Huffman and Wright Logging Co. v. Wade

857 P.2d 101, 317 Or. 445, 1993 Ore. LEXIS 132

• Court: Oregon Supreme Court
• Decided: August 19, 1993
• Docket: CC L87-2850; CA A61324; SC S38633
• Status: Published

Opinions

GRABER, J.

In an action for trespass to chattels, the jury awarded compensatory and punitive damages to plaintiff. Defendants concede their liability for trespass and for compensatory damages, but argue that Article I, sections 8 and 26, of the Oregon Constitution,¹ and the First and Fourteenth Amendments to the Constitution of the United States² prohibit an award of punitive damages against them, because their tres-passory conduct was “expressive” political speech designed to change government policies. The Court of Appeals affirmed the judgment for punitive damages. Huffman and Wright Logging Co. v. Wade, 109 Or App 37, 817 Pd 1334 (1991). We also affirm.

The material facts are not disputed. Plaintiff is a private corporation that operates a logging business. Defendants are six members of “Earth First!” In July 1987, defendants participated in a demonstration on a United States Forest Service logging road in the North Kalmiopsis area of the Siskiyou National Forest. The demonstration was organized to protest Forest Service policies regarding the area. During the demonstration, five of the six defendants climbed on, and chained themselves to, plaintiff s logging equipment. The sixth defendant climbed to the top of a yarder belonging to plaintiff and hung a large banner that read: “FROM HERITAGE TO SAWDUST - EARTH FIRST!” The banner also depicted two trees being turned into sawdust. While defendants were attached to the equipment, they made statements, sang songs, and chanted slogans relating to their beliefs about the need for greater environmental protection of the North Kalmiopsis area. The demonstration was widely publicized.

Defendants did not have permission to be on, or otherwise to interfere with the use of, plaintiffs personal property, and they knew that they did not. Defendants’ actions caused part of plaintiffs logging operation to be suspended for most of a day.

Defendants were arrested and charged with criminal mischiefin the third degree, ORS 164.345.³ After atrial to the court on stipulated facts, defendants were convicted. Each defendant served two weeks in jail, and each was ordered to pay a $250 fine and to make full restitution to plaintiff for its lost revenues resulting from defendants’ actions.

Plaintiff then filed this civil action against defendants. As material here, the complaint alleged that defendants committed a trespass by “intentionally and wrongfully interfering with and depriving Plaintiff of the use and possession of [its] logging equipment.” Plaintiff sought compensatory damages for lost revenues in the amount of $7,818.26, plus punitive damages of $50,000.

Defendants conceded liability for compensatory damages (although they disputed the amount). As an affirmative defense to the claim for punitive damages, they asserted that Article I, sections 8 and 26, of the Oregon Constitution, and the First and Fourteenth Amendments to the Constitution of the United States precluded the imposition of punitive damages for their actions. On the same ground, defendants later moved for partial summary judgment and for a directed verdict. The trial court denied each motion and submitted plaintiffs claim for punitive damages to the jury. Defendants did not request an instruction that would have limited the jury’s consideration to punitive damages based on non-expressive conduct. The jury returned a verdict in plaintiffs favor, awarding $5,717.34 in compensatory damages and $25,000 in punitive damages. Defendants moved for judgment notwithstanding the verdict on the claim for punitive damages, continuing to assert the same constitutional theories. The trial court denied that motion and entered judgment for plaintiff.

Defendants appealed, raising two assignments of error. The first related to defendants’ argument that punitive damages are constitutionally barred in this case. The second related to the admission of certain evidence. The Court of Appeals considered both assignments of error and affirmed. Huffman and Wright Logging Co. v. Wade, supra. Defendants sought review only with respect to the constitutionality of the award of punitive damages, and we allowed their petition.⁴

Defendants contend that, as a matter of law, no punitive damages are recoverable, because all their activity was “expressive conduct” protected from an award of punitive damages by the state and federal constitutions. Defendants make no particularized argument that any one segment of their activity was separately immune from an award of punitive damages. Accordingly, our inquiry is whether any of defendants’ activities constitutionally could support an award of punitive damages. If any of their activities could do so, then the trial court did not err in allowing the issue of punitive damages to go to the jury and in refusing to disturb the jury’s verdict.

