City of Nyssa v. Dufloth

57 P.3d 161, 184 Or. App. 631, 2002 Ore. App. LEXIS 1716

• Court: Court of Appeals of Oregon
• Decided: October 30, 2002
• Docket: A00080112; A113180; A00080111; A113181
• Status: Published

Opinions

KISTLER, J.

The City of Nyssa enacted an ordinance that requires nude dancers to remain at least four feet away from the audience. The municipal court convicted defendants of violating that ordinance, and the circuit court upheld the convictions. On appeal, defendants argue that the city’s ordinance violates Article I, section 8, of the Oregon Constitution. We affirm.

Defendants operate Miss Sally’s Gentlemen’s Club in the City of Nyssa. On February 27, 2000, the city cited defendants for “allowing dancing within 4 ft” of the audience in violation of the Nyssa City Code (NCC). Subsection 5.10.130(17) of that code provides:

“No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron.”¹

The municipal court found that defendants had allowed the audience to come within four feet of the dancers in violation of the city’s ordinance and fined each defendant $185. On appeal to the circuit court, defendants demurred to the indictment. See ORS 221.359. The circuit court overruled the demurrer and found defendants guilty of violating the ordinance.

On appeal, defendants assign error to the circuit court’s ruling denying their demurrer. See ORS 221.360. They argue that the city’s ordinance, which they characterize as a restriction on nude dancing, impermissibly regulates expression in violation of Article I, section 8.² The city responds that, not only has the Oregon Supreme Court not held that nude dancing is protected expression under Article 1, section 8, but that our reasoning in State v. Ciancanelli, 181 Or App 1, 45 P3d 451, rev allowed, 335 Or 90 (2002), compels the conclusion that nude dancing is not protected expression, at least under the state constitution.³ The city argues alternatively that, even if nude dancing is protected expression, the city’s ordinance is not an impermissible restraint on expression. In the city’s view, a dancer remains free to express him- or herself however he or she wishes. The only restriction the city’s ordinance imposes is on the audience; it must stay a reasonable distance away from the dancers.

The concurring and dissenting opinions divide over the question whether a time, place, and manner regulation imposed on a particular kind of expression is a law directed at an effect or one directed at expression. The concurring opinion reasons that the ordinance satisfies Article I, section 8, because it “focus[es] on the effects or harms that could occur because of the close proximity of patrons to nude dancers and the potential of sexual contact between them.” 184 Or App at 639 (Edmonds, J., concurring). One of the dissenting opinions reasons that the ordinance regulates a type of expression, nude dancing, in order to prohibit an effect, sexual contact between the dancers and the patrons, and that the failure to prohibit the effect itself makes the ordinance facially unconstitutional. 184 Or App at 657-58 (Schuman, J., dissenting). The other dissenting opinion would hold that the ordinance suffers from an additional defect. 184 Or App at 653 (Armstrong, J., dissenting). In its view, the ordinance regulates performers “who use nudity in their expressive work” differently from other performers and thus runs afoul of Article I, section 8. Id.; see also League of Oregon Cities v. State of Oregon, 334 Or 645, 56 P3d 892 (2002).

In City of Portland v. Tidyman, 306 Or 174, 184, 186, 759 P2d 242 (1988), the court held that a similar time, place, and manner regulation — an ordinance that zoned adult businesses to prevent urban blight — was “flatly directed against one disfavored type of pictorial or verbal communication” and thus facially unconstitutional under Article I, section 8.⁴ We need not decide the issue that divides the concurrence and the dissents — whether the time, place, and manner regulation at issue here is aimed at an effect or, like the ordinance at issue in Tidyman, “is flatly directed against one disfavored type [of expression].” See id. Even if the ordinance is directed at expression, under Ciancanelli, nude dancing comes within a well-established historical exception to Article I, section 8, and is thus not protected expression for the purposes of the state constitution.

In State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982), the court held that Article I, section 8, of the Oregon Constitution

“forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication, unless the scope of the restraint is wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach. Examples are peijury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.”

As the court explained, Article I, section 8, contains both a broad prohibition and an exception. As a general rule, Article I, section 8, prohibits the enactment of any law that is written in terms directed at speech rather than effects.⁵ Id. That principle requires the legislature to specify the effects it intends to prohibit instead of using speech as a proxy for those effects. Tidyman, 306 Or at 185-86.⁶ The prohibition is not absolute, however, as the court was quick to recognize in Robertson. If a law was historically well established and one that the guarantee of free expression was demonstrably not intended to reach, then that law and its contemporary variants survive the adoption of Article I, section 8, even though they expressly prohibit expression.

The Robertson court did not identify the analytical basis for the historical exception it announced. It noted, however, numerous examples of laws that were directed at the content of speech and that existed before the Oregon Constitution was adopted. It apparently declined to assume that, in prohibiting the legislature from enacting laws directed at speech, the framers of Oregon’s Constitution intended to render those well-established laws unconstitutional. See Tenney v. Brandhove, 341 US 367, 376, 71 S Ct 783, 95 L Ed 1019 (1951) (applying a similar analysis in a different context). It follows that, in asking whether a law comes within a well-established historical exception within the meaning of Robertson, the proper focus is on the intent of the framers measured by the test that the court articulated in Robertson. See Ciancanelli, 181 Or App at 21, 26.

