State v. Maynard

5 P.3d 1142, 168 Or. App. 118, 2000 Ore. App. LEXIS 906

• Court: Court of Appeals of Oregon
• Decided: May 31, 2000
• Docket: CC 10-92-06551; CA A81182
• Status: Published

Opinions

BREWER, J.

In State v. Maynard, 138 Or App 647, 910 P2d 1115 (1996), this court held that the prohibition of ORS 167.065(l)(a)¹ against furnishing materials to minors that depict “sexual conduct” or “sexual excitement” violated Article I, section 8, of the Oregon Constitution.² The Supreme Court has since vacated that decision and remanded the case for our reconsideration in light of its decision in State v. Stoneman, 323 Or 536, 920 P2d 535 (1996).³ For the reasons that follow, we hold that we erred in our former conclusion that ORS 167.065(l)(a) does not focus on preventing harmful effects that the legislature may constitutionally proscribe. Nevertheless, we adhere to our ultimate holding because the statute is unconstitutionally overbroad.⁴

We begin our analysis with consideration of the Supreme Court’s decision in Stoneman. The defendant there was indicted for purchasing a magazine and a video containing visual reproductions of children engaged in sexually explicit conduct, in violation of ORS 163.680 (1987).⁵ The trial court sustained the defendant’s demurrer to the charge and held that the statute violated Article I, section 8. This court affirmed on appeal,⁶ and the Supreme Court reversed on review.

The court first rejected the state’s contention that it should modify its traditional approach by balancing the public interest in protecting children from harm against the burden on freedom of expression imposed by the statute:

“We reject the state’s suggestion that we abandon the rule that the court traditionally has employed in resolving Article I, section 8, issues, in recognition of the particular importance of the legislative objective at issue here.” 323 Or at 542-43.

The court then began its analysis under Article I, section 8. See generally State v. Robertson, 293 Or 402, 649 P2d 569 (1982); State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den 508 US 974 (1993). It held that the statute described and prohibited commerce in certain forms of communication. The court next concluded that the prohibition against purchasing visual reproductions of children engaged in sexually explicit conduct could not be justified as a historical exception to the prohibition of Article I, section 8, pursuant to Statutes of Oregon 1854, chapter XI, section 10, pp 210-11.⁷ In its next step, the Supreme Court parted with our analysis in Stoneman, a departure with significant implications for this case. The court concluded that ORS 163.680 (1987) was concerned with harm to children. Stoneman, 323 Or at 545. In doing so, the court said that “[t]he Court of Appeals’ majority was wrong in holding to the contrary merely because the statute did not describe the communication, the commerce in which is forbidden, specifically in terms of harmful effects.” Id.

Critical to the Supreme Court’s decision was the view that the context of the statute, in addition to its text, informs an understanding of the policy underlying the statute. Id. at 546. Relying on the taxonomy established in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11, 859 (1993), the court examined other statutory provisions relating to ORS 163.680, including a defense under which the purchase of an otherwise prohibited reproduction was legal “so long as that reproduction is not the product of an act of actual sexual abuse of a child.” Stoneman, 323 at 547. The court then concluded that the subject statute, as well as the entire part of the criminal code in which it was located, “was aimed at preventing and punishing conduct— the subjection of [minors] to sexual exploitation for the purposes of visual recording.” Id. at 548. Because the communication prohibited a “continuation and an integral part of the underlying harmful acts,” the statute was not invalid on its face, given that the legislature is authorized to regulate commerce in communication derived from the sexual exploitation of children. Id. at 548-49.

Finally, the court upheld the statute against an overbreadth challenge, interpreting it as “narrowly tailored to reach only forbidden effects [i.e., commerce that is a direct fruit of child abuse] and [that it] did not extend to privileged expression.” Id. at 550. With the foregoing in mind, we assess the impact of Stoneman on the constitutional challenge to ORS 167.065(l)(a).

Defendant in this case was convicted of furnishing obscene materials to minors. ORS 167.065(l)(a). In our earlier decision, we stated that the issue on appeal was whether the statutory prohibition against furnishing materials to minors that depict “sexual conduct”⁸ or “sexual excitement”⁹ violated Article I, section 8.¹⁰ Maynard, 138 Or App at 652.

We next determined that materials depicting sexual conduct or sexual excitement are expression encompassed by Article I, section 8. That determination is consistent with Stoneman and other relevant Supreme Court decisions. See State v. Henry, 302 Or 510, 515, 732 P2d 9 (1987).

We next addressed whether the statute was directed at harmful effects resulting from the exposure of children to sexually explicit materials or, alternatively, whether it was directed to the content of an opinion or communication. Maynard, 138 Or App at 652-54. We relied on our examination of the text of the statute and found that it neither expressly nor by clear implication identified the effects to be avoided. Therefore, we concluded that the statute was “directed solely at prohibiting certain communication with minors.” Id. at 654. We did not examine related statutory provisions for context in order to ascertain any effect forbidden by the statute. In light of Stoneman, our analysis was therefore incomplete. We now examine the context of the statute to determine whether it sufficiently identified the harmful effects it sought to prevent.

A statute’s context includes related statutory provisions. PGE, 317 Or at 611. ORS 167.065(1) is part of a broader statutory framework that addresses the protection of children from exposure to obscene material. ORS 167.065 to ORS 167.085.¹¹ That framework includes ORS 167.085, which creates affirmative defenses to alleged violations of ORS 167.065(l)(a). It provides:

“In any prosecution under ORS 167.065 to [ORS] 167.080, it is an affirmative defense for the defendant to prove:

“(1) That the defendant was in a parental or guardianship relationship with the minor;

“(2) That the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization;

“(3) That the defendant was charged with the sale, showing, exhibition or display of an item, those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some legitimate purpose therein other than titillation;

“(4) That the defendant had reasonable cause to believe that the person involved was not a minor.”

ORS 167.085(1) and (2) exempt various categories of persons and organizations from the reach of ORS 167.065. Taking those exemptions into account, ORS 167.065 is directed exclusively at persons and organizations other than parents, guardians, schools, museums, libraries, and employees of the last three named organizations. The population of potential offenders is reduced further by two additional exemptions. First, the defendant may establish that he or she reasonably believed that the target of the material was not a minor. ORS 167.085(4). Second, and more germane to this case, it is a complete defense that the materials form merely an “incidental part of an otherwise nonoffending whole” and serve a purpose other than titillation. ORS 167.085(3).

