The issue to be decided is the constitutional validity of a statute creating and defining the crime of "coercion." Defendants were indicted under one subsection of the statute, ORS 163.275(1)(e), which makes it a crime to compel or induce another person to engage in conduct from which he has the legal right to abstain by causing him to fear the disclosure of discreditable assertions about some person.
The trial court sustained the demurrers. On the state's appeal, the Court of Appeals reversed, upholding the validity of the statute and the indictment by divided opinions first in a panel decision in State v. Robertson, 54 Or.App. 630, 635 P.2d 1057 (1981) and State v. Young, 54 Or.App. 681, 635 P.2d 681 (1981), and subsequently in banc, with three judges dissenting, in State v. Paige, 55 Or.App. 519, 638 P.2d 1173 (1981). Having allowed review and heard argument in the first two cases, we take account also of the opinions of the entire court in Paige.
I. The state's appeal.
There is a preliminary question whether the Court of Appeals obtained jurisdiction by the state's appeal. The circuit court in each case entered an order sustaining defendant's demurrer to the coercion count of the indictment, which was based "on the
Since the Deady Code of 1864, the statutes have required that upon considering a demurrer in a criminal case, "the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in the journal." ORS 135.660. For a century between that code and 1963, the state could appeal only from "a judgment for the defendant, on a demurrer to the indictment" or from an order arresting judgment. Act of Oct. 19, 1864, § 227, in Oregon Laws 1845-64, at 480. ORS 138.060 (1961 ed.) An order merely sustaining a demurrer was not appealable. State v. Cloran, 233 Or. 400, 374 P.2d 748 (1962), State v. Davis, 207 Or. 525, 296 P.2d 240 (1956). A 1963 amendment added an appeal from an order sustaining a plea of former conviction or acquittal; the existing reference to a "judgment for the defendant on a demurrer" was reenacted. 1963 Or. Laws ch. 385.
In 1968, the state attempted to appeal from a trial court order dismissing an indictment upon defendant's motion. This court dismissed the appeal because the order was not a judgment on a demurrer and therefore not within the list of appealable orders. State v. Sieckmann, 251 Or. 259, 445 P.2d 599 (1968). Thereafter the Department of Justice obtained an amendment which allowed the state to appeal from an "order made prior to trial dismissing the indictment." The amendment did not add these words to ORS 138.060; rather, they replaced the prior reference to an appeal from a judgment on a demurrer, removing the explicit basis for such an appeal. 1971 Or. Laws ch. 644. The statute was further amended in 1973 to add the words "setting aside" to "dismissing" and broadening "indictment" to "accusatory instrument," so that the relevant provision now reads: "The state may take an appeal from the circuit court or the district court to the Court of Appeals from: (1) An order made prior to trial dismissing or setting aside the accusatory instrument." ORS 138.060(1).
At the same time, the legislature enacted a new provision providing for dismissal of an accusatory instrument, ORS 135.470. The statutes now prescribe different grounds for demurring to an accusatory instrument, for "dismissing" such an instrument, and for "setting aside" an indictment.
The state's memorandum in response to this court's questions concedes that the statutes now do not expressly allow the state to appeal from an order or judgment on a demurrer "if the present Oregon criminal procedure statutes are read literally, with an insistence upon precise and uniform terminology, and with an incomplete appreciation of the history behind them." The state argues, however, that a proper appreciation of that history should persuade us not to limit ORS 138.060 literally to orders "dismissing" accusatory instruments. It contends that when the Department of Justice, after State v. Sieckmann, supra, induced the legislature to substitute "order ... dismissing the indictment" for "judgment for the defendant on a demurrer," the state did not mean to sacrifice its
Though the legislative history is sparse, it appears consistent with the department's version of the intended goal of the amendments.
II. The issues.
Although the defendant's demurrer alleged only that the crime charged in the indictment was "unconstitutionally vague," the Court of Appeals construed a supporting trial memorandum as having attacked the statute also as unconstitutionally "overbroad." As the court proceeded to decide the case on that basis, we accept its characterization of the memorandum. But we once again draw attention to the frequently misunderstood difference between the two constitutional claims. "Vagueness" and "overbreadth" of a law are not two alternative or cumulative epithets for the same shortcoming.
