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FIRST-PERSON: If only Oregon’s founders knew …


McMINNVILLE, Ore. (BP)–Oregon’s “oh-so-open-minded” Supreme Court has ruled that a live sex show is a constitutionally protected freedom of expression, although, for the moment, prostitution is not.

I wonder, how might the justices rule in a situation where patrons pay a cover charge to watch a live sex show that also includes audience participation?

It remains to be seen whether the Oregon legislature’s 2001 banning of bestiality will stand.

How did such an ugly judicial reality come to characterize an aesthetically beautiful state like Oregon?

Article I, Section 8 of the Oregon Constitution covers freedom of speech and press. Ratified in 1857, it reads, “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.”

In a 1983 ruling, State v. Robertson, the Oregon Supreme Court established that freedom of speech — which includes the subjective notion of freedom of expression — is nearly absolute.

Then, on Sept. 29 of this year, the Oregon Supreme Court agreed with that 1983 precedent and ruled 5-1 that Article I, Section 8 trumped not only a city ordinance regulating nude dancing, but also a state law that prohibited the promoting of live sex shows.

The court found that a Nyssa, Ore., city ordinance requiring nude dancers to remain at least four feet away from patrons was unconstitutional. Additionally, the justices overturned the conviction of a Roseburg adult-oriented business owner for promoting a live sex show and invalidated a state law prohibiting such activity. The result is that Oregon’s already liberal free speech provision became even more expansive. It is hard to see what, if any, expression the Oregon Supreme Court would deem objectionable.

Wading through most any legal opinion is about as enjoyable as a colonoscopy. However, examining the Oregon Supreme Court’s recent ruling was particularly painful and about as pleasant as a root canal. The difference being that when a root canal is finally over, you feel like some good was accomplished.

The justices engaged in 21 pages of legal gymnastics, including the tortuous parsing of the word “abuse.” They argued that the framers of Oregon’s Constitution intended to protect up-close-and-personal nude dancing as well as live shows when the framers forbade any law “restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever.”

The only positive in the Court’s ruling was Justice Paul J. De Muniz’s lone and terse dissent. He opined the idea that the 19th-century “Victorian-era drafters and ratifiers of the Oregon Constitution” wanted to include public sex acts under the umbrella of free-speech “is difficult to comprehend.”

“[A]t 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,” De Muniz wrote.

In order to buy the majority opinion in the recent Oregon Supreme Court ruling, you have to believe that the Oregon framers were too dull to appreciate fully that their concept of free speech included behaviors that they themselves sought to regulate at the time they wrote the Constitution.

Amazingly, five justices on the Oregon Supreme Court believe just that.
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Kelly Boggs is pastor of the Portland-area Valley Baptist Church in McMinnville, Ore. His column appears each Friday in Baptist Press.

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  • Kelly Boggs