The word “titillation” was not defined by the legislature in ORS 167.085 or any related statute. In analyzing the text of the statute for definition, words of common usage are given their plain, natural and ordinary meanings. PGE, 317 Or at 611. “Titillate” is defined in Webster’s Third New Infl Dictionary, 2400 (unabridged ed 1993) to mean “to excite pleasurably or agreeably: arouse by stimulation.” In the context of ORS 167.065(l)(a), which refers to depictions of sexual conduct and sexual excitement, titillation logically refers to sexual excitement or arousal. Although the defense provided by ORS 167.085(3) does not expressly state that the person to be protected from titillation is the victim of the offense, that motive is obvious from the overall framework of ORS 167.065 to ORS 167.085. The victim of each offense in that group of statutes must be a minor. In light of that common theme, it would make no sense to shield a defendant from criminal liability merely because that defendant did not primarily intend to titillate him or herself by engaging in the prohibited conduct. Thus, the context of ORS 167.085(3) plainly shows that the defense applies to those materials not primarily intended to titillate the victim. We further note that ORS 167.085(3) looks to the purpose of the materials and does not ask whether that purpose was accomplished. Thus, if the defendant attempts to titillate a minor by proscribed means, then the defense does not apply, regardless of whether the attempt succeeds.

Stoneman is not the first Supreme Court decision to remind us that we may look beyond the express language of a statute to ascertain the harmful effects that the legislature sought to prevent through its enactment. See, e.g., Moser v. Frohnmayer, 315 Or 372, 379, 845 P2d 1284 (1993); Plowman, 314 Or at 165-66. We echo the view of Judge De Muniz in his dissent from our first decision in this case:

“ORS 167.065(l)(a) makes no explicit reference to what effects it seeks to prevent. However, the state contends that the statute is ‘aimed at protecting children from the harmful effects of viewing hardcore pornography.’ I can conceive of no other purpose, and have no difficulty inferring that was the legislature’s purpose.” Maynard, 138 Or App at 687.

Therefore, in context with ORS 167.085, we conclude that ORS 167.065(l)(a) does focus on effects deemed harmful by the legislature.

Our conclusion contrasts with Judge Armstrong’s concurring analysis in our first decision in this case. Id. at 661-62. Judge Armstrong concluded that the statute does not focus on harm to children, because

“it does not apply to parents and guardians who furnish obscene materials to minors for the purpose of harming or endangering their welfare, because those people enjoy a blanket exemption from the statute. * * *

«* * * * *

“If the material were inherently harmful, the law would not allow the exceptions to its coverage that it does.” Id.

We acknowledge the irony that parents, guardians, and even museum employees who may prey on children by furnishing them with obscene materials are protected from conviction under ORS 167.085(1) and (2), whereas another person might not be shielded under any of the statutory defenses, irrespective of motive. We also recognize that in Stoneman, the court emphasized that the statute under review “prohibited commerce in material, the production of which necessarily involves harm to children.” 323 Or at 546 (emphasis in original). However, the “necessity” implicated is that harm must either result from the expression itself¹² or, alternatively, as in Stoneman, must inhere in the conduct that created the expression. Id. Stoneman does not hold that it is necessary for all such harm to be reached.

The fact that the legislature failed to reach all potential culprits does not mean that it believed attempted titillation of minors by means of obscene materials is not necessarily harmful. In fact, the contrary is evident. There is no plausible explanation for the creation of a defense such as is provided in ORS 167.085(3) for any class of defendants unless the legislature deemed such titillation to be harmful to minors. A search for focus on harmful effects should not demand perfect abolition of the harm. Otherwise, we risk overlooking what the legislature plainly did seek to accomplish.

We also disagree with the narrow reading that Judge Armstrong gives to the holding in Stoneman in his concurrence on remand. The concurrence asserts that “the problem [with the statute] is that the prohibition is written in terms of the content of the material rather than the purpose for which it is furnished.” 168 Or App at 152 (emphasis added) (Armstrong, J., concurring). However, the concurrence does not take into account Stoneman’s lesson that a search for forbidden effects extends to the context of the statute creating a crime and is not confined to an examination of the elements of the offense. 323 Or at 547-48. That context may include any relevant defenses to the crime that are found in related statues. Id. We have followed that holding in concluding that the defense found in ORS 167.085(3) identifies the legislature’s focus on lawfully forbidden effects.¹³ Although the legislature’s purpose in enacting ORS 167.065(l)(a) may have been inartfully expressed, it is not obscure. That purpose is to protect children from the effects of hardcore pornography. In light of Stoneman, our prior holding to the contrary, based on an examination of the text of ORS 167.065 alone, was not correct. As a consequence, we must complete the Article I, section 8, analysis foreshortened in our first decision.

Following the order of analysis in Robertson, we next turn to the question whether the forbidden harm is such that the legislature may restrict expression in confronting it. State v. Moyle, 299 Or 691, 699-702, 705 P2d 740 (1985). The legislature’s power to identify and proscribe effects that it considers harmful is plenary, subject to constitutional limitations. Id. at 699. Stoneman confirmed that the legislature is empowered to restrict expression in order to prevent harm to children and, in that case, the court concluded that ORS 167.680 (1987) was so focused. 323 Or at 549. The court held that the prohibited material could not be produced without harming children by subjecting them to the crime of sexual abuse. Id. It was not the criminality of the sexual abuse but, rather, the fact that the forbidden communication necessarily involved harm to children that was decisive. Id. at 547 n 15. In this case, the challenged statute seeks to prevent harm to children by prohibiting attempts to titillate them by means of sexually explicit materials. The prohibition is directed at effects that the legislature has determined are necessarily harmful to children. In light of Stoneman, the legislature may restrict expression in order to prevent such effects.