The rule against vague penal laws has been rested on various constitutional premises. In State v. Hodges, 254 Or. 21, 457 P.2d 491 (1969), this court suggested that abdication of the lawmakers' responsibility to define a crime to prosecutors, judges, or jurors in case-by-case adjudication allowed those charged with enforcing the law to make the law after the event:
254 Or. at 27, 457 P.2d 491, quoted in State v. Blair, 287 Or. 519, 522-23, 601 P.2d 766 (1979).
Moreover, the unfairness of "failure to notify potential defendants of [the law's] scope and reach" can constitute a denial of due process under the federal 14th amendment. See Lanzetta v. New Jersey, 306 U.S. 451, 59 S.Ct. 618, 83 L.Ed. 888 (1939). Recently in Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., ___ U.S. ___, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Supreme Court of the United States reaffirmed the constitutional objections to vague laws in terms much like those in our own cases, quoting from Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972):
Village of Hoffman Estates, supra, ___ U.S. at ___, 102 S.Ct. at 1193, 71 L.Ed.2d at 371.
"Overbreadth," however, is a different claim. It should be kept in mind that the terms "overbroad" and "overbreadth" are not themselves terms of the state or federal constitutions, any more than the terms "vague" or "vagueness"; they are only lawyers' phrases for shortcomings that are claimed to contravene other constitutional constraints. They have been used by different theorists and courts to mean different things and to carry different consequences. See Monaghan, Overbreadth, 1981 Sup.Ct.Rev. 1 (1981). In principle, however, a claim of "overbreadth" asserts that the terms of a law exceed constitutional boundaries, purporting to reach conduct protected by guarantees such as, for instance, Oregon Constitution, article I, section 8 (freedom to speak and write) or section 27 (right to bear arms). As this court recently stated in a case under section 27:
A claim of "overbreadth" cannot properly assert that the words of the law, read literally, are broader than the lawmaker intended, for that is an issue to be resolved by interpretation. A constitutional claim that the law as interpreted cannot be discerned from its terms once again is a claim of vagueness, not overbreadth. Again, the Supreme Court noted the tendency to confuse the arguments in Village of Hoffman Estates, supra, in which Flipside challenged an ordinance prohibiting the sale of paraphernalia designed for illegal drug use:
Village of Hoffman Estates, supra 102 S.Ct. at 1193, n. 9. The Court of Appeals correctly understood the distinction.
When a statute is attacked as vague, for failing to define and communicate its coverage, the statute sometimes can be saved by a judicial interpretation that gives it the required definiteness. It is the court's obligation to do so when this can be done without departing too far from what the legislature sought to accomplish or what the statute itself can convey to a reader. But when such a saving construction cannot be attributed to the legislature with reasonable fidelity to the legislature's words and apparent intent, the statute is invalid as enacted, and it is immaterial whether the particular case in which it is
A narrowing construction similarly may save a statute attacked as "overbroad," unless the constitutional guarantee invoked against the statute forbade its very enactment as drafted. Article I, section 8, for instance, forbids lawmakers to pass any law "restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever," beyond providing a remedy for any person injured by the "abuse" of this right.
III. The statute.
ORS 163.275 provides:
We turn to an examination whether the statute on its face is a law whose enactment was forbidden by article I, section 8, or if not, whether it either is impermissibly vague or written so broadly as potentially to reach communications that must remain free.
The Court of Appeals divided on the question whether ORS 163.275 is a law "restricting the right to speak ... freely on any subject whatever." The majority of the Robertson panel held that it was not. The panel distinguished State v. Spencer, supra, on the ground that "speech itself was the direct object of [the] disorderly conduct provision," whereas the coercion statute "is not directed at the act of communicating and in that respect is like any other criminal statute defining a crime, such as robbery, which may incidentally involve communication." In the subsequent decision in banc in State v. Paige, supra, the dissenters disputed that view of the statute:
55 Or. App. at 524, 638 P.2d 1173. The Paige majority disagreed with the dissent's statement that "the act of making the threat ... is the gravamen of the offense." It noted that "the offense of coercion is not committed until the victim acts." Because a threat of adverse consequences is not forbidden unless successful, the majority found that "[t]he making of the threat is not the basis of the offense, but only a manner of bringing it about." It therefore concluded that the coercion statute proscribes "not speech but conduct — the act of overpowering another's will." 55 Or. App. at 522, 638 P.2d 1173. The diverging premises touch some of the most difficult themes in the constitutional law of free speech.
In our view, it cannot be said that the coercion statute does not forbid speech. We agree that because the statute is directed in terms against the pursuit of a forbidden effect and not, like the disorderly conduct provision in Spencer, against forbidden speech as such, it is not a law whose enactment was for this reason alone wholly withdrawn from legislative authority by article I, section 8. But because speech is a statutory element in the definition of the offense, the statute is susceptible to attack for possible overbreadth.
