Thursday’s decision continued the Oregon court's pattern of broadly interpreting the constitutional rights as forbidding virtually all regulation of obscenity.
The court, 5-1, overwhelmingly said that both restrictions violate the Oregon Constitution's guarantees of free speech and free expression.
The constitution adopted in 1859 says, "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write or print freely on any subject whatsoever."
In one case, defendants Sally Dufloth and Duane Smith, owners and managers of Miss Sally's Gentlemen's Club in Nyssa, Ore., were convicted by a lower court after a police officer responded to a complaint at the club and, upon entering, saw a nude dancer kneeling against a barrier surrounding the stage, shaking her hair in a patron's face. The dancer was less than a foot away from the patron.
The officer arrested Dufloth and Smith for violating a Nyssa ordinance regulating strip clubs, specifically a law regulating a four-foot distance between entertainers and customers.
Both defendants appealed the criminal convictions to an appeals court, asserting that the city ordinance is an unconstitutional restriction on expression. That appeal was denied.
The city argued that the ordinance at issue is not an impermissible restriction on expression because it does not prevent or interfere with the dancers' message; rather, the ordinance is directed at preventing sexual activity and, to that end, merely imposes a reasonable restriction on conduct.
Finally, the city argued that the ordinance did not restrict speech at all but only restricted conduct.
The court, however, did not buy Nyssa’s argument.
“We conclude that Nyssa city code is a law that is directed by its terms and in its actual focus on restraining a particular variety of expression, and that it does not fall within any well-established historical exception to the prohibition against such laws,” the court wrote. “It is unconstitutional on its face.”
In another ruling Thursday, the court ruled decided the case of a Roseburg,Ore., adult business featuring live sex performances in private rooms.
Charles Ciancanelli was convicted of the crime of promoting a live sex show after undercover police paid women to perform sexual activities while the officers watched in the "performance rooms" at the business, called Angels.
But the high court reversed part of Ciancanelli’s appeal, ruling that a state law regulating live sex is unclear.
"The state contends that it is not directed at expression but, instead, at conduct that the legislature is entitled to punish," the court wrote. "However, the state's briefing on that particular point is somewhat unclear: At some points, it appears to suggest that [the law] is directed at public masturbation and sexual intercourse while, at other points, the briefing suggests that the statute is directed at 'masturbation and sexual intercourse for profit.'"
The cases are City of Nyssa vs. Sally Dufloth/Duane Smith, No. S49963, and State of Oregon vs. Ciancanelli, No. S49707.
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