We next consider whether the statute reaches communication that cannot be excluded from its scope by a permissible narrowing interpretation — i.e., whether it is over-broad. Moyle, 299 Or at 701-02; Robertson, 293 Or at 418. A claim of overbreadth asserts that the terms of a law reach conduct protected by constitutional guarantees, including the freedoms to speak and write embodied in Article I, section 8. Id. at 410. “A legislature can make a law as ‘broad’ and inclusive as it chooses unless it reaches into constitutionally protected ground. The clearer an ‘overbroad’ statute is, the harder it is to confine it by interpretation within its constitutionally permissible reach.” Id. (citing State v. Blocker, 291 Or 255, 261, 630 P2d 824 (1981)). The court in Stoneman found little difficulty in concluding that ORS 163.680 (1987) survived an overbreadth challenge. The court interpreted the statute to apply only when children are actually engaged in sexually explicit conduct. Therefore, it concluded that the statute reached only materials whose production actually harmed children. Here, the analysis is not so straightforward, and it is constrained by prior decisions of this court that have governed the interpretation of ORS 167.065 and ORS 167.085(3) for many years.

We begin with the observation that laws such as ORS 167.065(l)(a), which focus on forbidden effects, must be further subdivided in an analysis under Article I, section 8. Statutes that are expressed only in terms of forbidden effects and that do not refer to expression at all are nevertheless subject to case-by-case review for potentially unconstitutional application to expression. Robertson, 293 Or at 417; Plowman, 314 Or at 164. On the other hand, where, as here, a statute expressly prohibits expression used to accomplish forbidden effects, it must be analyzed for overbreadth. The distinction is meaningful because Oregon’s constitutional jurisprudence prohibits the narrowing of a statute that restricts expression used to achieve forbidden results through the judicial substitution of a wider set of exclusions from its scope for the set chosen by the legislature. Robertson, 293 Or at 436. The rationale for that prohibition lies in the very wording of Article I, section 8, which forbids the enactment of legislation that may only be salvaged through such judicial construction. Id. We do not understand Stoneman either to address that precept or to alter its importance.¹⁴

In State v. Frink, 60 Or App 209, 653 P2d 553 (1982), we held that the portion of ORS 167.065(1)(a) that proscribed the furnishing of materials that depict nudity was unconstitutionally overbroad because it prohibited all depictions of nudity regardless of erotic content. We rejected the state’s argument that the statute could be saved by construing the prohibition in conjunction with the defense under ORS 167.085(3), because the defense applies only to the “sale, showing, exhibition or display of materials” while the crime of “furnishing” includes giving, renting, loaning, and otherwise providing material.

In rejecting the state’s argument under ORS 167.085, we concluded in Frink that

“[t]o do as the state argues would clearly require a ‘construction’ of the specific language of ORS 167.085(3) to include giving, renting, loaning or otherwise providing — all forms of furnishing.

“In other words, we would be required to broaden the defense in order to narrow the proscription. To do that, we would be inviting legislation proscribing free expression, leaving it to the courts to protect that freedom in individual cases. We may not do that. State v. Spencer, 289 Or 225, 611 P2d 1147 (1980); [Robertson].” 60 Or App at 215-16. (Footnote omitted.)

We reasoned in Frink that “the scope of the statute may not be narrowed by construction, because the free expression guarantee invoked by the defendant forbade the enactment of the statute.” Id. at 214. We relied on Robertson and quoted several passages from that decision, including the following:

“ ‘As the quotation from [Spencer] states, it is a prohibition expressly directed at lawmakers at the time of considering a proposed law and forbidding passage of any law that in terms restrains the “free expression of opinion” or restricts “the right to speak, write, or print freely on any subject whatever.” It does not invite the enactment of such laws, leaving it to courts to protect freedom of expression in individual cases. See 289 Or at 228.’ 293 Or at 413 n 10.” Id. at 215.

We reaffirmed the reasoning of Frink in State v. Woodcock, 75 Or App 659, 706 P2d 1012 (1985), rev den 300 Or 506 (1986). There, the defendant sold lapel buttons to minors containing slogans that were obscene. Once more, the state relied on ORS 167.085, this time to meet an over-breadth challenge to ORS 167.065(1)(b), which prohibited furnishing to minors “[a]ny book, magazine, paperback, pamphlet or other written or printed matter * * * which contains * * * obscenities.” We held:

“Our reasoning in Frink applies here. Because ORS 167.065(l)(b) applies to the giving, renting, loaning or otherwise providing materials containing ‘obscenities,’ regardless of the significance of the words in the context of the work taken as a whole, the statute is unconstitutionally overbroad under the Oregon Constitution.” Woodcock, 75 Or App at 662-63.¹⁵

The reasoning of Frink and Woodcock controls the overbreadth analysis in this case as well. Whether we approve or not, minors are regularly exposed to visual images, including television programs, movies, and videos that depict sexual conduct and sexual excitement in various levels of detail. Because ORS 167.065(1)(a) applies, regardless of the significance of such depictions in the context of the materials taken as a whole, it is overbroad. The state nonetheless renews the argument it made in Frink and Woodcock that the statute can be salvaged by interpreting its prohibition in concert with the defense provided by ORS 167.085(3). We reject that argument yet again. In doing so, we recognize that Frink and Woodcock were decided before the Supreme Court announced its methodology for statutory interpretation in PGE. In Stoneman, the court applied that methodology to define the word “simulation” so narrowly as to uphold the statute reviewed there. 323 Or at 540. However, in order similarly to save ORS 167.065(l)(a), it would be necessary to interpret the words “display,” “showing,” and “exhibition,” as employed in the defense, to encompass the full meaning of the verb “furnish” as the latter was explicitly defined by the legislature.

ORS 167.060(3) provides that “ ‘[furnish]’ means to sell, give, rent, loan or otherwise provide.” None of the words used to define “furnish” was further defined by the legislature. Because none of those words is apparently used in a technical sense, we apply their plain and ordinary meanings. PGE, 317 Or at 611. Viewed accordingly, the word “give” means “to confer the ownership of receiving giving a return.” Webster’s Third New Infl Dictionary at 959. The word “rent” means “to take and hold under an agreement to pay rent Id. at 1923. “Loan” means “to lend,” which in turn means “to give into another’s keeping for temporary use on condition that the borrower return the same or its equivalent.” Id. at 1293, 1326. The relevant ordinary meaning of “provide” is “to supply for use.” Id. at 1827.