Subsection (1) of ORS 163.275, which formulates the crime of "coercion," has two major parts. The opening clause defines the essence of the crime as compelling or inducing otherwise voluntary conduct by means of fear. The remainder of the sentence qualifies the definition by specifying the kinds of consequences which may not be threatened in order to compel or induce the demanded conduct.
The elements stated in the opening clause are (1) that the accused makes a demand upon another person, (2) that the addressee otherwise is legally free to choose whether to engage in the demanded conduct, (3) that the accused puts the addressee in fear of one of the specified adverse actions by the accused or someone else if the demand is not met, and (4) that this fear compels or induces the addressee to comply with the demand. In view of the last element it is accurate, as the Paige majority said, that the offense is not committed until the victim acts. But this does not demonstrate that the statute is not directed against speech.
The offense presupposes a "demand" by the defendant, which means a communication in words or otherwise; and as a practical matter, if not as a logical necessity, the legislature no doubt also assumed that the impelling fear will be instilled by speech or its equivalent. If the victim acts in fearful anticipation without any demand, the definition of coercion is not met. The demand, the fear-instilling communication of a specified consequence of noncompliance, and the fear-induced compliance all are essential; the crime is not made out if the addressee, though frightened, does not comply or if he acts for reasons independent of the demand or the threat. The challenge under article I, section 8, therefore cannot be dismissed simply by saying that the statute forbids an "act" rather than "speech." That distinction could be helpful if a law proscribed threatening gestures or other intimidating acts, or if it became necessary to differentiate between the communicative content and the noncommunicative means of proscribed expression. But speech often would be the offender's only act in committing this crime. Indeed, the statute leaves it immaterial whether an accused or another person had either the intent or the capacity to carry out the threatened consequences; a successful bluff seems to suffice.
There is an intrinsic, though not insurmountable, paradox of overbreadth analysis. If a law is invalid whenever it literally could be applied to restrict free expression, there seemingly will never be occasion to hold that a valid law was unconstitutionally applied in a particular case. In practice the
289 Or. 225 at 229, 611 P.2d at 1149. The statute invalidated in Spencer prohibited "abusive or obscene language, or ... an obscene gesture, in a public place" if intended to cause "public inconvenience, annoyance or alarm," whether or not the language or gesture in fact did this. If that statute had been directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.
To this extent, the Court of Appeals correctly distinguished State v. Spencer. The coercion statute is written so as to focus on a forbidden effect — the effect of frightening another person into a nonobligatory and undesired course of conduct. But the statute continues by specifying that the compulsion or inducement may not be imposed in aid of a "demand," and by means of specified verbal warnings or threats. We do not suggest that ORS 163.275 would be a better penal statute if it ended before the specification of means; as already stated, legislative attention to the reach of a penal law is a major object of the rule against vagueness. When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect, as ORS 163.275 is, must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such "overbreadth."
IV. The apparent reach of the coercion statute.
A notable characteristic of ORS 163.275 is that it requires neither the conduct demanded of the victim nor the action threatened in case of refusal to be wrongful. It therefore does not fit into the constitutional analysis of solicitation, conspiracy, advice, or other verbal participation in another's criminal act, nor is it confined to threats of crimes or torts against an uncooperative victim, as in a robbery or rape. Only one item among the threatened consequences listed in ORS 163.275(1) assumes illegality, the catch-all item (c), "other conduct constituting a crime." It is not contended that the word "other" in item (c) implies that
This spacious coverage offers tempting opportunities for an "overbreadth" attack on the statutory text, limited only by the imagination of court and counsel. This is particularly true of ORS 163.275(1)(e), supra, dealing with threats to expose or publicize some asserted fact that would tend to subject some person to hatred, contempt, or ridicule, under which the present charge was brought. Thus defendants posited situations in which one man tells another: "If you don't quit making love to my wife, I'm going to tell your wife," or someone proposes to disclose an airline pilot's secret illness if he does not get medical attention, or a politician's embarrassing past if he does not withdraw his candidacy from office. The dissenters in the Court of Appeals added illustrations in which a journalist advises a public official that he will disclose private facts showing an official's financial interest in a pending measure if the official does not refrain from voting on the measure, or in which "one appellate judge might tell another, `Change your opinion, or I shall dissent and expose your complete ignorance of this area of the law.'" 55 Or. App. at 524, 638 P.2d 1173 (Gillette, J., dissenting). Indeed, they might have added that a prosecutor's plea-bargaining attempts to induce a defendant to plead guilty to one charge in order to avoid prosecution on other charges literally violates ORS 163.275(1)(d).
