historical exception in Oregon

2024Laws in that category are unconstitutional on their face, ‘unless the restriction is wholly confined within an historical exception.’ Id.

2024In Robertson, the Supreme Court recognized fraud as a well-established historical exception. 293 Or at 412 (listing fraud as one example of a well-established historical exception).

2002In Henry, for example, the court examined literature, statutes, cases, and treatises from the seventeenth and eighteenth centuries to determine whether there existed a well-established historical exception for the regulation of "obscene" publications. 302 Or. at 515-23, 732 P.2d 9 .

2002The court held that, although there may well be a historical exception for the regulation of narrower forms of expression—distribution of obscene materials to "unwilling viewers, captive audiences, minors and beleaguered neighbors," for example—there was none for obscenity generally. 302 Or. at 525 , 732 P.2d 9 .

2002Rather than extend the doctrine beyond the explicitly defined sorts of immutable crimes listed in Robertson , the courts would do well to examine the constitutionality of other legislation burdening expression against a more logical standard, namely, whether the legislation permissibly has targeted the harmful effects of such expression. [12] That approach may *474 have been foreshadowed in Stoneman , where the Supreme Court declined to apply the historical exception doctrine to uphold a statute prohibiting commerce in child pornography but, instead, concluded that the legislature's evident an

2002Rather than extend the doctrine beyond the explicitly defined sorts of immutable crimes listed in Robertson , the courts would do well to examine the constitutionality of other legislation burdening expression against a more logical standard, namely, whether the legislation permissibly has targeted the harmful effects of such expression. [12] That approach may *474 have been foreshadowed in Stoneman , where the Supreme Court declined to apply the historical exception doctrine to uphold a statute prohibiting commerce in child pornography but, instead, concluded that the legislature's evident an

2002Judge Armstrong also claims support from this court's decision in State v. Maynard, 168 Or.App. 118 , 5 P.3d 1142 (2000), rev. den. 332 Or. 137 , 27 P.3d 1043 (2001), which he reads as having rejected the same historical analysis on which we rely in this case. 181 Or.

2002Judge Armstrong also claims support from this court's decision in State v. Maynard, 168 Or.App. 118 , 5 P.3d 1142 (2000), rev. den. 332 Or. 137 , 27 P.3d 1043 (2001), which he reads as having rejected the same historical analysis on which we rely in this case. 181 Or.

2002We explained, however, in Ciancanelli that the historical exception at issue in Henry differs from the one at issue here. 181 Or App at 23 .

2002The majority reasons that our decision in State v. Ciancanelli, 181 Or App 1 , 45 P3d 451 , rev allowed, 335 Or 90 (2002), establishes that state prohibitions against sexual conduct and nudity in live expressive performances come within a historical exception to Article I, section 8, so lesser restrictions on that conduct are permitted as well.

2009HISTORICAL EXCEPTIONS ANALYSIS I do not agree that ORS 260.402 fits wholly within any 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." Robertson, 293 Or. at 412 , 649 P.2d 569 ; see State v. Moyle, 299 Or. 691, 695 , 705 P.2d 740 (1985) (describing the historical exception as a crime that was "well established at the time our constitutional guarantee was enacted and demonstrably outside the aims of the guarantee of freedom of expression").

2009HISTORICAL EXCEPTIONS ANALYSIS I do not agree that ORS 260.402 fits wholly within any 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." Robertson, 293 Or. at 412 , 649 P.2d 569 ; see State v. Moyle, 299 Or. 691, 695 , 705 P.2d 740 (1985) (describing the historical exception as a crime that was "well established at the time our constitutional guarantee was enacted and demonstrably outside the aims of the guarantee of freedom of expression").

2025Co-op., Inc., 699 P2d 1083, 1090-91 (Okla 1985) (quoting State ex rel.

2025Co-op., Inc., 699 P2d 1083, 1090-91 (Okla 1985) (quoting State ex rel.

2016Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers LJ 1005 (2001) (detailing some of the historical assumptions in Smothers that may have been faulty); see also Klutschkowski v. PeaceHealth, 354 Or 150, 178-96 , 311 P3d 461 (2013) (Landau, J., concurring) (describing problems with the historical analysis in Smothers).

2016Hoffman, Questions Before Answers: The Ongoing Search to Understand the Origins of the Open Courts Clause, 32 Rutgers LJ 1005 (2001) (detailing some of the historical assumptions in Smothers that may have been faulty); see also Klutschkowski v. PeaceHealth, 354 Or 150, 178-96 , 311 P3d 461 (2013) (Landau, J., concurring) (describing problems with the historical analysis in Smothers).

2010Under that Robertson category, the plurality concluded that the statute did not violate the free expression guarantee in Article I, section 8, because it came within a historical exception for fraud or perjury. 2 Id. at 95. *225 With regard to defendants’ First Amendment argument, the plurality relied on Buckley v. Valeo, 424 US 1 , 96 S Ct 612 , 46 L Ed 2d 659 (1976), in which the United States Supreme Court held that a statutory requirement that campaign contributors disclose their identities does not violate the First Amendment.

2010Judge Schuman, however, concluded that ORS 260.402 prohibits *225 expression but concurred with the conclusion in the lead opinion that the statute is a contemporary variant of a historical exception to free expression guarantees. 225 Or App at 99-100 (Schuman, J., concurring). 3 The statute was amended in 2007 and now provides similar requirements for contributors in “an aggregate amount of more than $100.” 4 The Court of Appeals plurality concluded that the statute is directed, not at the expression itself, but at the harmful effects of expression (concealing from the recipient and the publi

2009Because the receipt of gifts restrictions do not focus on the content of speech or writing, or on the expression of any opinion, we have no reason to analyze whether the restrictions fall within a well-established historical exception, id. at 163 , or whether they restrain communications that are incompatible with a speaker’s official role or responsibility.