The state attempts to demonstrate equivalence in the statutory terminology by focusing on the meaning of the word “showing,” as used in ORS 167.085(3). “Showing^’ also was not defined by the legislature. The ordinary meaning of the verb “show” includes “to cause or permit to be seen,” and “to offer for inspection.” Id. at 2105. The state contends that “[b]ecause one necessarily ‘shows’ an item to another when he sells, gives, rents, loans or otherwise provides it to that person, the affirmative defense in [ORS 167.085(3)] is invariably available on a charge of ‘furnishing’ obscene materials to a minor.” We disagree.

That argument falters because the statutory meaning of “furnish” includes acts of transfer and distribution such as “giving,” “renting,” and “loaning.” In contrast, the words “display,” “showing,” and “exhibition” ordinarily convey the act of presenting something for view. “Displays publicly” is defined in ORS 167.060(2) to mean “exposing, placing, posting, exhibiting, or in any way displaying * * “Exhibit,” on the other hand, is not defined in the obscenity statutes. The plain and ordinary meaning of “exhibit” is “to present to view.” Id. at 796.

The accepted meanings of each of the words used in the defense fall short of many illustrations of “furnishing.” For example, while the defense might apply to a movie theater’s showing of an R-rated movie, it would not apply to a video store rental of the same movie to a 17-year-old. Similarly, the showing of a music video depicting sexual conduct or excitement to a minor might not be prohibited, while giving a copy of the same video to a minor, regardless of purpose, would be a crime because the qualified defense does not apply. Such contrasting examples demonstrate that there is a significant body of expression covered by the prohibition that is not captured by the plain, natural, and ordinary meaning of the word “showing.” We do not understand PGE to authorize the linguistic transformation required to bridge that gap in meaning. Accordingly, the defense provided by ORS 167.085(3) does not, under any reasonable construction of its text, coincide with the full range of expression prohibited by ORS 167.065(l)(a).

It is true that both text and context must be examined at the first level of analysis under PGE. The state observes that ORS 167.085 expressly applies to a body of offenses that includes both “furnishing” and “sending,” as well as “exhibiting” and “displaying,” obscenities to children. For example, ORS 167.070 forbids “sending” obscene materials to minors. “Sending,” as does “furnishing,” signifies an act of distribution. We are not persuaded by the state’s argument. Those examples merely confirm the existence of the discrepancy identified in Frink and Woodcock; they neither harmonize nor erase it.

It may well be, as suggested by the dissent in Woodcock, that the legislature simply made one or more mistakes in drafting or compiling the relevant statutes in various stages of development. However, we do not examine legislative history under PGE unless we are unable to determine the meaning of the statutes through examination of their text and context. Fidanque v. Oregon Govt. Standards and Practices, 328 Or 1, 9, 969 P2d 376 (1998). Moreover, even assuming that the legislature made such a mistake, the courts are not free to expunge it in the guise of statutory interpretation. ORS 174.010.

Unlike Moyle, this case does not present an opportunity for the courts to imply a limitation that may not have occurred to the legislature but that is consistent with its expressed intent. Also, unlike Stoneman, this case does not turn on a choice between statutory meanings that may save a statute from overbreadth. Ultimately, the problem with ORS 167.065(l)(a) remains unchanged since Frink. In light of Stoneman, the statute forbids harmful effects by means of expression. Therefore, it is not facially invalid under Article I, section 8. However, the statute does prohibit expression that is protected, and it may not be narrowed through judicial interpretation to remedy that defect. Therefore, we hold that ORS 167.065(1) “impermissibly restricts the right to speak, write, or print freely on any subject whatever under Article I, section 8, of the Oregon Constitution. It is unconstitutional.” Fidanque, 328 Or at 9.16

We now turn to our disagreement with Judge Landau’s dissent. We have left our discussion of the dissent to the end because, as we will explain, the dissent’s analysis reaches an issue that, when properly viewed, has no place in the decision of this case.

After we concluded in our original opinion that ORS 167.065(l)(a) focused on the content of expression, we next considered whether the statute proscribed expression under a historical exception to the guarantee of Article I, section 8. Maynard, 138 Or App at 654. As did the court in Stoneman with respect to ORS 163.680, we rejected the state’s assertion that ORS 167.065(l)(a) represented a contemporary version of an exception established by Oregon territorial legislation. Id. Statutes of Oregon 1854, ch XI, section 10, pp 210-11, was the basis for the exception asserted by the state in Stoneman and is the primary source of the state’s reliance here as well.¹⁷

We concluded that, because the territorial statute did not define “obscene,” its terms were “too undefined to conclude that ORS 167.065(l)(a) falls within its scope.” Maynard, 138 Or App at 654. In Stoneman, the state likewise asserted that the territorial statute reflected a historical exception to Article I, section 8, within which ORS 163.680(1987) “wholly” fell. The Supreme Court disagreed and stated:

“That territorial [statute] was directed at persons who ‘import, print, publish, sell or distribute [matter] containing obscene language or obscene prints * * * manifestly tending to the corruption of the morals of youth.’ But, as this court noted in Henry, that territorial statute ‘contained no definition of “obscene” and * * * was directed primarily to the protection of youth.’ 302 Or at 522. Consequently, this court concluded in Henry that the territorial statute provided no support for any ‘well-established historical exception to freedom of expression.’ Id. We agree with the Court of Appeals[’] majority that, without more, that territorial statute did not sufficiently and clearly establish an historical exception within which the statute under review * * * could be said ‘wholly’ to fall.” Stoneman, 323 Or at 545 (emphasis added).

In our view, the court in Stoneman adhered to the conclusion that the territorial statute provided “no support for any ‘well-established historical exception,’ ” not merely an exception relating to the statute under review. Id. (emphasis added). The dissent, however, correctly observes that the court mentioned, in dictum contained in a footnote, the possibility that the protection of children, in general, may constitute a historical exception to the Article I, section 8, guarantee of free expression.¹⁸

Based on that dictum, the dissent conducts an exhaustive search of history and an elaborate analysis of the historical exception doctrine, ultimately concluding that the framers of the Oregon Constitution intended such an exception for regulation of the distribution of obscene materials to minors and that ORS 167.065(l)(a) wholly falls within that exception. Although we sympathize with the spirit of the dissent’s expedition, because it raises fair questions about how the historical exception doctrine works and proposes insightful answers to a number of those questions, we believe that the mission is fatally misguided in origin, procedure, and substance.

