S055085, Opinion — State v. Johnson

190
Argued and submitted January 7, decision of Court of Appeals reversed; judgment
of circuit court reversed, and case remanded to circuit court for further proceedings
August 7, 2008
STATE OF OREGON,
Respondent on Review,
v.
WILLIAM CHARLES JOHNSON,
Petitioner on Review.
(CC D0304188M; CA A124900; SC 8055085)
191P3d665
CJS, Constitutional Law§ 461.
En Banc
On review from the Court of Appeals.*
* Appeal from Washington County Circuit Court, Jon B. Lund, Senior Judge.
213 Or App 83, 159 P3d 1213 (2007).

Cite as 345 Or 190 (2008) 	191
Garrett A. Richardson, Portland, argued the cause and
filed the petition for petitioner on review.
Robert M. Atkinson, Assistant Attorney General, Salem,
argued the cause and filed the brieffor respondent on review.
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Michael H. Simon, Julia E. Markley, and Nicholle Y.
Winters, of Perkins Coie LLP, Portland, filed the briefs for
amicus curiae ACLU Foundation of Oregon, Inc.
GILLETTE, J.
The decision of the Court of Appeals is reversed. The judg-
ment of the 	circuit court is reversed, 	and the 	case is
remanded to the circuit court for further proceedings.

192 	State v. Johnson
GILLE'ITE, J.
This criminal case presents a question that lies at
the intersection between Oregon's constitutional protection
of free expression and an Oregon statute that punishes
abusive or insulting speech that is calculated to produce a
violent response. 	The 	Court of Appeals held 	that ORS
166.065(1)(a)(B), the abusive speech provision of the criminal
harassment statute, does not, on its face, violate the free
expression protections in Article I, section 8, of the Oregon
Constitution, 1 and that the statute also is not unconstitu-
tional as applied to defendant's conduct in this case. State v.
Johnson, 213 Or App 83, 159 P3d 1213 (2007). For the rea-
sons explained below, we reverse the decision of the Court of
Appeals.
Because defendant was convicted of violating the
statute, we view the underlying facts in the light most favor-
able to the state. State v. Murray, 340 Or 599, 601, 136 P3d
10 (2006). Defendant found himself stuck in rush hour traffic
near a car that was occupied by two women, one white and
one black. The car had a rainbow decal on the rear, which
caused defendant to assume that the women were lesbians.
The women's car pulled in front of defendant's pickup truck
as the lanes narrowed from two to one. Defendant became
angry and began "tailgating" the women and, using some
kind of sound amplification system, shouted various obscene
and racist epithets at the women, accompanied by extremely
rude gestures. Defendant's conduct drew the attention of
other drivers and lasted for about five minutes as the cars
inched through stop-and-go traffic. Eventually, one of the
women got out of the car to confront defendant. Defendant
did not leave his pickup, but he and the woman engaged in a
heated verbal exchange. Defendant did not verbally threaten
the woman with violence and no actual violence took place,
but the woman later testified that she believed that defen-
dant was trying to incite her to violence. She ultimately
returned to her car when her companion intervened and told
her that a person in the bed of the pickup was swinging a
1 We set out the cited provisions below, in the text of this opinion.

Cite as 345 Or 190 	193
skateboard in a menacing way. 2 The two women then drove
away and called the police.
Defendant was charged with two counts of harass-
ment in violation of ORS 166.065(1)(a)(B). That statute
provides:
"A person commits the crime of harassment if the per-
son intentionally:
"(a) 	Harasses or annoys another person by:
"* * * * *
"(B) 	Publicly insulting such other person by abusive
words or gestures in a manner intended and likely to pro-
voke a violent response[.]"
Defendant demurred to the indictment on the ground that
ORS 166.065(1)(a)(B) is unconstitutionally overbroad in vio-
lation of Article I, section 8, of the Oregon Constitution,
which provides:
"No law shall be passed restraining the free expression of
opinion, or restricting the right to speak, write, or print
freely on any subject whatever; but every person shall be
responsible for the abuse of this right.''
The trial court disallowed the demurrer. At the conclusion of
his ensuing trial, defendant moved for judgment of acquittal
on the ground that the evidence was insufficient to support a
conviction under ORS 166.065(1)(a)(B) and on the further
ground that the statute could not constitutionally be applied
to his conduct because his speech was protected under Article
I, section 8. The trial court denied defendant's motion. Defen-
dant was convicted on both counts. As noted, the Court of
Appeals concluded on defendant's appeal that the statute is
constitutional both on its face and as applied, and affirmed
defendant's convictions. We allowed defendant's petition for
review.
In State u. Robertson, 293 Or 402, 649 P2d 569
(1982), this court set out a framework for challenges to stat-
utes under Article I, section 8, of the Oregon Constitution,
2 Defendant was not charged with any offense connected with the actions of the
other person in his pickup.