ARTICLE I, SECTION 8

The jury awarded compensatory and punitive damages for trespass to chattels. From the evidence presented, the jury could have found that the acts of trespass were defendants’ climbing on plaintiffs logging equipment, chaining themselves to it, affixing an object to it, and rendering the equipment inoperable during that time. Although those acts undoubtedly had a communicative effect, in the sense that most purposive human activity communicates something about the frame of mind of the actor, the acts were conduct, not speech.⁵ The question becomes, then, whether defendants are nonetheless constitutionally immune from potential responsibility for punitive damages because of the message that their conduct assertedly was trying to convey, the reason for their conduct, or the fact that speech accompanied their conduct.

Two lines of cases from this court demonstrate that the answer under Article I, section 8, is “no.” The first line of cases, beginning with State v. Robertson, 293 Or 402, 649 P2d 569 (1982), evaluates whether various criminal laws violate Article I, section 8.⁶ In the second line of cases, beginning with Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979), this court has addressed directly the availability, under Article I, section 8, of punitive damages for various torts involving speech.

Although the two lines of cases have developed independently, an exhmination of their methodologies and rationales discloses their fundamental interrelatedness. The imposition of punitive damages is akin to the imposition of criminal responsibility because, where punitive damages “beyond any actual injury are allowable, the plaintiff collects them as a form of public punishment. ’ ’ Hall v. The May Dept. Stores, 292 Or 131, 146, 637 P2d 126 (1981).⁷ See also ORS 18.540 (a portion of award of punitive damages goes to the state); Oberg v. Honda Motor Co., 316 Or 263, 281-83, 851 (1993) (punitive damages are allowable to punish a wrongdoer). We also note that, although cases involving intentional torts usually hinge on common-law rules rather than on statutes, those common-law rules likewise are enforced by courts.

Turning to the first line of cases, this court’s most recent discussion of the method of analyzing a criminal law under Article I, section 8, is found in State v. Plowman, 314 Or 157, 838 P2d 558 (1992). There, the court summarized the applicable principles derived from State v. Robertson, supra:

“In State v. Robertson, supra, this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on the pursuit or accomplishment of forbidden results. 293 Or at 416-17. The court reasoned that a law of the former type, a law ‘written in terms directed to the substance of any “opinion” or any “subject” of communication,’ violates Article I, section 8,

“ ‘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.’ Id. at 412.

“Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. The coercion law at issue in Robertson was of that category. Id. at 417-18. Such laws are analyzed for overbreadth:

“ ‘When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth.’ Ibid.

“The second kind of law also focuses on forbidden effects, but without referring to expression at all. Of that category, this court wrote:

“ ‘If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to Article I, section 8.’ Id. at 417.” State v. Plowman, supra, 314 Or at 163-64 (emphasis in original; footnote omitted).

Applying those principles, this court held that ORS 166.165(l)(a)(A)⁸ is a law in the third of the described categories and is not facially invalid under Article I, section 8. Id. at 167.

State v. Plowman, supra, contains two other pertinent lessons. The first is that a person’s reason for engaging in punishable conduct does not transform conduct into expression under Article I, section 8. See id. at 165 (intimidation statute proscribes and punishes committing an act, not holding a belief, even though the defendants may have committed the act because they held a belief). The second lesson is that speech accompanying punishable conduct does not transform conduct into expression under Article I, section 8. See id. at 167 (words can be used as evidence to prove a crime, without making words the crime itself or an element thereof).⁹

The three categories of laws recognized by Robertson — (1) laws that are written in terms directed to the substance of an opinion or subject of communication, (2) laws that focus on forbidden effects but expressly prohibit expression to achieve those effects, and (3) laws that focus on forbidden effects and do not refer to expression at all — will become central to an understanding of the analysis for punitive damages liability set out below.

Without expressly using the same analysis as Robertson, this court has addressed the availability, under Article I, section 8, of punitive damages for intentional torts involving speech. The results in the punitive damages cases nevertheless are analogous to, and consistent with, the Robertson line of cases.

The first of the decisions involving punitive damages was Wheeler v. Green, supra. In Wheeler, the plaintiff sued the defendants for defamation. The jury awarded both compensatory and punitive damages. On appeal, this court held that the plaintiff could not obtain punitive damages for defamation. The court recognized that defamatory statements are “an abuse of the right of free expression for which a person is to be held responsible under the provisions of Article I, § 8.” 286 Or at 118. Nonetheless, the court limited a defendant’s “responsibility” in a defamation case to compensatory damages. Id. at 118-19. In reaching that result, the court expressed concern that, “[i]n the sensitive area of free expression, * * * the threat of large damage recoveries can easily inhibit the exercise of constitutionally protected expression, as well as its abuse.” Id. at 119.