We begin with the roots of the dissent’s undertaking. This case was remanded to us “in light of’ Stoneman. By its single line mandate, we infer that the Supreme Court meant to direct us to the holding of Stoneman, which follows its analysis of the difference between laws that focus on the content, as opposed to those that focus on the effects, of obscenity involving children. The dissent disagrees, apparently assuming that we were directed, instead, to dictum, that, if the dissent has its way, bypasses the heart of Stoneman’s analysis altogether. Although we agree, in general, with the dissent’s implicit premise that the law should be correctly announced and applied on remand, we do not believe that the dissent has addressed the problem that we have been instructed to consider. Nonetheless, because of the importance of the issues the dissent raises, we are compelled to respond.

We take issue with the procedural order of inquiry followed by the dissent. The dissent’s historical exception analysis precedes and, given the conclusion it reaches, obviates any need for determining whether the statute focuses on the content of expression or on its effects. That methodology is erroneous and the error infects the outcome of the analysis.

The regulation of harmful effects achieved through expression does not require a historical exception under the Robertson methodology. In Plowman, the Supreme Court explained the tiers of that methodology:

“In [Robertson], 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 proscribing 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. * * * 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.” Plowman, 314 Or at 163-64.

It is clear from Plowman that the historical exception analysis applies only to statutes that focus on the content of expression rather than on its effects. The court adhered to that formulation in City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994) (Laws that focus on content of speech, substance of opinion, or subject of communication violate Article I, section 8, unless wholly contained within a historical exception. Laws that focus on forbidden effects but prohibit expression used to achieve those effects are analyzed for overbreadth.).

The dissent follows a different method of analysis, which causes it to detour into an unnecessary examination of the historical exception doctrine. The dissent mistakenly undertakes its analysis without first determining whether ORS 167.065(1) focuses on the content of expression or, instead, focuses on the forbidden effects of expression used to achieve those effects. It is likely that the dissent proceeds as it does because of portions of the Supreme Court’s analysis in Stoneman that, if considered in isolation, might appear to support a departure from the Robertson and Plowman methodology. In fact, the dissent alludes to that reliance by describing Stoneman’s analytical process as “slightly different from the one that we applied in our original opinion in this case.” 168 Or App at 166 (Landau, J., dissenting).

In Stoneman, the court began its analysis in the tradition of Robertson.

“We begin that exercise by deciding whether ORS 163.680 (1987) was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ Robertson, 293 Or at 412. A statute that is so written is invalid on its face, unless it fits ‘wholly’ within some ‘historical exception.’ Id.” Stoneman, 323 Or at 543 (emphasis added).

The foregoing statement is entirely consistent with the principle that the historical exception analysis is limited to content-focused laws. However, the immediately succeeding paragraph in Stoneman begins:

“If the enactment’s restraint on speech or communication lies outside an historical exception, then a further inquiry is made — whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself.” Id. at 543 (emphasis in original).

Later in its analysis, before concluding that ORS 163.680 (1987) did, in fact, permissibly focus on effects rather than on the content of expression, the court conducted a brief examination of the state’s historical exception argument and agreed with our decision in Stoneman that no such exception was shown to exist.

If the court had said nothing else about its application of the Robertson/Plowman methodology, we might agree with the dissent that an implicit shift in that methodology had occurred, requiring analysis of any claimed historical exception before we consider whether the challenged law focused on content, rather than on the effects of expression. However, the court did say more, and what it said leads to the conclusion that no change in methodology was intended.

The court also said in Stoneman-.

“It is true, as the Court of Appeals recognized, that the universe of statutes may be divided initially into two categories — those that focus on the content of speech and those that focus on the effect of speech. But, as the summary of our methodology’s four steps indicates, a reviewing court’s work is not over when a statute is placed into one or another of those general classifications. Because the statute in question described and prohibited commerce in certain forms of communication, it must be examined under one or the other of the first two categories identified in Robertson and reiterated in Plowman.

“Under the first category, the statute could pass constitutional muster only if the restraint that it imposed falls ‘wholly’ within some historical exception.” Id. at 544-45 (emphasis added).

The court then proceeded to discuss the historical exception arguments made by the parties along with our analysis of the issue.¹⁹ The court turned next, as we have already said, to the “content vs. effects” portion of its analysis. Significantly, however, the court prefaced that discussion with “[w]ith respect to this second category, we think it is clear that ORS 163.680 (1987) was concerned with harm to children.” Id. at 545 (emphasis added).

Thus, it is evident that the court believed, first, that its methodology remained the same as that followed in Robertson and Plowman; second, that laws challenged under Article I, section 8, must be examined under one or the other of the first two categories described in those cases and, third, that the first category of laws identified in those cases — laws that focus on the content of speech — is the category that is subject to the possibility of a historical exception. Any other conclusion assumes that the court meant to modify a key element of the Robertson/Plowman test without openly acknowledging such an intention. For at least two additional reasons, that assumption is untenable.

First, such an assumption would impair the logical consistency of the court’s decision. As we have observed, the court began its analysis with the well-understood proposition that content-focused laws are facially invalid unless authorized by a historical exception. The court next posited that, if such an exception is not found, we ask whether the focus of the law is on the effects of communication. There is, at the least, a semantic tension between those propositions because the second, depending on how it is understood, seems to reverse the order of inquiry established by the first.

The Supreme Court has identified only two categories of laws involving speech within the meaning of Article I, second 8 — those that focus on content and those that focus on effects. If, as the first proposition holds, it is content-focused laws that may be salvaged by historical exceptions, that focus must be ascertained before the search for an exception is necessary or even meaningful. If the law focuses on effects, that focus will, thus, likewise be ascertained before a historical exception inquiry is implicated. Therefore, the court’s second proposition is difficult to square with the first, unless the second is understood not to address the order of inquiry but, rather, merely to say that laws focusing on the effects of speech are valid even though no historical exception authorizes them. So understood, the court’s later discussion of our historical exception analysis in Stoneman is dictum, and any logical tension within the opinion is resolved.