Some of the examples, particularly hypothetical statements addressed to minors or to family members, are offered to show that the legislature could not possibly have meant to outlaw them, but that is not to the point. The question of overbreadth is not even whether the statute covers situations in which the actual disclosure would be privileged expression, but whether the hypothetical demand backed by the threat of such a disclosure would be so privileged. The examples of such demands drawn from a political context and involving consequences directly relevant to the demanded act plainly would be an exercise of free speech or writing.
The answer cannot be simple. The first difficulty lies in the search, not for an interpretation of ORS 163.275, but for the principles that the interpretation must preserve. Judicial and academic analyses of the principles governing freedom to make demands coupled with threats have been sparse and inconclusive, perhaps because these elements characterize the traditional domain of robbery and extortion of money by threats of bodily harm. Although the feared reaction of others underlies much inducement to desired conduct throughout social institutions, from family and schools to consumer advertising, a civilized legal system may choose to protect individual autonomy of choice against many kinds of compulsion, if its rules of civil or criminal liability remain within constitutional bounds. Yet some demands obviously are in the realm of free speech, as are warnings of the intended sanctions for noncompliance. It is easy to extend the political examples to others from academic, cultural, or religious settings and beyond.
Principles for a free speech analysis of demands combined with threats might be sought in various elements of the combination, such as (1) the lawfulness or unlawfulness of the demanded conduct; (2) the lawful, unlawful, or constitutionally privileged nature of the threatened conduct; (3) the objective and the motive of the person making the demand; (4) the relationship between the parties to the demand or between the parties to the threatened consequences; (5) the relevance of the threatened consequences to noncompliance with the demand. Additional variables might be (6) the means of expression employed in the demand or the threat, (7) the likelihood and imminence of the threatened acts, or (8) other distinctions in the social setting or function of the demand. We turn to an examination whether one or a combination of these variables explains such precedents as exist on the constitutional question.
V. Extortion, intimidation, and coercion in the courts.
The classic form of protection against being compelled by threats to give up what one is under no obligation to yield is found in the long-established laws against black-mail
Theft by extortion, as there defined, itself represents a significant extension of robbery by threat insofar as it includes threats of future actions that would not be unlawful or tortious if carried out. The kinds of threatened consequences required for theft by extortion, listed in ORS 164.075(1)(a) — (i), are identical to those for coercion listed in ORS 163.275(1)(a) — (i), above. The two offenses differ only in that theft by extortion consists in unlawfully compelling another to part with property. Conceivably
Courts have been able to avoid this question when the charge before the court was extortion in the narrower sense stated above. In Carricarte v. State, 384 So.2d 1261, (Fla.) cert. den., 449 U.S. 874, 101 S.Ct. 215, 66 L.Ed.2d 95 (1980), a Florida court was faced with an "overbreadth" claim when a lawyer was charged with extortion for telling a real estate developer that if the developer would not employ him, he would attempt to stop the development, organize and represent opponents of the project, and cause newspaper articles to be published against it. Beginning with premises much like those we have set out above, the court sustained the charge over defendant's objection that he would have been constitutionally privileged in carrying out the alleged threats.
Thus these decisions sustained extortion statutes on the basis that the forbidden threats were used simply to gain something of personal benefit to the threatener in a bilateral transaction. In each case, however, another element could be relevant to the result. In the Florida case, the lawyer's demand for employment was independently unlawful as a forbidden solicitation of legal business. Carricarte v. State, supra, 384 So.2d at 1263-64. In State v. Felton, supra, the police officer's threat to arrest the victims if they did not comply with his demands, but not otherwise, no doubt was an unlawful abuse of his authority analogous to the original common law crime of official extortion, supra note 16. This leaves some doubt whether the analysis in these cases would have been the same if the threateners' conduct had not been unlawful apart from their use of threats to obtain personal objectives.
Lacking the element of a self-seeking objective that characterizes blackmail or extortion statutes, on the other hand, a federal district court relied only on this second element, the independent unlawfulness of
These and other opinions characteristically start from the conduct charged in the particular case rather than from hypothetical applications that are presented to show the overbroad reach of the challenged statute. Potential overbreadth is faced more squarely when a statute is attacked outside the context of a specific prosecution, so that there is no concrete charge under the statute to be tested for constitutionality. This is apparent in another case that produced a far more searching examination of the constitutional status of "intimidation," though also conducted under a federal court's view of the federal first amendment without reference to a state guarantee such as article I, section 8.