The content of speech or writing is an element of the tort of defamation:

“an action for libel must be predicated upon ‘written’ words, which includes any printed, painted or other nontransient method of conveying a thought; the action of slander dispenses with the necessity for the ‘writing.’ * * *

“* * * [T]he plaintiff has stated a cause of action if the [defendant’s written or spoken communication to another] subjects [the plaintiff] to public hatred, contempt or ridicule.” Reiman v. Pac. Devel. Society, 132 Or 82, 86-89, 284 P 575 (1930) (citation omitted).

See also Bank of Oregon v. Independent News, 298 Or 434, 437, 693 P2d 35 (1985) (describing elements of defamation claim and categories of affirmative defenses that are available). The tort of defamation is, in that sense, analogous to the first category of laws described in State v. Robertson, supra, laws that are written in terms directed to the substance of an opinion or subject of communication.

The next case in which this court confronted the impact of Article I, section 8, on the availability of punitive damages involved an intentional tort other than defamation. In Hall v. The May Dept. Stores, supra, the plaintiff sued her employer for intentional infliction of severe emotional distress for statements made to her in a one-on-one interrogation by a store security officer. She received compensatory and punitive damages. Relying on Wheeler v. Green, supra, the court struck the award of punitive damages. Hall considered the differences between the torts of defamation and intentional infliction of severe emotional distress and concluded that punitive damages would have been permitted had the employer committed the tort by “any conduct other than” speech:

“Plaintiff seeks to distinguish the rule of Wheeler v. Green because ‘speech is the gravamen of the tort of defamation,’ whereas, according to plaintiffs argument, [the security officer’s] speech in this case was only incidental to the tort of intentional infliction of severe emotional distress. The distinction would have weight if the tort in this case rested on any conduct other than [the security officer’s] accusations to plaintiff in the course of his interrogation. Of course infliction of emotional distress, unlike defamation, can be committed by other means than expression or communication. But in this case we have found no other conduct that could qualify as this tort. ’ ’ Hall v. The May Dept. Stores, supra, 292 Or at 146-47 (citation omitted).

Lewis v. Oregon Beauty Supply Co., 302 Or 616, 733 P2d 430 (1987), elaborated on the distinction, identified in Hall, between conduct and speech. In Lewis, the plaintiff sought general and punitive damages for intentional interference with an economic relationship. She had refused to date a warehouse supervisor, who reacted in a hostile manner that included a mix of both conduct and speech:

“[The supervisor] exhibited his hostility towards plaintiff in the workplace. He ‘glared’ at her from outside her office and told other employes that she had given him a venereal disease. He swore at her, called her a whore, searched her personal belongings and threw things at her. He refused to cooperate with her when she required information necessary to function in her job and would ‘fling’ merchandise and paperwork into her office. On one occasion he intentionally slammed a door which hit plaintiff. He also told other employes that plaintiff would not be working at [the warehouse] much longer.” 302 Or at 618.

The plaintiff left her employment and sued her former employer and the supervisor. This court upheld the jury’s award of punitive damages against the supervisor, because the supervisor’s “non-expressive” conduct provided a constitutionally permissible basis for them.

“[The supervisor] did not request an instruction that would have required the jury to separate expression from noncommunicative conduct in its determination of punitive damages. He considered all his acts privileged expression exempt from a punitive damages award. It is obvious, however, that some of his acts, such as searching plaintiffs property and intentionally slamming the door into her, are non-expressive conduct for which punitive damages could properly be awarded. Because [the supervisor] failed to ask for a punitive damages instruction limiting the jury’s consideration to non-expressive conduct, we uphold the punitive damages award.” 302 Or at 629.

The content of speech is not an element of the torts involved in Hall and Lewis — the torts of intentional infliction of severe emotional distress and intentional interference with an economic relationship. However, those torts readily can be committed by speech, as well as by conduct, or by a combination of the two:

“To state a claim for intentional infliction of severe emotional distress, a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant’s acts were the cause of the plaintiffs severe emotional distress, and (3) the defendant’s acts constituted an extraordinary transgression of the bounds of socially tolerable conduct. * * *

“* * * To state a claim for intentional interference with contractual relations, a plaintiff must plead that the defendant, either with an improper objective or through improper means, purposefully interfered with the plaintiffs contractual relationship with some third party, thereby causing the plaintiff damage.” Sheets v. Knight, 308 Or 220, 236-37, 779 P2d 1000 (1989).