A different reading of the opinion would violate a principle we have previously followed in order to avoid the illogical application of analytical methodology. In Union Oil Co. v. Board of Co. Comm. of Clack. Co., 81 Or App 1, 724 P2d 341 (1986), we said:

“The problem with petitioner’s argument is that it takes each of the tests or factors enumerated in [Clackamas Co. v. Holmes, 265 Or 193, 508 P2d 190 (1973)], as being wholly independent of the others. Although Holmes contains some isolated language which can be read as supporting that view, the opinion (like all other judicial opinions) must be read as a whole and must be read with the understanding that the court intended it to make sense.” Id. at 6.

Stoneman remains faithful to the Robertson/Plowman methodology and is also internally consistent if understood as we have urged. If read as the dissent understands it, neither of the foregoing statements is true.

Second, the dissent’s reading of Stoneman’s framework is contradicted by later Supreme Court decisions that address the structure of analysis under Article I, section 8. In Fidanque, the court confirmed its adherence to the Robertson/Plowman methodology, reaffirming that content-focused laws are subject to historical exception analysis, whereas effects-focused laws are analyzed for overbreadth. 328 Or at 5-6. Likewise, in State v. Rangel, 328 Or 294, 977 P2d 379 (1999), the court said:

“Article I, section 8, forbids the enactment of any statute that is written in terms directed to the restraint of ‘free expression of opinion’ or the restriction of ‘the right to speak, write, or print freely on any subject’ of communication, unless the restraint is wholly confined within some historical exception to the free speech guarantees. [Citing Robertson.] Article I, section 8, does not prohibit the enactment of statutes which focus on forbidden effects of expression, if they are not directed at the substance of expression.”

Id. at 298-99 (emphasis in original).

Fidanque and Rangel, make clear, as do the cases preceding Stoneman, that Article I, section 8, does not subject effects-focused statutes to a historical exception rationale in order to explain and justify their validity. To the contrary, laws focusing on the effects of expression are not prohibited by Article I, section 8. Accordingly, the dissent’s excursion into the depths of history is premature if it is conducted before answering the threshold question: Does ORS 167.105 focus on the content of expression, or does it address the forbidden effects of that expression?

Assuming for the sake of argument that the dissent has followed the correct order of inquiry or, alternatively, that ORS 167.065(l)(a) focuses on content instead of the effects of expression, we nonetheless disagree with critical portions of the substance of the dissent’s historical exception analysis.

Our first substantive disagreement is with the dissent’s conclusion that restraints such as that imposed by ORS 167.065(l)(a) were well established at the time Oregon’s Constitution was adopted. The fulcrum of our disagreement is found in the dissent’s understanding of the Supreme Court’s holding in Henry. The dissent argues that Henry stands only for the proposition that the 1854 territorial statute did not furnish a historical exception for the statute under review in that case. We disagree and believe that Henry governs much of the historical exception analysis in this case. In Henry, the Supreme Court, as does the dissent, conducted a historical search for the meaning of the term “obscene.” In fact, the court unearthed and discounted many of the historical sources relied on by the dissent, including the colorful anecdote about Sir Charles Sedley’s case. 302 Or at 516; 168 Or App at 178.

Although, as the dissent acknowledges, the Supreme Court ultimately rejected the territorial statute as the source of a historical exception for obscenity it did not restrict its review to Oregon antecedents. Before discussing the territorial statute, the court concluded that there was no well-established historical exception for obscenity outside of Oregon either.

“From our review of the English and American cases and statutes, we conclude that restrictions on sexually explicit or obscene expressions were not well established at the time the early freedoms of expression were adopted. * * * The point of our historical review * * * is that while there may long have been a view that ‘obscene’ materials were improper and not privileged, the pejorative label has not described any single type of impropriety. The term ‘obscene’ simply functioned as a condemnatory term declaring words, pictures, ideas or conduct as improper by definition, whatever may, from time to time, be placed within the definition, e.g., ‘blasphemous,’ ‘profane,’ ‘immoral,’ ‘depraved,’ ‘corrupt,’ ‘lewd,’ ‘lascivious,’ ‘impure’ and ‘hardcore pornography.’ ’’Henry, 302 Or at 520.

The court’s conclusion, contrary to the dissent’s suggestion, is a direct holding of the case, because Robertson required the court to make precisely the sweeping examination it did in order to complete the historical exception analysis.

The dissent makes a similar foray into the depths of legal history but comes to a very different conclusion. In doing so, the dissent focuses on historical examples of laws predating the adoption of the Oregon Constitution that specifically restricted the distribution of obscene materials to minors. The dissent mentions a couple of illustrations from ancient Greek history, a few early to mid-nineteenth century cases, an English law enacted in 1857, and ten state enactments predating 1859 that prohibited the distribution of obscene materials tending to corrupt the morals of youth. However, the dissent relegates to a footnote its discussion of the Supreme Court’s warning in Henry that statutes enacted at or near the time Oregon’s Constitution was adopted are not necessarily to be given much weight because the drafters were “concerned with broad principles of long-range significance.” Id. at 521-22. Unlike the dissent, we do not view that statement as cryptic at all. Rather, it is a strong admonition against the statute-counting exercise that is, at least, one cornerstone of the dissent’s analysis.

Perhaps recognizing that the evidence it cites is not exactly an overwhelming body of law, the dissent primarily focuses, as did the Supreme Court in Henry, on the state of obscenity law as it generally existed in the eighteenth and nineteenth centuries, without regard to restrictions peculiar to minors. The dissent’s disagreement with Henry’s view of that history highlights the perils of its quest, especially in light of the uncertainties in the application of the Robertson template that the dissent identifies. Each opinion arrives at its own assessment of the weight and direction of the historical record of that era in an exercise that is uniquely susceptible to differences in judgment. Although the dissent’s examination of the record is more thorough than was the Supreme Court’s published discussion in Henry, the conclusion it reaches is not necessarily more compelling. More importantly, because the main emphasis of the dissent’s historical review is, like the Supreme Court’s in Henry, on the general state of restraint on obscenity, it is the Supreme Court’s view of that evidence, and not the dissent’s, that binds us.