194 	State v. Johnson
which the court later summarized in State u. Plowman, 314
Or 157, 164, 838 P2d 558 (1992):
"First, the court recognized a distinction between laws that
focus on the content of speech or writing and laws that focus
on proscribing the pursuit or accomplishment of forbidden
results. 293 Or at 416-17. The court reasoned that a law of
the former type, a law 'written in terms directed to the sub-
stance of any "opinion" or any "subject" of communication,'
violates Article I, section 8,
" 'unless the scope of the restraint is wholly confined
within some historical exception that was well estab-
lished 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.' Id.
at 412.
"Laws of the latter type, which focus on forbidden
results, can be divided further into two categories. The first
category focuses on forbidden effects, but expressly prohib-
its expression used to achieve those effects. The coercion
law at issue in Robertson was of that category. Id. at417-18.
Such laws are analyzed for overbreadth:
" 'When the proscribed means include speech or writing,
however, even a law written to focus on a forbidden
effect * * * must be scrutinized to determine whether it
appears to reach privileged communication or whether
it can be interpreted to avoid such "overbreadth." 'Ibid.
"The second kind of law also focuses on forbidden
effects, but without referring to expression at all. Of that
category, this court wrote:
" 'If [a] statute [is] directed only against causing the for-
bidden 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 con-
stitutionally be applied to his particular words or other
expression, not that it was drawn and enacted contrary
to article I, section 8.' Id. at 417.''
(Emphases, 	brackets, 	and 	ellipsis 	in 	original; 	footnote
omitted.)

Cite as 345 Or 190 	195
As noted, the harassment statute makes it a crime to
"harass[ ]£31 or annoy[] another person by * * * [p]ublicly
insulting such other person by abusive words or gestures in a
manner intended and likely to provoke a violent response."
ORS 166.065(1)(a)(B). The parties assert that that statute
falls into the first part of the second Robertson category: the
gravamen of the offense is not in the prohibition of expression
per se, but in the prevention of a type of "harm" that the leg-
islature believes can be caused by expression. We agree with
that proposition, as far as it goes: The statute focuses on
effects that the legislature wishes to forbid-harassment or
annoyance of another person. However, it expressly prohibits
the use of particular forms of expression-public insults by
abusive words 	or gestures "likely to 	provoke a 	violent
response"-as a means to achieve those effects. It is the leg-
islature's prohibition of that expression that requires addi-
tional attention.
The device through which the intended, forbidden
result (harassment or annoyance) is to be accomplished is
described in a peculiar way: "abusive words or gestures" that
"publicly insult[ ]" a person other than the offender "in a
manner intended and likely to provoke a violent response."
There is no requirement that the offender act violently, or
even offer to act violently. There is no requirement that
either the offender or the person to whom the remarks are
addressed be the one who is likely to react violently. There is
no requirement that the hearer (or anyone else) actually be
put in fear of violence. There is no requirement that the
hearer actually respond violently, or respond at all. And,
finally, there is no requirement that any possible violence be
imminent. The offense is complete if the offender speaks the
words or makes the gestures in public in a manner intended
(and likely) to provoke a violent response by someone at some
time and the hearer is "harass[ed]" or "annoy[ed]." Put most
simply, the statute proscribes a certain species of "harass-
ment" or "annoyance," period.
" We recognize the circularity of defining a word ("harassment") by essentially
repeating it ("harass"), but that circularity does not affect our analysis of defen-
dant's claims in this case.