Because the intentional torts analyzed in Hall and Lewis do not contain speech as an element but readily can be committed, in whole or in part, by speech, those torts are analogous to laws in the second Robertson category, laws that focus on forbidden effects but expressly prohibit expression to achieve those effects.

In the criminal law context, such laws must be narrowed so that they avoid punishing privileged communication. State v. Plowman, supra, 314 Or at 164; State v. Robertson, supra, 293 Or at 417-18. Hall and Lewis stand for an analogous proposition: In actions involving liability for intentional torts that permit liability for specified effects but that commonly are committed, at least in part, by speech, punitive damages are available only for those aspects of the tortfeasor’s conduct that do not constitute privileged expression, and the court must give an appropriate limiting instruction if a defendant requests it.

So far, we have concluded that an analogy may be drawn between laws falling into the first Robertson category and intentional torts, such as defamation, that by definition permit liability for the content of speech, and that a similar analogy may be drawn between laws falling into the second Robertson category and intentional torts, such as intentional infliction of severe emotional distress, in which the content of speech is not an element but in which the specified harm may be caused by speech. We turn now to the question whether there also are some intentional torts that are analogous to laws in the third Robertson category, that is, intentional torts that permit liability for harm not caused by speech at all. We conclude that there are, indeed, some intentional torts that are concerned only with forbidden effects and that the tort that we consider in this case, trespass to chattels, is such a tort.

“In actions for trespass to personal property the gist of the action is the disturbance of the plaintiffs possession.” Swank v. Elwert, 55 Or 487, 496, 105 P 901 (1910). That is, the tort of trespass to chattels focuses on the effect — the disturbance of the owner’s possession. The content of speech is not an element of the tort. Moreover, this tort cannot readily be committed by speech, even if speech accompanies the trespass.

As demonstrated above, criminal responsibility may rest on a defendant who violates a law that is directed to forbidden effects and does not refer to expression at all, without running afoul of Article I, section 8. So, too, responsibility for punitive damages may accompany an intentional tort — like the tort of trespass — that permits liability for harm not caused by speech. With respect to such a tort, liability for both compensatory and punitive damages rests on conduct. A defendant still may assert, however, that punitive damages cannot constitutionally be applied to the particular conduct involved. See State v. Plowman, supra, 314 Or at 163-67 (discussing a defendant’s conduct analyzed under a criminal intimidation statute that falls into the third Robertson category). Where a defendant in a third-category tort action makes such an assertion, the defendant — like a defendant in a second-category tort case — may be entitled to a limiting instruction.

In summary, having examined the two lines of cases and demonstrated their symmetry, we hold that the first step in determining the availability of punitive damages for an intentional tort is to put the common-law tort on the same footing as all other laws, i.e., to place the tort in one of the three Robertson categories. See City of Hillsboro v. Purcell, 306 Or 547, 553, 761 P2d 510 (1988) (“The nature of the prohibition, either civil or criminal, is immaterial to the first sentence of Article I, section 8, which directs that ‘no law’ shall restrict or restrain speech, writing, [or] printing.”). If a tort permits liability for the content of speech, punitive damages are not recoverable. Wheeler v. Green, supra.10 If a tort permits liability for speech-caused harm, then a defendant who requests it is entitled to an instruction limiting the tortious predicate for punitive damages to conduct not protected by the free speech provision of Article I, section 8. Lewis v. Oregon Beauty Supply Co., supra, 302 Or at 629. If a tort permits liability for harm not caused by speech, but the defendant contends that Article I, section 8, prohibits an award of punitive damages for the particular conduct involved, then a defendant who requests it likewise may be entitled to a limiting instruction.

We apply the foregoing principles to this case. As discussed above, the tort of trespass to chattels, which is the predicate for punitive damages here, falls within the third Robertson category. Defendants contend that their conduct was constitutionally protected expression, immune from liability for punitive damages. Because defendants did not seek a limiting instruction, however, they are left to argue in this court what they have argued throughout: that all their conduct was entitled to immunity from punitive damages.

Defendants acknowledge their trespassory conduct but argue that, because of the message that their conduct sought to convey, the reason for their conduct, and the speech that accompanied their conduct, their trespassory conduct should itself be deemed protected speech. They emphasize the passage in Lewis v. Oregon Beauty Supply Co., supra, that considered whether the defendant had engaged in any “non-expressive conduct for which punitive damages could properly be awarded.” 302 Or at 629. Defendants argue that their activities in this case consisted of “expressive” conduct and that “expressive” conduct is protected by Article I, section 8.

