In a decision that defies sense, common and otherwise, the Oregon Supreme Court here has ruled that sex acts between sex workers in strip clubs are protected forms of opinion speech. To discover how abjectly absurd that logic is read some of the money quotes from the dissenting opinion (I know, one guy out of five with one recusal ain’t that confidence building but…). You’ll understand a lot more about the case and the majority opinion when you read its deconstruction by the minority report writer:
Finally, and perhaps most importantly, the idea that the Victorian-era drafters and ratifiers of the Oregon Constitution sought to bring public masturbation and sexual intercourse within the purview of constitutional free-speech protection is difficult to comprehend. In my view, the Court of Appeals’ majority opinion in this case amply demonstrated that, at the time the Oregon Constitution was adopted, pornography, nudity, lewd behavior, and “bawdy-houses” were accepted targets of regulation that enjoyed no constitutional protection based on expressive content. State v. Ciancanelli, 181 Or App 1, 9-21, 45 P3d 451 (2002).
Most importantly, it is unnecessary to embark, as the majority does, on a search for the historical truth underlying the framers’ intent, or invoke the free-speech framework announced in Robertson. Article I, section 8 addresses speech, whereas ORS 167.062 addresses conduct, which is a well-accepted dichotomy in constitutional free-speech law. See United States v. O’Brien, 391 US 367, 88 S Ct 1673, 20 L Ed 2d 672 (1968) (draft-card burning not protected speech but subject to regulation as conduct). ORS 167.062 does not on its face, violate Article I, section 8 because the statute is directed at conduct, not at the substance of any opinion or any subject of communication or expression.
And here it is the money quote:
It should be beyond dispute that public acts of masturbation and sexual intercourse for profit are not intrinsically expressive or communicative acts. See Arcara v. Cloud Books, Inc., 478 US 697, 705, 106 S Ct 3172, 92 L Ed 2d 568 (1986) (upholding closure of adult bookstore where patrons were engaged in masturbation, oral sex, and prostitution, court observed that “the sexual activity carried on in this case manifests absolutely no element of protected expression”). Unfortunately, the majority accepts defendant’s argument that the statute restrains expression protected by Article I, section 8, because it prohibits sexual conduct in a public show. In essence, according to the majority, masturbation and sexual intercourse before an audience are forms of protected expression. In my view, the question is not resolved so simply. I cannot accept the majority’s premise that an apparently limitless variety of conduct can be labeled speech simply because it occurs beneath a proscenium arch or is performed before an audience.