196 	State v. Johnson
The parties argue at length over whether ORS
166.065(1)(a)(B), as we have construed it, protects a hearer
from a kind of harm "from which the legislature may properly
shield individuals by a criminal law." State v. Moyle, 299 Or
691, 699, 705 P2d 740 (1985). However, we do not think that
the answer to that question is dispositive. Indeed, we assume
that the statute reaches at least some circumstances in which
we 	would 	agree 	that 	the 	hearer 	would 	be 	entitled 	to
protection. 4
But it is patent that the statute also extends to vari-
ous species of expression that may not be punished. Even
when the legislature seeks to prevent violence produced by
speech, it has to take care that it does not do so by criminal-
izing protected speech. See Robertson, 293 Or at 418 (explain-
ing that, when speech is an element of a statute that is
directed at an effect, the statute is susceptible to attack for
overbreadth). Taunts intended and likely to produce a violent
response are not limited to playgrounds and gang disputes.
They extend to political, social, and economic confrontations
that range from union picket lines to the protagonists on a
host of divisive issues, and thus include a wide range of pro-
tected speech. Moreover, courts have long recognized that
even speech that is intended and likely to produce violence
may not be criminalized unless the violence is imminent. See
Hans A. Linde, "Clear and Present Danger" Reexamined:
Dissonance in the Brandenburg Concerto, 22 Stan L Rev
1163, 1170 (1970) (describing Schenck v. United States, 249
US 47, 39 S Ct 247, 63 L Ed 470 (1919)). It follows, we believe,
that a harassment statute that lacks that limitation sweeps
too much protected speech within its reach to survive a facial
challenge.
Harassment and annoyance are among common
reactions to seeing or hearing gestures or words that one
finds unpleasant. Words or gestures that cause only that
kind of reaction, however, cannot be prohibited in a free soci-
ety, even if the words or gestures occur publicly and are
insulting, 	abusive, 	or 	both. 	Stated 	another 	way, 	ORS
One example would be a case in which a speaker addressed a member of the
audience with such epithets and abuse that other members of the audience might
reasonably be expected to attack the person who had been singled out for abuse.

Cite as 345 Or 190 	197
166.065(1)(a)(B) constitutionally may protect a hearer or
viewer from exposure to a reasonable fear of immediate harm
due to certain types of expression, but it cannot criminally
punish all harassing or annoying expression. As this court
most recently stated in State v. Ciancanelli, 339 Or 282, 317,
121 P3d 613 (2005), "among the various historical crimes
that are 'written in terms' directed at speech, those whose
real focus is on some underlying harm or offense may survive
the adoption of Article I, section 8, while those that focus on
protecting the hearer from the message do not." (Emphasis in
original.)
The consequence of applying the foregoing principles
to the present case is clear. Defendant's expression may have
been offensive, but the state may not suppress all speech
that 	offends 	with 	the 	club 	of the 	criminal 	law. 	ORS
166.065(1)(a)(B) criminalizes a harm that results only from a
kind of expression-public insults through abusive words or
gestures. The harm that the statute seeks to prevent-
harassment or annoyance-generally is one against which
the Oregon Constitution does not permit the criminal law to
shield individuals when that harm is caused by another's
speech. For that reason, we conclude that the prohibition con-
tained in ORS 166.065(1)(a)(B) is overbroad on its face and
violates Article I, section 8, of the Oregon Constitution. 5
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
5 We recognize that our decision today prevents using the criminal law to alle-
viate some kinds of distressing circumstances, but that is a consequence of
Oregon's explicit protection of freedom of expression in Article I, section 8. We note,
however, that our ruling is confined to the state's attempt to use the criminal law
in retaliation against defendant's expression. We state no opinion as to whether
some civil remedy, or even some other part of the criminal law, might be applied to
the facts of this or other, similar cases.