Defendants’ conduct consisted of several acts: climbing on plaintiffs logging equipment, chaining themselves to the equipment, affixing an object to one piece of logging equipment, and thereby disrupting plaintiffs use of its property. We conclude that the jury was entitled to find that defendants’ acts caused the disturbance of plaintiffs possession of its personal property, wholly apart from any motivating opinion, underlying message, or accompanying speech. The trespassory acts were, therefore, “non-expressive conduct” within the meaning of Lewis v. Oregon Beauty Supply Co., supra. The message that defendants sought to convey by their conduct, the reason for their conduct, and the spoken and written words accompanying their conduct did not transform defendants’ conduct into speech.

Defendants also argue that, because there was evidence of both trespassory acts and speech, “it is extremely likely that the defendants were in fact punished by the jury for their politically unpopular views.” Defendants’ factual premise is speculative. Even if defendants are correct, however, the power to avoid being punished for any protected expression lay in their own hands. As this court’s prior cases demonstrate, Article I, section 8, of the Oregon Constitution, protects persons from punishment for their views or for their words, but it does not insulate tortious conduct from punitive damages merely because the tortious conduct is accompanied by the expression of views. Liability for defendants’ conduct in this case could have been assessed independently of any accompanying expression of views. A properly instructed jury could have awarded punitive damages based on the predicate of defendants’ trespassory conduct alone. Defendants did not choose to request a limiting instruction. Having failed to request such an instruction, defendants cannot prevail in their Article I, section 8, challenge to the award of punitive damages against them.

ARTICLE I, SECTION 26

Defendants also rely on Article I, section 26, of the Oregon Constitution, which protects the rights to assemble peaceably and to petition the government, although they cite no supporting authority. We conclude that Article I, section 26, does not shield defendants from liability for punitive damages in this case.

First, with respect to the right to assemble peaceably, nothing in Article I, section 26, suggests that that right includes a right to disrupt possession of the private property of another, at least when, as here, the private property is not open to public use. Compare Lloyd Corporation v. Whiffen, 315 Or 500, 849 P2d 446 (1993) (recognizing a right to gather initiative-petition signatures in common areas of large public shopping centers, in a manner that does not interfere with commercial purposes, under Article IV, section 1, of the Oregon Constitution, the initiative and referendum provision).¹¹

Second, with respect to the right to petition the government, defendants’ trespassory acts were not themselves a petition to the government. The direct recipients of the message accompanying defendants’ acts were plaintiff and the news media. The intention ultimately to affect government policy is not sufficient, by itself, to invoke the protection of Article I, section 26.

Article I, section 26, does not bar the award of punitive damages against defendants in this case.

FIRST AMENDMENT

Having rejected defendants’ state constitutional arguments, we turn to their arguments under the federal constitution. See State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983) (explaining methodology). Defendants assert that the First Amendment to the Constitution of the United States protects them from an award of punitive damages in a case of this kind.

The Supreme Court of the United States recently reaffirmed the principle that “ ‘[violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact * * * are entitled to no constitutional protection.’ ” Wisconsin v. Mitchell, 508 US _, 113 S Ct 2194, 2199, 124 L Ed 2d 436 (1993) (quoting with approval Roberts v. United States Jaycees, 468 US 609, 628, 104 S Ct 3244, 82 L Ed 2d 462 (1984)). The Court distinguished a law that is “explicitly directed at expression” from one that is “aimed at conduct unprotected by the First Amendment.” 113 S Ct at 2201.

We already have held that the tort of trespass to chattels is aimed at conduct not protected by the free expression provision of the Oregon Constitution. The same conclusion obtains with respect to the First Amendment. In this case, defendants’ conduct, although accompanied by expressive activity, produced a special cognizable harm (an interference with plaintiffs possessory interest in its property), distinct from any communicative impact. See Adderly v. Florida, 385 US 39, 47, 87 S Ct 242, 17 L Ed 2d 149 (1966) (Constitution of the United States did not prevent evenhanded enforcement of a criminal trespass statute against demonstrators who refused to leave entrance of jail; “[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated”).

