FILED: October 31, 2001

CITY OF EUGENE,

Respondent,

v.

DANIEL JOHN LEE,

Appellant.

Appeal from Circuit Court, Lane County.

Maurice K. Merten, Judge.

Argued and submitted June 12, 2001.

Daniel J. Stotter argued the cause for appellant. With him on the briefs was Bahr & Stotter.

Jens Schmidt argued the cause for respondent. With him on the brief were Craig J. Capon and Harrang Long Gary Rudnick P.C.

Before Haselton, Presiding Judge, and Linder and Wollheim, Judges.

HASELTON, P. J.

Reversed.

HASELTON, P. J.

Defendant appeals his conviction for disorderly conduct under Eugene City Code ECC section 4.725, arguing that the ordinance is unconstitutional as applied to him, under state and federal constitutional provisions protecting his rights to free speech and free religious exercise. We do not reach defendant's arguments concerning the First Amendment to the United States Constitution or his argument concerning the religion provisions of the Oregon Constitution because we find his free expression arguments under Article I, section 8, of the Oregon Constitution to be dispositive. For the following reasons, we reverse defendant's conviction.

Defendant was charged with a violation of ECC section 4.725 in municipal court, was convicted, and appealed his conviction to the Lane County Circuit Court for a trial de novo on the charge. ORS 221.360. (1) Defendant was convicted in circuit court after a trial to the court. On appeal, pursuant to ORS 221.360, we limit our review to the constitutionality of the ordinance as applied to defendant.

The material facts as established at the circuit court trial are as follows. On April 16, 1999, defendant was standing on the Eugene pedestrian mall, which is over 50 feet wide, engaging in street preaching in a loud voice. He was preaching from the King James version of the Bible, pounding on his Bible, and calling out to passersby, accusing them of various sins and making repeated reference to "whores" and "whoremongers." (2) A group of three to five passersby had stopped close to defendant to engage in heated debate with him, and defendant referred to one of them, Carter, as a drunkard. Several dozen more bystanders also were grouped around defendant watching and listening. The crowd around defendant was gathered on the south side of the mall, but pedestrian traffic could get by to the north of where defendant and the crowd were gathered.

Jacqueline Silverthorn and her fiancé, John Lawson, walked by the area on the north side of the mall kissing each other, and defendant called out that Silverthorn was a whore and that she was going to hell. Silverthorn and Lawson were upset by defendant's description of Silverthorn as a whore, and reported the event to a nearby police officer, Tinseth. (3)

Tinseth approached defendant and saw that defendant was surrounded by 30 to 35 people, some of whom were becoming enraged by defendant's words. Defendant was waving and thumping his Bible while arguing with those people. Tinseth could hear some noise from about 150 feet away, and when he came closer he identified defendant as the source of some of the noise. Carter, whom defendant had called a drunkard, appeared to be on the verge of engaging defendant in a physical fight. Tinseth knew Carter as "a local transient" who was "very violent," and perceived that defendant was not trying to calm Carter down. Tinseth ordered several people in the crowd to stand back and then arrested defendant.

Tinseth arrested defendant, in part, because he was attracting a large crowd and because the nature of his yelling was causing a disturbance. However, Tinseth's primary reason for arresting defendant "was that he attempted to be provoking fights, a physical altercation right there, with passing people." Defendant was charged with disorderly conduct under ECC section 4.725.

ECC section 4.725 provides, in part:

"A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:

"(a) Engages in fighting or in violent, tumultuous or threatening behavior; or

"(b) Makes unreasonable noise; or

"* * * * *

"(d) Obstructs vehicular or pedestrian traffic on a public way[.]"

The city charged defendant, in the alternative, under each of those subsections.

At trial, defendant raised constitutional defenses to the charges against him, arguing that free speech and free religion clauses of the state and federal constitutions gave him a protected right to engage in the type of preaching that he was engaging in when he was arrested. The trial court rejected defendant's arguments and found him guilty of one count of disorderly conduct under the ordinance. The trial court did not specify under which of the sections it found defendant guilty.

On appeal, defendant asserts that his conviction must be reversed because, as a constitutional matter, his conduct cannot support criminal culpability under any of the alternatively charged subsections. Defendant argues that, regardless of the ordinance's facial constitutionality, it cannot be constitutionally applied to punish his conduct.

We begin with defendant's arguments under Article I, section 8, of the Oregon Constitution. Defendant relies primarily on City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994), in support of his argument that the ordinance is unconstitutional as applied to him because preaching activity is expressive conduct protected by Article I, section 8. The city responds that, under Miller, an ordinance that is content neutral on its face is subjected only to "rational basis" scrutiny, and asserts that there is a rational basis for the ordinance. As explained below, we reject the city's argument that the success of Article I, section 8, as-applied challenges depends on whether the ordinance, as written, has a "rational basis," and agree with defendant that the ordinance in question, as applied to him under these circumstances, violated Article I, section 8.

Article I, section 8, of the Oregon Constitution provides:

"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."

State v. Robertson, 293 Or 402, 649 P2d 569 (1982), provides the general framework for assessing the constitutionality of legislation in the context of Article I, section 8, challenges. In Robertson, the court considered the nature of overbreadth challenges to laws that could be applied in a manner that burdens rights of free expression granted by Article I, section 8. The court identified two types of laws--those aimed at the contents of speech, and those aimed at specific harms, or "forbidden effects," that can be caused by speech rather than aimed at the words themselves. Id. at 416-17. Laws aimed at the content of speech violate Article I, section 8, unless the scope of the restraint is wholly confined within some well-established historical exception. Id. at 412. The other type of laws, those aimed at "forbidden effects," fall into two different categories: (1) where the statute proscribes means of achieving a forbidden effect and those means include speech or writing, then the court is to determine whether the law reaches privileged communication or whether it can be interpreted to avoid such overbreadth; and (2) where the statute is directed only against causing the forbidden effects, but those forbidden effects may, in fact, be caused by means of language or gestures, the defendant may raise an "as applied" challenge to the statute. Id. at 417-18.

The parties contend that the ordinance at issue in this case falls within the last of those categories. The parties assume that the subsections at issue here focus on forbidden effects--unreasonable noise, obstruction of vehicular or pedestrian traffic, and behavior that is violent, tumultuous or threatening. (4) If none of those effects necessarily results from expression, and any of those effects may be achieved solely with nonexpressive conduct, the challenged subsections of the ordinance fall into the third Robertson category and "are subject to challenge * * * on vagueness grounds or on the ground that the [ordinance's] reach, as applied to defendant, extends to privileged expression." State v. Stoneman, 323 Or 536, 543, 920 P2d 535 (1996). Defendant makes no argument that the ordinance is vague. The question presented, therefore, is whether the ordinance, as applied, burdens privileged expressions.

Miller, relied on by both parties here, involved a city ordinance that prohibited street vending of anything other than food, beverages, flowers or balloons. 318 Or at 483. The defendant was cited under the ordinance for selling a joke book to a pedestrian. Id. He argued that the ordinance was unconstitutional as applied to him because his joke book contained expressive material protected by Article I, section 8. The court noted that expressive material is not necessarily exempt from all content-neutral regulation, id. at 487; conversely, not all content-neutral regulation necessarily survives scrutiny, because some regulations "restrict too greatly 'the free expression of opinion' and 'the right to speak, write or print freely on any subject whatever.'" Id. The court further noted that it did not perceive any "rational basis" for the city to distinguish between the sale of expressive materials and the sale of the items allowed by the ordinance. Id. at 491. As the court framed the issue, the question was whether the city's content-neutral regulations "impermissibly burden[ed the defendant's] right of free speech guaranteed in Article I,