State v. Henry

302 Or. 510, 732 P.2d 9 (1987)



The Oregon Supreme Court holds that characterizing expression as "obscenity" under any definition, be it Roth, Miller or otherwise, does not deprive it of protection under the Oregon Constitution. Obscene speech, writing or equivalent forms of communication are "speech" nonetheless. The prime reason that "obscene" expression cannot be restricted is that it is speech that does not fall within any historical exception to the plain wording of the Oregon Constitution that no law shall be passed restraining the expression of speech freely on any subject whatsoever.



A jury found defendant guilty of dissemination of obscene material and possession of obscene material with the intent to disseminate in violation of Or. Rev. Stat. § 167.087. The appellate court reversed the convictions, holding that the statute was unconstitutionally vague, and the State of Oregon sought review. The state supreme court affirmed the appellate court’s judgment, holding that the statute under which defendant was convicted was unconstitutional, but for different reasons.



Did Or. Rev. Stat. § 167.087, which prohibited the dissemination and possession of obscene material, contravene Article I, section 8, of the Oregon Constitution?




Oregon's free speech protection, covering "any subject whatever," was broader than that of the U.S. Constitution as interpreted by the U.S. Supreme Court. Restrictions on sexually explicit or obscene expressions were not well established at the time of the adoption of Article I, section 8, of the Oregon Constitution. Accordingly, Or. Rev. Stat. § 167.087 contravened Article I, section 8, of the Oregon Constitution.

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