In addition, the First Amendment does not apply to private property that is not devoted to public use. For an owner of private property to be subject to the proscriptions of the First Amendment, the property must “assume to some significant degree the functional attributes of public property devoted to public use.” Central Hardware Co. v. NLRB, 407 US 539, 547, 92 S Ct 2238, 33 L Ed 2d 122 (1972). Devotion of private property to public use requires, at a minimum, the owner’s invitation to the general public to enter the premises. See Marsh v. Alabama, 326 US 501, 506, 66 S Ct 276, 90 L Ed 265 (1946) (“The more an owner * * * opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”). See also Lloyd Corporation v. Whiffen, supra, 315 Or at 510-11 (citing and agreeing with the above-quoted passage from Mars h v. Alabama). Nothing in the First Amendment cases of the Supreme Court suggests that a different rule applies to private personal property than to private real property; the former, like the latter, is not subject to the proscriptions of the First Amendment unless it is devoted to public use. Here, plaintiff did not invite members of the general public to climb on or chain themselves to its equipment or otherwise subject itself to the proscriptions of the First Amendment.

Finally, defendants rely on the assembly and petition clauses of the First Amendment. They argue that the imposition of punitive damages violates their federally protected rights to assemble and to petition the government. As noted, however, in the absence of evidence that the personal property in question is devoted to public use, the rights secured by the First Amendment do not include the right to disrupt possession of private property against the will of the owner — that is, do not authorize trespass. In addition, as we observed in discussing defendants’ Article I, section 26, claim, defendants’ acts did not constitute a petition to the government.

The First and Fourteenth Amendments do not preclude an award of punitive damages against defendants in this case.

CONCLUSION

The jury’s verdict awarding plaintiff $25,000 in punitive damages was permissible. The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1 Article I, section 8, 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.”

Article I, section 26, provides:

“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances [sic].”

2 The First Amendment provides in part:

“Congress shall make no law * * * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment. New York Times Co. v. Sullivan, 376 US 254, 264 n 4, 84 S Ct 710, 11 L Ed 2d 686 (1964).

3 ORS 164.345 provides:

“(1) A person commits the crime of criminal mischief in the third degree if, with intent to cause substantial inconvenience to the owner or to another person, and having no right to do so nor reasonable ground to believe that the person has such right, the person tampers or interferes with property of another.

“(2) Criminal mischief in the third degree is a Class C misdemeanor.”

4 Amicus curiae American Civil Liberties Union Foundation of Oregon, Inc., discusses the evidentiary issue in its brief to this court. We do not consider the evidentiary issue, because defendants did not seek review of it.

5 In this opinion, we use the terms “speech” and “expression” interchangeably to refer to “the free expression of opinion, or * * * the right to speak, write, or print freely on any subject whatever” provided in Article I, section 8, of the Oregon Constitution.

6 The same analytic construct applies under Article I, section 8, to laws that regulate but do not criminalize speech. See, e.g., Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993) (applying the .Ro&erfsore analysis to hold unconstitutional a law regulating commercial telephone solicitation).

7 To the extent that punitive civil damages exist, not only to punish conduct, but also to deter others from similar acts, Wheeler v. Green, 286 Or 99, 118, 593 P2d 777 (1979), they are a form of indirect regulation, also amenable to the Robertson analysis. See note 6, ante. Compensatory civil liability for intentionally tortious conduct is not, however, within that same analytic construct, because Article I, section 10, of the Oregon Constitution, separately guarantees a “remedy by due course of law for injuiy” to “person, property, or reputation.” See Wheeler v. Green, supra, 286 Or at 118-19 (construing Article I, sections 8 and 10, together to permit damages in a defamation action for compensatory but not punitive damages).

8 ORS 166.165(l)(a)(A) makes it a crime for two or more persons, acting together, to “[i]ntentionally, knowingly, or recklessly cause physical injury to another because of their perception of that person’s race, color, religion, national origin or sexual orientation.”

9 An armed robber cannot escape responsibility for his or her conduct by pointing out that “stick 'em up” is speech or by reciting the Gettysburg address during the robbery. Nor will giving to the destitute all money that the robber obtains at the point of a gun excuse the crime.

10 In the context of analyzing a criminal law, State v. Robertson, supra, 293 Or at 412, noted an exception when “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.”

11 The result reached by the majority in the Lloyd Corporation v. Whiffen signature-gathering case hinges expressly on the unique history of the initiative right in Oregon and the fact that the property in question was open to broad public use. 315 Or at 509-15. By contrast, in this case, the right to assemble and petition the government for grievances is a common state and federal right, and the logging equipment in question is nothing like the common area of a large commercial shopping center.