 105, 52 S Ct 273, 76 L Ed 643 (1932) (holding that regulation of commercial advertising did not violate federal equal protection); and Williams v. Arkansas, 217 US 79, 30 S Ct 493, 54 L Ed 673 (1910) (same).³ According to defendants, the significance of those cases is that, until Valentine v. Chrestensen, no one even argued that advertising or commercial solicitations were protected speech. This demonstrates, defendants argue, that it was well established that such speech was not subject to First Amendment protection.

Defendants contend that Oregon jurists shared the same understanding. State v. Hollinshead, 77 Or 473, 151 P 710 (1915), upheld a statute that made it a misdemeanor for any person to advertise a cure for sexual dysfunction or disease. In Semler v. Oregon Dental Examiners, 148 Or 50, 34 P2d 311 (1934), aff'd, 294 US 608, 55 S Ct 570, 79 L Ed 1086 (1935), this court upheld a law prohibiting certain advertising by dentists. Defendants argue that, even though Article I, section 8, was not involved in Hollinshead and Sender, the decisions are evidence that, historically, advertising and commercial solicitation were excepted from Article I, section 8, protection.

In effect, defendants are contending that, because no one had, before those decisions or incident to those decisions, asserted that commercial solicitations are subject to Article I, section 8, protection, such solicitations are not subject to Article I, section 8, protection. The cases cited by defendants lend little support to the notion that restrictions on advertising or commercial solicitations were well established when the “first American guarantees of freedoms of expression were adopted.” State v. Robertson, supra, 293 Or at 412. As in State v. Henry, supra, defendants have not established an historical exception. ORS 759.290 does not fit within an historical exception.

Defendants also assert that the legislature can regulate solicitations and that ORS 759.290 is a permissible regulatory statute. They argue that, if a law is directed at secondary or invasive effects of communicative activity, government is not precluded from recognizing an exception for political or charitable speech without making the same exception available to commercial advertisers. Defendants rely on City of Hillsboro v. Purcell, 306 Or 547, 556, 761 P2d 510 (1988), in which this court struck down an ordinance that prohibited all door-to-door solicitations. The Purcell opinion states that “[a] city may yet choose to regulate, rather than totally proscribe, door-to-door solicitations.” Ibid. In a footnote, the court stated that “the First Amendment would forbid an all-out ban on door-to-door solicitations by charitable, religious or political groups.” Id. at 555 n 7 (citing Schaumburg v. Citizens for Better Environ., 444 US 620, 100 S Ct 826, 63 L Ed 2d 73 (1980)). Defendants contend that this footnote suggests that the ordinance in Purcell was held overbroad because it prohibited all solicitations, including political and charitable solicitations. Defendants further contend that, because ORS 759.290 exempts only solicitations by “charitable or political organizations,” this statute is valid.

The Purcell decision does not control this case. That opinion expressly pointed out that the city ordinance there involved “does not by its terms prohibit speech.” 306 Or at 555. The statute here involved does.

4. A statute may be valid if “the focus of the enactment, as written, is on an identifiable actual effect or harm that may be proscribed, rather than on the communication itself. ” In re Fadeley, 310 Or 547, 576, 802 P2d 31 (1990) (Unis, J., dissenting) (summarizing the holdings of State v. Moyle, 299 Or 691, 695, 705 P2d 740 (1985), and City of Portland v. Tidyman, 306 Or 174, 188, 759 P2d 242 (1988)); accord State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992); State v. Robertson, supra, 293 Or at 416-17. To be valid as a law that focuses on a harmful effect of speech, the law must “specify expressly or by clear inference what ‘serious and imminent’ effects it is designed to prevent. ’ ’ Oregon State Police Assn. v. State of Oregon, 308 Or 531, 541, 783 P2d 7 (1989) (Linde, J., concurring) (quoting In re Lasswell, supra, 296 Or at 126), cert den, 111 S Ct 44, 112 L Ed 2d 20 (1990); accord City of' Portland v. Tidyman, supra, 306 Or at 188 n 12.

In State v. Plowman, supra, this court upheld, against a challenge under Article I, section 8, a statute that made it a crime for two or more persons, acting together, to “[intentionally, knowingly, or recklessly cause physical injury to another because of their perception of that person’s race, color, religion, national origin or sexual orientation.” ORS 166.165(l)(a)(A). The statute involved in Plowman was upheld because the law did not punish the expression of opinion; it “proscribes a forbidden effect.” 314 Or at 165. ORS 759.290 proscribes a type of communication rather than identifying a forbidden effect. It is directed at speech itself, not toward the prevention of an identified actual effect or harm.⁴

If the legislature identifies harmful effects of automated telephone solicitations that may be proscribed, it must proscribe those effects by enacting a law that identifies and focuses on those effects. State v. Plowman, supra, 314 Or at 164; In re Fadeley, supra, 310 Or at 574-78 (Unis, J., dissenting). This is not such a law.⁵

ORS 759.290 is therefore invalid under Article I, section 8. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed.

1 Laws also may violate Article I, section 8, if they either (1) focus on forbidden effects, “but expressly prohibitO expression used to achieve those effects,” or (2) focus on forbidden effects without referring to expression, but nonetheless cannot be constitutionally applied without interfering with one’s rights of free expression. State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992). See also In re Fadeley, 310 Or 548, 574-78, 802 P2d 31 (1990) (Unis, J., dissenting) (setting forth a method of analysis to determine whether a statute is constitutional under Article I, section 8, of the Oregon Constitution).

2 Chapter 11, section 10, of the Oregon Territorial Code of 1853 (“Steamboat Code”).

3 Since Valentine v. Chrestensen, supra, the Supreme Court of the United States has recognized that commercial speech is protected under the First Amendment if it concerns a lawful activity and is not misleading. Board of Trustees, S.U.N.Y. v. Fox, 492 US 469, 109 S Ct 3028, 106 L Ed 2d 388 (1989). A regulation of commercial speech will survive First Amendment scrutiny only if the regulation directly advances a substantial governmental interest and is not more extensive than necessary. This is a lesser level of protection than is applied to so-called “core” First Amendment speech. 492 US at 480.

4 Plaintiff also asserts invalidity under Article I, section 20, of the Oregon Constitution, and under the First and Fourteenth Amendments to the Constitution of the United States. Because of our holding that the statute violates Article I, section 8, we need not, and do not, decide those issues.

5 We note the Telephone Consumer Protection Act of 1991. 47 USCA § 227 (1991). This federal statute and its accompanying federal rules became effective on December 20, 1992, and, in essence, regulate “commercial telemarketing solicitations” using an “automatic telephone dialing system” to call residences. 47 CFR § 64.1200(a)(2); 47 CFR § 64.1200(c)(1). Our decision considers these federal laws only for the limited purpose of determining whether the laws render this appeal moot. This case is not moot, because the federal rules are not as broad as ORS 759.290, which prohibits such calls to both residences and businesses.