In this case, we need not undertake that historical inquiry because we have already done so in Ciancanelli. In Ciancanelli, we considered whether a statute that prohibits persons from presenting “a live public show in which the participants engage in * * * sexual conduct” violates Article I, section 8. 181 Or App at 5. Because that statute was directed at “live public show[s],” we assumed that it was written in terms directed at expression. Id. at 7. We held, however, that the statute did not violate Article I, section 8, because it was wholly contained within a well-established historical exception. Id. at 19. In reaching that conclusion, we explained that “eighteenth- and nineteenth-century statutes and case law reflect the widespread — if not universal — regulation of public exposure of the genitals.” Id. at 16. We reasoned that, if the framers had understood that laws regulating public nudity would survive the adoption of Article I, section 8, it necessarily followed that laws regulating public sexual conduct would survive as well. Id.

Our reasoning in Ciancanelli establishes that prohibitions against both public nudity and public sexual conduct come within a well-established historical exception. We relied on the clearly established prohibition against the former to conclude that laws regulating the latter also qualify as a historical exception to Article I, section 8. Under Ciancanelli, the City of Nyssa’s ordinance regulating nude dancing does not violate Article I, section 8.⁷

We note that we reached a different conclusion in Sekne v. City of Portland, 81 Or App 630, 726 P2d 959 (1986), rev den, 302 Or 615 (1987). In that case, we held that nude dancing is protected expression under Article I, section 8. We did not decide, however, in Sekne whether laws regulating nude dancing come within a historical exception to Article I, section 8. See id. at 637. Rather, relying in part on First Amendment cases, we reasoned that nude dancing is protected under the state as well as the federal constitution. Id. at 637-38. Not only does our reliance on federal authority undercut the force of our state constitutional analysis in Sekne, see Nelson v. Lane County, 304 Or 97, 102, 743 P2d 692 (1987) (plurality), but our holding in Sekne cannot be reconciled with our later en banc holding in Ciancanelli. We accordingly make explicit what was implicit in Ciancanelli: After Ciancanelli, our decision in Sekne is no longer good law.

Following Ciancanelli, we hold that, because laws regulating nude dancing come within a well-established historical exception, Article I, section 8, does not prohibit their enactment. More specifically, Article I, section 8, does not prohibit the City of Nyssa from requiring that the audience stay at least four feet away from defendants’ nude dancers. Nude dancing is, of course, entitled to all the protection that the First Amendment affords, but defendants have not raised a First Amendment claim in this case. The trial court correctly denied defendants’ demurrer.

Affirmed.

1 The citation refers to NCC § 5.10.050, which provides that the stage “shall be separated by a distance of at least four feet from all areas of the premises to which members of the public have access.” Both parties, however, have briefed the case on the premise that NCC § 5.10.130(17) is the operative provision. We accept that premise for the purpose of analyzing defendants’ constitutional challenge.

2 Defendants also argue that the trial court erred in not permitting them to introduce evidence in support of their demurrer. A demurrer, however, is limited to the face of the charging instrument. See State v. Weber, 172 Or App 704, 713, 19 P3d 378 (2001).

3 We issued our decision in Ciancanelli after oral argument in this case. The city filed a memorandum of additional authorities asserting that Ciancanelli controls this case. Defendants have not responded to the city’s memorandum.

4 The zoning ordinance at issue in Tidyman was a classic time, place, and manner regulation. It did not prohibit adult businesses as such. Rather, it controlled their location in order to achieve an effect — preventing urban blight. Tidyman, 306 Or at 184-85. The ordinance at issue here similarly requires that dancers be separated from the audience in order to achieve an effect — preventing sexual contact between the dancers and the patrons.

5 We use the terms “speech” and “effects” as shorthand formulations of the more specific test that the court announced in Robertson.

6 In State v. Stoneman, 323 Or 536, 545-49, 920 P2d 535 (1996), the court qualified its reasoning in Tidyman and Robertson. It explained that some laws written in terms directed at expression may still be permissible effects-based statutes. Stoneman, 323 Or at 545-49.

7 Neither dissent disputes that our opinion in Ciancanelli controls the resolution of this case. Similarly, neither dissent suggests that the majority’s discussion of the relevant history in Ciancanelli is itself historically inaccurate or incorrect. Rather, one dissent reasons that, if our opinion in Ciancanelli is correct, then plays such as Hair and Oh! Calcutta! will not be entitled to protection under Article I, section 8, of the Oregon Constitution. 184 Or App at 654 (Armstrong, J., dissenting). The persons, however, associated with those plays could still seek protection under the First Amendment, and it does not necessarily follow that the state constitution must be as broad as the federal. That dissent also reasons that it “makes no sense” to say that the Oregon Constitution does not protect live sex acts and nudity in public places but that it does protect the reproduction of those acts in film, photographs, and similar media as the court held in State v. Henry, 302 Or 510, 732 P2d 9 (1987). 184 Or App at 654 (Armstrong, J., dissenting). We explained, however, in Ciancanelli that the historical exception at issue in Henry differs from the one at issue here. 181 Or App at 23. Moreover, the Supreme Court has recognized a historically based exception to Oregon’s free speech guarantee, and resort to history does not always produce completely consistent results. The other dissenting opinion questions whether the laws that we discussed in Ciancanelli applied to limited-admission nude shows. See 184 Or App at 655-56 (Schuman, J., dissenting). We addressed that issue, however, in Ciancanelli, see 181 Or App at 19-20, and we adhere to our earlier analysis.