After reviewing the historical evidence, the court in Henry concluded that the term “obscene” did not describe “any single type of impropriety”; its meaning evolved over time as dictated by the then-existing morals and values of society. Id. at 520. In other words, the court concluded that laws restraining the dissemination of obscene materials were in fact restraining the freedom of public disclosure and debate over expression society deemed improper at that time. Id. The court’s point was that “obscenity” does not have any immutable or transcendent legal meaning. Unlike the population of conventional wrongs identified as historical exceptions in Robertson, including, for example, perjury, fraud and theft, whose elements are both constant and widely understood, obscenity-based crimes largely follow the mores of an era.²⁰

The dissent advances a novel method in order to bypass the dilemma posed by Henry. The dissent suggests that, whatever the difficulties inherent in defining obscenity may be, restraint of the specific conduct proscribed by ORS 167.065(l)(a) is indisputably a well-established exception to the guarantee of Article I, section 8. After all, the dissent reasons, before 1859, nobody ever thought that government lacked the authority to protect children from such material.

The problem with that argument is that it takes the historical exception analysis beyond its rational limits. The dissent points to few specific prohibitions constituting precise historical antecedents to any of the three remaining proscriptions contained in ORS 167.065(l)(a). The truth is, we cannot say whether the paucity of evidence on the subject is owing to the sensibilities of another era, to the possibility that sadomasochistic abuse, for example, may have been largely unknown to the framers of the Oregon Constitution, or because of some other cause about which we are not free to speculate.

Even more fundamentally, however, the dissent’s shift in focus from the ill-defined term “obscene” to a narrower band of specific conduct reflects a blurring of the methodology of Article I, section 8, analysis. We agree, as we have explained, that the state has the authority to restrain the distribution to minors of the materials proscribed by ORS 167.065(l)(a). However, as the Supreme Court made clear in Stoneman, that authority derives from the power of government to regulate conduct that has identifiable harmful effects on children, even though freedom of expression may be burdened in the bargain. 323 Or at 549. That authority does not derive from a historical search for nineteenth-century (or earlier) values and beliefs about the meaning of obscenity.

Robertson identified a small handful of possible historical exceptions that were specific, well-defined, and undisputably entrenched in common law. Whether or not the Robertson compendium is open ended, it is likely a very short list, as well it should be. At best, history is hard to establish convincingly. The limitation of Robertson’s unique historical exception analysis to a narrow band of wrongs, with clearly established elements that describe specific prohibitions, avoids the even more artificial process of distillation and revision proposed by the dissent. Because the dissent sets the bar too low, it would emblazon nineteenth-century thinking on twentieth-century challenges in the law of obscenity, without the screening value of overbreadth review.

The dissenting judges believe that it is necessary first to consider whether the statute reflects a historical exception; in concluding that it does, they overlook its over-breadth. However, that problem should not be so lightly dismissed. The pioneers would likely be bewildered, if not speechless, at much of what is today regarded as acceptable expression relating to what the statute defines as “sexual excitement” and “sexual conduct.” In the intervening period, society, in general, has become more tolerant of stark and explicit expression that is imbued with sexual themes and undertones — even when it reaches older minors. An evening of channel surfing on commercial television takes that proposition beyond dispute. If the dissenting judges were right, however, people who have no intention of corrupting the morals of minors by exposing them to materials that include, incidentally, depictions of sexual conduct or excitement, are nonetheless criminals. How can a statute capable of producing results so obviously out-of-step with the modern limits of tolerance nonetheless be sanctioned by a historical exception? In the answer to that question lie puzzles that are presented, but not solved, by Robertson and its progeny.

The dissents focus, for example, on the requirement that a historical exception must be well established but they do not consider how an exception can be well established in the age of the framers without also reflecting values that will endure for centuries more. And what of the requirement that the statute be “wholly contained” within a historical exception? By defining it in sweeping terms as the protection of children from obscenity, the dissents craft an exception that may “wholly contain” the statutory offense when we consider, in isolation, the statute’s focus on the corrupting effect of obscenity on minors. However, they fail to appreciate that the critical gap between the reach of the offense and the scope of the exemptions created by ORS 167.085(3) — the problem that makes it overbroad — also keeps the offense from being wholly contained within the scope of any reasonably framed exception. How can the proposed exception be so broad that it does not matter whether or not the statute only reaches those persons who actually attempt to titillate minors? Such a result makes no sense and its possibility serves to illustrate why our disagreement about the sequence of analysis has taken on more significance than it should have.

If a statute is effects-based, there is no reason to consider whether it is enshrined by history; it is, however, necessary to separately consider whether it is overbroad. If it is content-based, it may nonetheless reflect a narrowly articulated exception that should not, perforce, produce unreasonable results. ORS 167.065(1) is overbroad for the same reason that it should not be considered a well-established and durable historical exception. It reaches persons whose communication is not intended to harm minors. When so understood, its overbreadth is both readily apparent and remediable by the legislature. We would be wrong to entomb and preserve its infirmities within the historical vault constructed by the dissent.

Our next disagreement with the dissent lies with the portion of its historical exception analysis addressing whether Article I, section 8, “demonstrably [was] not intended to reach” the regulation of the distribution of obscene materials to children. Robertson, 293 Or at 412. We differ with the dissent at two levels. First, the dissent has restated the Robertson test in a way that mischaracterizes the relevant question. The dissent asks whether Article I, section 8, “was intended to abrogate the established authority of the state to regulate the distribution of obscene materials to children?” Robertson, on the other hand, phrased the question as we have done; namely, whether Article I, section 8, demonstrably was not intended to reach such regulation. The correct phrasing of the test makes clear that the burden is on the proponent of an exception to establish that the exception was intended to survive the adoption of the constitutional guarantee. See Henry, 302 Or at 521. Therefore, when the dissent later asserts that it can find no “evidence that the framers of the Oregon Constitution intended to constrain the authority of the state” to engage in such regulation, it mistakenly implies that it must so find in order to disprove the existence of an exception. In fact, the reverse is true.