1994Under State v. Plowman, supra, 314 Or. at 164 , 838 P.2d 558 , if the challenged law by its terms focuses on restricting speech, the law is unconstitutional unless it falls within a historical exception. [2] A law that by its terms focuses on harm, but expressly proscribes speech as a means of causing that harm, is constitutional under Article I, section 8, unless it is incurably overbroad.

2002Moser v. Frohnmayer, 315 Or. 372, 376 , 845 P.2d 1284 (1993).

2002Moser v. Frohnmayer, 315 Or. 372, 376 , 845 P.2d 1284 (1993).

2023See also State v. Moyer, 348 Or 220, 234-38 , 230 P3d 7 (2010) (citing Vannatta for the rule that “a statute that prohibits fraud on the electorate need not include an intent element to come within a historical exception”).

2023See also State v. Moyer, 348 Or 220, 234-38 , 230 P3d 7 (2010) (citing Vannatta for the rule that “a statute that prohibits fraud on the electorate need not include an intent element to come within a historical exception”).

2002Nonetheless, we concluded that a content-based restriction on distributing materials to minors that depicted "sexual conduct" could not "be justified by either a historical exception or by the purpose of preventing an identified actual effect or harm." Id. at 656 , 910 P.2d 1115 .

2002Nonetheless, we concluded that a content-based restriction on distributing materials to minors that depicted "sexual conduct" could not "be justified by either a historical exception or by the purpose of preventing an identified actual effect or harm." Id. at 656 , 910 P.2d 1115 .

2011We therefore will continue to analyze challenges brought under Article I, section 8, using the Robertson framework (including Robertson’s notion of a historical exception).” 339 Or at 314-15 .

2005Ciancanelli, 339 Or at 321-22 . 4 The city does not suggest any other basis for finding the present law to fall within a historical exception to the prohibition of Article I, section 8, and we find none.

2009See In re Lasswell, 296 Or 121 , 673 P2d 855 (1983) (discussing incompatibility exception).

2009See In re Lasswell, 296 Or 121 , 673 P2d 855 (1983) (discussing incompatibility exception).

2006State v. Plowman, 314 Or. 157, 163 , 838 P.2d 558 (1992), cert. den., 508 U.S. 974 , 113 S.Ct. 2967 , 125 L.Ed.2d 666 (1993) (summarizing holding of Robertson; emphasis in Plowman ).

2006State v. Plowman, 314 Or 157, 163 , 838 P2d 558 (1992), cert den, 508 US 974 (1993) (summarizing holding of Robertson-, emphasis in Plowman).

2002See Smallwood v. Fisk, 146 Or App 695 , 934 P2d 557 (1997) (punitive damages for fraud are a historical exception to Article I, section 8). 21 Despite its caption, the document at issue is simply a judgment.

2002See Smallwood v. Fisk, 146 Or App 695 , 934 P2d 557 (1997) (punitive damages for fraud are a historical exception to Article I, section 8). 21 Despite its caption, the document at issue is simply a judgment.

1990As this court stated in State v. Henry, supra, 302 Or. at 521 , 732 P.2d 9 , "[t]he constitutional guarantee of free speech * * * will not be overcome by the mere showing of some legal restraints on *50 one or another form of speech or writing." [14] The majority does not attempt to justify Canon 7 B(7) under a historical exception to Article I, section 8, 310 Or. at 560 , 802 P.2d at 38 .

1990As this court stated in State v. Henry, supra, 302 Or. at 521 , 732 P.2d 9 , "[t]he constitutional guarantee of free speech * * * will not be overcome by the mere showing of some legal restraints on *50 one or another form of speech or writing." [14] The majority does not attempt to justify Canon 7 B(7) under a historical exception to Article I, section 8, 310 Or. at 560 , 802 P.2d at 38 .

2021Consistent with Dairy Queen, we rejected the idea that “a court should decide the right to jury trial based on an historical analysis of whether the case as a whole would have been tried at law or in equity when the constitution was enacted.” Miramontes, 352 Or at 418 .

2014If under the historical test the plaintiff actually would have been able to maintain an action at law and have the jury pass on those factual issues, the result may be a denial of the right to jury trial. * * * The question of order of trial should not be allowed to obscure the question of right to jury trial.” Miramontes, 352 Or at 421-22 (internal citations omitted).

2012In that regard, quoting from its decision in Beacon Theatres, Inc. v. Westover, 359 US 500, 510-11 , 79 S Ct 948 , 3 L Ed 2d 988 (1959), the Court held that “‘only under the *418 most imperative circumstances * * * can the right to a jury trial of legal issues be lost through prior determination of equitable claims.’” Dairy Queen, 369 US at 472-73 . 14 Thus, the Supreme Court’s decision in Dairy Queen is completely at odds with the suggestion that, in cases involving mixed issues of law and equity, a court should decide the right to jury trial based on an historical analysis of whether the cas

2012In that regard, quoting from its decision in Beacon Theatres, Inc. v. Westover, 359 US 500, 510-11 , 79 S Ct 948 , 3 L Ed 2d 988 (1959), the Court held that “‘only under the *418 most imperative circumstances * * * can the right to a jury trial of legal issues be lost through prior determination of equitable claims.’” Dairy Queen, 369 US at 472-73 . 14 Thus, the Supreme Court’s decision in Dairy Queen is completely at odds with the suggestion that, in cases involving mixed issues of law and equity, a court should decide the right to jury trial based on an historical analysis of whether the cas