Landry v. Daley, 280 F.Supp. 938 (N.D.Ill. 1968) was a class action brought on behalf of "the class of all negroes in the City of Chicago" as well as individual and organizational plaintiffs which attacked, among other statutes, an Illinois "Intimidation Statute" under which no plaintiff then faced prosecution. The statute declared one guilty of "intimidation" when
one of various acts somewhat similar to those listed in ORS 163.275. Ill. Rev. Stat. ch. 38, § 12-6 (1979). Plaintiffs claimed that this statute could be construed so as to punish them for threatening to engage in "direct action and protest activities" against racial discrimination. 280 F. Supp. at 960.
First, the court assumed, with some misgivings, that "threats" are not constitutionally protected expression if the character, intent, and circumstances of the threat are narrowly circumscribed.
In sum, the Landry court proceeded on the premise that the Illinois law could validly prohibit "threats" if it was construed to require that a threat be realistic in circumstances and intent and that the threatened action would be unlawful if executed. Even this was qualified, however. The paragraph of the Illinois law that referred expressly to threats "to commit any criminal offense" proved to be the one provision that the court invalidated as overbroad. The court did so on the ground that although the state might have valid reasons to penalize even petty offenses if actually committed, these reasons would not always justify punishing a threat to act in the forbidden manner, for instance to block a street, to carry a concealed weapon, or to engage in disorderly conduct. 280 F. Supp. at 964. Thus the Landry opinion concluded that the statute validly proscribed only "threats" of independently wrongful conduct, and then only if limited so as to exclude minor or relatively inconsequential wrongdoing. This conclusion implicitly rejects a broad state power to restrict threatening speech simply in order to prevent the immediate evil of the coercive effect, a protective aim to which the wrongfulness of the threatened conduct seems irrelevant.
It must be remembered that the Illinois statute did not require the element of selfish gain found in the extortion statutes discussed above. But the Landry court clearly was troubled by one application of the statute to threats of quite serious illegal action for material gains, the case of a threatened unlawful strike. It escaped its doubts only by once again evading the method of overbreadth analysis.
In one recent prosecution, Moore v. State, 519 S.W.2d 604 (Tenn. 1975), defendant was charged with threats amounting to extortion when he demanded that a food store contribute to his organization, the Black Panther Party, assertedly for charitable programs. When the store manager put off a decision, defendant was heard to say to a companion: "Well, I guess we'll have to close them up." Thereafter the store was picketed, with consequent loss of business. A Tennessee court rejected defendant's objection that the picketing was privileged under the first amendment on the grounds that defendant intended "to pressure the store into contributing money to his cause" and that the store should be free not to contribute, "secure in the knowledge that no retribution will be forthcoming under the guise of constitutional protection." 519 S.W.2d 606-07. To show the limits of picketing for an unlawful purpose, the court cited Hughes v. Superior Court, 339 U.S. 460, 70 S.Ct. 718, 94 L.Ed. 985 (1950). This is doubtful authority, because in Hughes, as in its predecessor, Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 L.Ed. 834 (1949), the picketing demanded unlawful action by the picketed enterprise, unlike the donations requested of the food store in Moore. On the other hand, the Supreme Court also has sustained a prohibition against picketing "to threaten, coerce, or restrain" a person who is not a party to a labor dispute. N.L.R.B. v. Retail Store Employees, 447 U.S. 607, 100 S.Ct. 2372, 65 L.Ed.2d 377 (1980).
Moore's conviction was sustained in subsequent federal habeas corpus proceedings. The district court denied relief because Moore was "not convicted for his picketing activities but for threatening to picket for the purpose of extorting a payment." Moore v. Newell, 401 F.Supp. 1018, 1021 (1975). The court thought it immaterial whether petitioner sought the payment to enrich himself or for charitable purposes.
402 U.S. at 419, 91 S.Ct. at 1578.
Similar issues have arisen in applying state laws against coercive action to organized boycotts in the context of race relations. Since this case was argued, the United States Supreme Court has reversed a civil judgment for damages awarded to retail merchants for loss of business resulting from a consumer boycott organized in support of a list of demands for actions by various community institutions. National Association for the Advancement of Colored People v. Claiborne Hardware Co., ___ U.S. ___, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). The boycott was preceded by a demand on the merchants for support backed by the threat of a "selective buying campaign." The Mississippi Supreme Court rejected the defendants' constitutional claims on the grounds, first, that the demands and the boycott did not relate to a direct grievance against the merchants but demanded their support for political actions by the community, and second, that defendants violated a criminal law by threatening others with bodily harm to intimidate or coerce them to participate in the boycott. N.A.A.C.P. v. Claiborne Hardware Co., 393 So.2d 1290 (Miss. 1981).