Regardless, however, of the proper phrasing of the test, the evidence on which the dissent relies in concluding that the alleged exception survived the adoption of Article I, section 8, does not prove the point the dissent wants to make. The dissent asserts that the re-enactment of the 1854 territorial statute as part of the state’s first criminal code, and the enactment of similar legislation by Congress and by other states following the Civil War, show that regulation of the distribution of obscenity to minors was both well established and also was intended by the framers to survive the adoption of the constitution.

With respect, all that the cited evidence shows is that legislatures have long recognized that government has the authority to regulate expression when it properly focuses on the forbidden effects of that expression, rather than on its substance. The territorial statute, as later re-enacted, defined its proscription in terms of materials “tending to the corruption of the morals of youth.” Virtually without exception, the identical focus on the effects of expression also appeared in the statutes that the dissent cites as examples of the existence of an exception, specifically relating to youth, dating back to the early to mid-nineteenth century. 168 Or App at 182 (Landau, J., dissenting). Those statutes do not reflect a historical exception to freedom of expression in the sense contemplated by Robertson. Instead, they constitute durable evidence that the guarantees of free expression simply do not prohibit legislative regulation of harmful effects that arise from that expression.

Convictions on counts 2,3, and 4 reversed; otherwise affirmed.

1 ORS 167.065 provides, in part:

“(1) A person commits the crime of furnishing obscene materials to minors if, knowing or having good reason to know the character of the material furnished, the person furnishes to a minor:

“(a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sadomachistic abuse, sexual conduct or sexual excitementM”

2 Article I, section 8, provides, in part:

“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 abuse of this right.”

3 State v. Maynard, 327 Or 582, 964 P2d 264 (1998).

4 In addition to his conviction on three counts of furnishing obscene materials to minors, defendant also was convicted on three counts of endangering the welfare of minors. ORS 163.575( 1 )(a). On appeal, defendant has not challenged the “endangering” convictions. Maynard, 138 Or App at 649.

5 ORS 163.680 (1987) provided:

“(1) It is unlawful for any person to pay or give anything of value to observe sexually explicit conduct by a child known by the person to be under 18 years of age, or to pay or give anything of value to obtain or view a photograph, motion picture, video tape or other visual reproduction of sexually explicit conduct by a child under 18 years of age.

“(2) Violation of subsection (1) of this section is a Class C felony.”

6 State v. Stoneman, 132 Or App 137, 888 P2d 39 (1994).

7 For reasons explained hereafter in our response to the dissent, we defer for the time being our discussion of the historical exception doctrine.

8 ORS 167.060(10) contains the definition of “sexual conduct”:

“ ‘Sexual conduct’ means human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”

We considered only the “human masturbation” and “sexual intercourse” portions of the definition of “sexual conduct” because we had previously held the rest of that definition unconstitutionally overbroad. Maynard, 138 Or App at 652 (citing State v. House, 66 Or App 953, 676 P2d 892, mod 68 Or App 360, 681 P2d 173 (1984), affdon other grounds 299 Or 78, 698 P2d 951 (1985)).

9 ORS 167.060(11) contains the definition of “sexual excitement”:

“ ‘Sexual excitement’ means the condition of human male or female genitals or the breasts of the female when in a state of sexual stimulation, or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity.”

10 We severed the proscription against depictions of “nudity” because it had previously been held to be unconstitutionally overbroad. Id. at 652. We did not decide whether the prohibition of ORS 167.065(l)(a) against furnishing materials to minors that depict sadomachistic abuse violates Article I, section 8.

11 ORS 167.070 prohibits sending obscene materials to minors; ORS 167.075 proscribes exhibiting an obscene performance to a minor; and ORS 167.080 criminalizes displaying obscene materials to minors.

12 See, e.g., Robertson, 293 Or at 416-17 (coercion statute focused on a forbidden effect — the effect of frightening another person into a nonobligatory and undesired course of conduct).

13 We ultimately agree with the concurrence that the statute is constitutionally flawed but only because, as explained below, the defense provided by ORS 167.085(3) does not adequately exempt from criminal responsibility those persons whose intent is not to titillate minors.

14 Despite Robertson’s admonition against judicial rewriting of penal legislation to broaden exclusions through the process of construction, the courts have sometimes narrowed a statute’s scope through implied limitations. For example, in Moyle, the court upheld the harassment statute, ORS 166.065Í 1 Xd), because it was able to imply that the threat of harm required for conviction must be “genuine.” The court thereby excluded pranks and angry but empty threats from its reach. For reasons explained below, the approach taken in Moyle is not applicable in this case.

15 Judge Van Hoomissen’s dissent in Woodcock criticized Frink for ignoring a legislative oversight in drafting that caused the defense in ORS 167.085(3) to apply to a narrower band of communication than does the offense itself. Id. at 663-64. Despite the holdings in Frink and Woodcock, neither ORS 167.065(1) nor ORS 167.085(3) has since been amended by the legislature to unify the scope of proscription and defense. Hence, we return to plowed ground.

16 In his brief on the merits on review in the Supreme Court, defendant contends that ORS 167.065(l)(a) is unconstitutionally vague. That argument was not raised in this court or in the trial court. Because we decide this case on overbreadth grounds, it is not necessary for us to reach the issue of vagueness. However, it appears likely that the claim is unpreserved. State v. Castrejon, 317 Or 202, 856 P2d 616 (1993). Finally, because this case is resolved under the Oregon Constitution, it is not necessary to consider defendant’s First Amendment challenge.

17 The territorial statute provided:

“If any person shall import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of loan, sale, exhibition or circulation, or with intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six, nor less than three months, or by a fine not more than three hundred, nor less than fifty dollars.”

18 In that footnote, the Supreme Court stated that ‘Tnlothing in this opinion * * * should be construed to reflect on the continuing vitality of the implication in Henry * * * that the protection of children may constitute an historical exception * * * ” 323 Or at 543 n 7.

19 We analyzed the historical exception issue because we concluded that the statute focused on the content of expression, rather than on its effects. Stoneman, 132 Or App at 144.

20 For example, nineteenth-century prosecutions were not uncommon in the United States for the “obscene” distribution of birth control information. See Commonwealth v. Tarbox, 55 Mass (1 Cush) 66, 67 (1848); Frederick F. Schauer, The Law of Obscenity, 13 (1976).