Two Historic (and Favorable) Decisions From Oregon’s High Court

By: Kat Sunlove and Layne Winklebleck
Posted: September 30, 2005

A pair of related decisions this week by Oregon's High Court dealt a decisive blow to state laws that restrict sexual expression, reaffirming once again that Oregon is America's Free Speech haven.

Nyssa v. Dufloth

NYSSA, OR—A city code regulating exotic dancing, that includes a four-foot distance limitation between nude dancers and customers, has been declared unconstitutional under the Oregon Constitution. In Nyssa v. Dufloth, the Oregon Supreme Court overruled by a margin of 6-1 the Circuit Court and Court of Appeals decisions that had ruled that nude dancing is not protected expression under the Oregon Constitution.

The Court of Appeals had argued that while the Oregon Constitution protects expression absolutely, the Oregon Supreme Court had said in the past that there are certain historical exceptions. Given that public nudity was not allowed when the Oregon Constitution was adopted in the 19th century, the appeals court determined that nude dancing qualifies as an exception.

Not so, said the Oregon Supreme Court, in its first ever ruling on whether nude dancing is protected expression. A historical exception cannot be established with respect to historical criminal prohibitions, said the court, if those laws were “directed exclusively at protecting the hearer or the viewer from a disfavored message.”

Over the years, The Oregon Supreme Court has consistently interpreted the state constitution as providing near absolute freedom of expression. In 1987, it ruled that there was no exception for obscenity, a landmark decision that has generally been interpreted as meaning government has no business regulating the adult entertainment industry in Oregon.

In addition to being good news for freedom of expression in Oregon, the decision was welcomed by exotic dance fans living in Boise and Ontario, in Idaho. Nyssa, a back-roads town on the Oregon/Idaho border, has long been a very popular destination for Idahoans, who escape in droves from puritan Idaho to Miss Sally’s exotic dance club.

Congratulations to club owner, Sally Dufloth, who would not back down in the face of conservative Eastern Oregon social pressure, and to her attorney, Laura Graser.

Nyssa v. Dufloth - 9/29/05

www.publications.ojd.state.or.us/S49963.htm

Oregon v. Ciancanelli

ROSEBURG, OR—State v. Ciancanelli is a companion case to the Nyssa decision, in which the Oregon Supreme Court overruled the same Nyssa appeals court to say that a live sex show in which a performer used sex toys in a graphic demonstration was also protected expression under the Oregon Constitution.

The written opinion in Ciancanelli is particularly interesting because the court goes to great lengths to analyze both prior case law and the philosophy, meaning and intent of the free speech article of the Oregon Constitution (Article 1, Section 8), which states, “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 court construed the phrase “free expression” in this context very broadly, to preclude “any restraint on most forms of expression as well as laws directed at limiting or restricting any conceivable kind of communication.”

Ciancanelli, which was also decided 6-1, with the same justice in dissent as in Nyssa, is written in very strong and unequivocal language:

“…the words [of Article 1, Section 8] are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down…” said the court. “Thus, it appears to us to be beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike—profanity, blasphemy, pornography—and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component.”

In recent years, Oregon voters have narrowly rejected initiatives to amend Article 1, Section 8.

Oregon v. Ciancanelli - 9/29/05

www.publications.ojd.state.or.us/S49707.htm

Top of Page