Our review of the foregoing cases is relevant, not because anything like civil rights boycotts or labor picketing is involved here, but because they have tested the courts' ability to explain the validity or invalidity of laws that forbid verbal demands coupled with verbal threats. It cannot be said that any single explanation has emerged from the decisions.
To return to the variables we identified at the outset, the fact that the threatener's demand is for money or other selfish gain is a central element in robbery by threat, blackmail and extortion. But it alone is not conclusive, for peaceful informational picketing and by implication the threat to picket are free speech when designed to gain financial payments or other legally permissible benefits.
The Illinois Intimidation Statute was saved in Landry v. Daley, supra, on the premise that it forbade only threats of unlawful action under circumstances creating a realistic fear of such action; but again, the court found the element of unlawfulness alone insufficient with respect to threats of relatively minor offenses, and it balked at extending this premise to threats of an unlawful strike. Its hesitancy may suggest a notion that labor relations constitute a special and potentially decisive element in the analysis of demands and threats. There is no apparent reason so to limit a privilege. The drafters of the American Law Institute's Model Penal Code believed that "some categories of threats ... should obviously be privileged."
VI. Application of Article I, section 8, to ORS 163.275.
In sum, our review of the cases that have tested laws against extortion, intimidation, or coercion under the first amendment yields no principled guidance on freedom of expression to state verbal demands coupled with verbal threats. A statute or other rule does not escape potential overbreadth solely because it deals with demands for property or benefits, or because it is limited to threats involving unlawful conduct, or because it is directed against the use of intimidating words or means of expression such as picketing. Each element narrows the potential infringement of free expression, but each element, standing alone, encompasses free expression under some circumstances.
The state argues that ORS 163.275(1)(e), the specific provision under which the present charge is brought, can be saved if it is interpreted to forbid only threats to make defamatory disclosures if the threatener's demand is not met. The state points to statements before the Criminal Law Revision Commission to show that the commission was aware of the Illinois intimidation statute and apparently of Landry v. Daley, supra, and it argues that despite the absence in ORS 163.275 of the words "without lawful authority" upon which the Landry court sustained the statute, the Oregon law could and should be given an equally limited interpretation. Perhaps so; but the argument
To recapitulate, we believe that the constitutional right to speak, write, or print freely on any subject whatever guaranteed in article I, section 8, was not meant to immunize the use of words in some respects relevant to ORS 163.275. As we have said, one of these is the use of words in the course of what indisputably would have been a conventional crime when Oregon's Bill of Rights was adopted in 1859, or in the course of similar kinds of conventional crimes that lawmakers may from time to time enact.
As we also have said, blackmail or analogous forms of extortion by threats are among the conventional crimes that survive article I, section 8, despite being committed by verbal means. The legislature, of course, may revise these crimes and extend their principles to contemporary circumstances or sensibilities. If it was unlawful to defraud people by crude face-to-face lies, for instance, free speech allows the legislature some leeway to extend the fraud principle to sophisticated lies communicated by contemporary means. Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle. See, e.g., State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980) (definition of "arms" within Or. Const. art. I, § 27); State ex rel Russell v. Jones, 293 Or. 312, 647 P.2d 904
Blackmail and extortion were characterized by the use of threats for the objective of obtaining property from a victim in a private, bilateral transaction akin to robbery, in which the parties' relationship neither gives the threatener a legitimate basis for pressing his demand nor obliges the addressee to hear and consider it apart from the threat. Constitutional freedom of speech did not immunize the private communication of demands and threats in such a setting. That principle has survived.
Legislatures may extend the principle beyond the extortion of property to other objects of extortion. The extortion of sexual conduct is an obvious example. See State v. Felton, supra, (582-583). That is the actual charge in the present case, in which defendants are accused of coercing the victim into sexual conduct by threatening to "expose a secret and publicize an asserted fact [not further described in the indictment] which would tend to subject [her] to hatred, contempt, and ridicule." No doubt this could be prohibited, if the issue before us were the validity of the charge rather than the validity of the statute under which it is brought. But as a statute broadens the potential objects of forbidden demands, the relationship between the parties becomes more important.
