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September 28, 2005


Jim Westwood

Ciancanelli and Nyssa will probably become the new benchmarks for Article I section 8 analysis, supplementing or more likely supplanting State v. Robertson, 293 Or 402 (1982).

I argued the Nyssa case for the city, to uphold the constitutionality of the ordinance that keeps nude dancers just a bit farther away than the reach of an adult male's arm. Laura Graser argued to overturn the ordinance, on the ground that proximity is a substantive part of the protected expression (nude dancing).

The City of Nyssa argued that the ordinance meets any of the three Robertson criteria (any one is sufficient): (1) It fits within an historical exception because such expression was regulated in 1857 (this was the court of appeals majority's rationale); (2) It focuses not on the expression but instead on forbidden effects (unlawful sexual contact between patrons and dancers); and (3) It forbids conduct (proximity), not expression (nude dancing). Lacking any of those, the City went on to argue that Robertson should be revisited and refined: (1) A four-foot separation ordinance is a reasonable time, place, or manner regulation that does not forbid the expression, or (2) (the State's main argument in Ciancanelli) A legislative body motivated by public safety concerns is entitled to judicial deference in the way the legislators identify needs and select means for addressing them.

The fact that the Nyssa case arose from regulation of something as facially innocuous as nude dancing disguises some of the harder choices the court might have had to face in a different case. What if a right-to-life extremist had been arrested while trying to plant a bomb next to an unused portion of an abortion clinic? Can there be a prior restraint on one's right to express a political view through the use of explosives? (Judge Armstrong has said that Art. I sec. 8 permits a person to holler "Fire!" in a crowded theater).

Ciancanelli, in which a live sex show operator has challenged a state law agsinst them, will probably be the lead case. It's unlikely that the State will win there unless the Court is willing to revise the rules of Robertson. The Nyssa ordinance could be upheld under the existing Robertson rules. But why would the Oregon Supreme Court have granted review in those two cases if it just wanted to uphold Robertson in every detail? I'm looking for some groundbreaking pronouncements from the Court.

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