There are few relationships in which a person is constitutionally privileged to insist, by private demands, coupled with private threats of otherwise unrelated sanctions, that another turn over property when he is under no legal duty to do so, and the legislature took pains to exempt threats of the kind of collective action in support of group demands upon a business that have troubled courts in the strike, boycott, and picketing cases. ORS 163.275(1)(f), supra. There may be more relationships, within and outside a family, in which it is an exercise of free speech to demand that a person refrain from turning over property, or refrain from particular sexual conduct, or face consequences of the kind listed in ORS 163.275.
The variety of arguably privileged expression proliferates when the statute is broadened to cover all demands "to engage in conduct from which [the addressee] has a legal right to abstain, or to abstain from engaging in conduct in which he has a legal right to engage." It is this extension that encompasses most of the hypothetical examples drawn from politics, journalism, family or academic life cited by defendants and the dissenters in the Court of Appeals to demonstrate the overbreadth of ORS 163.275. Moreover, apart from reaching such relationships, the statute makes no distinction whether the coercive demands and threats are addressed by one person to another in a private confrontation or correspondence or in a more or less public setting designed to inform and perhaps involve others in the issues posed by the demand and the potential sanction. Yet such a setting often will involve protected communication with this wider audience.
Accordingly, we cannot escape the conclusion that ORS 163.275 as written reaches areas of constitutionally privileged expression and thus is invalid unless its coverage
We cannot substitute a wider set of exclusions for those knowingly chosen by the drafters of ORS 163.275, even assuming that such wider exclusions rather than narrower and more precise affirmative coverage are the chosen means to confine the statute within constitutional bounds. Nor can the statute be saved simply by adding or implying a limitation that it does not apply in any situation in which its application would restrict the accused's "right to speak, write, or print freely on any subject whatever" within the guarantee of article I, section 8. Such an implied limitation not only trades overbreadth for vagueness; it abandons scrutiny of the statute altogether for case-by-case adjudication, contrary to the command that no law restricting this right "shall be passed."
The circuit court did not err in sustaining defendants' demurrer. The decision of the Court of Appeals to the contrary is reversed, and the case is remanded to the circuit court for entry of a judgment pursuant to ORS 135.660.
PETERSON, Justice, concurring.
I concur with the majority's analysis insofar as it applies to ORS 167.275(1)(e). As
1. The threat: A threat by the defendant to expose or publicize a secret tending to subject some person to contempt.
2. The demand: A demand by the defendant that the one threatened engage in conduct from which he or she has a legal right to abstain or the threat will be carried out.
3. The action: The one threatened is instilled with fear and engages in the demanded conduct.
The statutory element involved in this case is a threat to expose a secret or publicize a fact, whether true or false, tending to subject the threatened person to hatred, contempt or ridicule, ORS 163.275(1)(e). Unlike the statute involved in Landry v. Daley, 280 F.Supp. 938 (N.D.Ill. 1968), the statute at bar condemns speech which is otherwise lawful.
The majority opinion appears to invalidate the entire statute because its reach into the right of free expression is overbroad, so much so that "narrowing cannot be accomplished by judicial interpretation." I agree that the (1)(e) statutory incursions into protected speech are so substantial that there exists no satisfactory way of judicially severing constitutional applications of (1)(e) from unconstitutional applications. The alternative of creating constitutional boundaries on a case-by-case basis is not a realistic one, for "the contours of regulation would have to be hammered out case-by-case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation."
Other subdivisions of ORS 167.275 may be immune from the overbreadth conclusions that fatally fetter subsection (1)(e). Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942), suggests that other subsections of the statute may be valid, for the Supreme Court there upheld a statute which forbade "offensive, derisive or annoying word to any other person who is lawfully in any * * * public place." Although later federal decisions appear to restrict the Chaplinsky holding,
Other sections of ORS 167.275 may not be constitutionally infirm for overbreadth, or it may be possible for a court to adopt a construction of one or more of the other subsections which will save the statute.
TANZER, J., joins in this opinion.
"Dismissal" is proper for former jeopardy. ORS 135.470. An indictment is properly "set aside" for procedural or formal defects listed in ORS 135.510.
Giaccio v. Pennsylvania, 382 U.S. 399, 402-403, 86 S.Ct. 518, 520-21, 15 L.Ed.2d 447 (1966).
Strictly speaking, the prohibition against ex post facto laws concerns the time when a penal law takes effect rather than the institution that makes it. The rule that criminal laws require greater legislative responsibility and allow less delegation than civil or administrative laws may have only historic explanation, or it may reflect the fact that in criminal law the state both prescribes and initiates specifically penal sanctions, as distinct from civil recovery or regulatory licensing decision. Compare Megdal v. Oregon State Board of Dental Examiners, 288 Or. 293, 605 P.2d 273 (1980) (license revocation), Dickinson v. Davis, 277 Or. 665, 670-71, 561 P.2d 1019 (1977) (administrative fine).
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., supra, ___ U.S. ___, at ___, 102 S.Ct. 1186 at 1193, 71 L.Ed.2d 362, at 371-2.
Village of Hoffman Estates v. Flipside, supra, ___ U.S. at ___, n. 9, 102 S.Ct. at 1193, n. 9, 71 L.Ed.2d at 370-1, n. 9.
___ U.S. at ___, 102 S.Ct. at 1191, 71 L.Ed.2d at 369. The court noted that "the complainant must prove that the enactment is vague `not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all.'" quoting Coates v. City of Cincinnati, 402 U.S. 611, 614, 91 S.Ct. 1686, 1688, 29 L.Ed.2d 214 (1971). ___ U.S. at ___, n. 7, 102 S.Ct. at 1191, n. 7, 71 L.Ed.2d at 369, n. 7.
The analysis based on fair notice to defendants, of course, does not necessarily apply equally to the other "vagueness" objections based on legislative failure to make crucial policy choices in defining crimes and excessive transfer of those choices to prosecutors, courts, and jurors, to which we have referred above.
There is an additional element bearing on the review of statutes for "overbreadth" under article I, section 8, as compared with some other guarantees such as article I, section 27, considered in State v. Blocker, supra, and State v. Kessler, 289 Or. 359, 614 P.2d 94 (1980). Article I, section 8, provides:
As the quotation from State v. Spencer states, it is a prohibition expressly directed at lawmakers at the time of considering a proposed law and forbidding passage of any law that in terms restrains the "free expression of opinion" or restricts "the right to speak, write, or print freely on any subject whatever." It does not invite the enactment of such laws, leaving it to courts to protect freedom of expression in individual cases. See 289 Or. at 228, 614 P.2d 94.
Interestingly, robbery by threat was extended beyond threats of immediate bodily harm to include a threat to accuse another specifically of sodomy, i.e., one form of sexual misconduct, though one regarded far more gravely than that threatened to be disclosed in the present case. Perkins, supra at 372, citing Hickman's Case, 2 East P.C. 728 (1783).
Various types of American statutes are described in LaFave & Scott, Criminal Law 705-707 (1972), Comment, Criminal Law — A Study of Statutory Blackmail and Extortion in the Several States, 44 Mich.L.Rev. 461 (1945).
(Citations omitted). 384 So.2d at 1262.
280 F. Supp. at 961.
We again note that unlike the Illinois law, ORS 163.275 does not in terms make it a crime to "communicate ... a threat" or any other "opinion" or "subject" of speech or writing, and to that extent escapes the initial bar to legislative enactment stated in State v. Spencer, supra.
The Illinois court held that the defendant's privilege to carry out his threat was immaterial; it was the use of the threat to "exercise of an improper influence which is the gravamen of the offense." 37 Ill.Dec. at 192, 401 N.E.2d at 1285. The opinion does not refer to any constitutional issue or to the federal court's effort to save the intimidation statute from overbreadth in Landry v. Daley, supra.
Landry v. Daley, 280 F.Supp. 938, 966 (1968).
As to the statutory violation, the court relied on its decision in Shields v. State, 203 So.2d 78 (Miss. 1967), which described the gist of the offense as "threatening with the intent or purpose to intimidate" by "words or acts calculated and intended to cause an ordinarily prudent and firm person to fear an injury to his person or property." 203 So.2d at 81. If the reference to an "ordinarily prudent and firm person" implies that the circumstances must be such that the actual infliction of the threatened injury seems imminent, this corresponds to the reading held to save the Illinois intimidation statute in Landry v. Daley, supra.
Model Penal Code, § 212.5 (Proposed Official Draft May 1962) at 140-41.
We note that in the Model Penal Code an "affirmative defense," when supported by evidence, must be negatived by proof beyond a reasonable doubt. See Model Penal Code § 1.13 commentary at 110 (Tent. Draft No. 4, 1955).
Tribe, American Constitutional Law 716 (1978). Tribe therefore concludes that the implied exclusion of constitutionally protected behavior in case-by-case decisions may save the validity of a statute when such instances are rare in proportion to the identifiable legitimate applications of a law not directed at speech, for instance prohibitions of trespass or breach of the peace, but that it cannot save statutes that literally proscribe wide areas of privileged as well as unprivileged expression, leaving the actor to speculate whether his words escape the proscription. Id. at 714-716.