| To some angry Portlanders, Southwest Barbur
Boulevard is starting to look like Smut Street.
In December, remodeling work began to transform the former home of
Bernie's Bagels and Boston Market into what is being billed as "Earth's
Largest Adult Superstore." Soon, seeded bagels will be replaced by seedy
characters, cream cheese by cheesecake.
When the construction started, there were already five other sex shops
and strip bars operating along Barbur. Considering the street abuts
residential neighborhoods and is home to three schools, the whole thing
just didn't seem right.
Residents and business owners formed an organization called SIEGE to
stop the sullying of their neighborhood. They want a zoning ordinance
that would do two things: prohibit strip bars and sex shops from locating
near schools and houses, and prevent such businesses from clumping together
into de facto red-light districts. "Forty-eight other states have decided
there is a problem when you have one or more of these businesses in
an area," says Kathy Dienhart, a SIEGE spokeswoman. "It's a common-sense
zoning issue. That's the bottom line."
Heck, even Manhattan has managed to crack down on adult businesses.
With the wave of Mayor Rudolph Guiliani's wand of morality, 44 of New
York's 144 adult businesses have closed their doors since July of last
year.
But as Portland residents have found out, those kinds of changes aren't
so easy to make here.
In case after case, the Oregon Supreme Court has ruled that the state
constitution prohibits government from regulating speech based solely
on its content. There is one practical exception: Government may outlaw
speech that causes actual harm, like extortion or defamation.
These rulings don't protect just smut. They apply equally to all
speech, be it artistic, political, commercial or even obscene. They're
the reason Oregon has no state-campaign finance limits--and why you
see so many giant advertisements painted on buildings.
"I think our constitution protects speech more than any other in the
nation," says lawyer and lobbyist John DiLorenzo, who used the free-speech
protections to argue successfully that campaign contributions are a
form of speech and therefore exempt from limits in Oregon.
In the sex debate, it boils down to this: Cities can't zone adult businesses
just because neighbors don't like them.
"It really sounds good in theory, like many ideas," says Susan Marshall,
a lawyer who led an unsuccessful 1996 campaign to outlaw obscenity.
"But can you put legs on it? And what happens when you do? We have adult
businesses next to schools, parks, day-care centers and right in neighborhoods."
Even die-hard liberals like Mayor Vera Katz are thinking about cracking
down on porn. Two weeks ago, in her State of the City address, she said
that she and the Portland City Council would push for a constitutional
amendment to allow some zoning regulation of adult businesses. Last
Thursday, The Oregonian's editorial called such constitutional
tinkering "a necessity."
Slam dunk? Hardly. Standing in their way will be the ACLU, bookstore
owners and other free-speech advocates. Most daunting, however, is the
legacy of a 74-year-old named Hans Linde, the state's most formidable
jurist and the man whose precedent-smashing insight led Oregon down
this controversial path.
Ask most any Oregon lawyer to describe Hans Linde and it isn't long
before you'll hear about the retired justice's brain.
Former Oregon Attorney General Dave Frohnmayer calls Linde a "brilliantly
original thinker." University of Oregon law professor Dominick Vetri
describes him as one of the top-10 state court judges of the past 20
years--not only in Oregon but nationwide. Noted Harvard legal scholar
Laurence Tribe called him "one of the nation's legal treasures," and
late U.S. Supreme Court Justice William Brennan praised Linde's work.
"He's sort of like Mark McGwire or Babe Ruth," says Jim Westwood, a
local lawyer who ran for the state Supreme Court last year. "He's in
a different league."
As a state Supreme Court justice from 1976, when he was appointed by
Gov. Robert Straub, until his retirement in 1990, Linde put Oregon's
top tribunal on the map. "I think during the time he was on the Court,
it gained a good deal of national respect for a variety of reasons,"
said Stephen Kanter, a former dean at Lewis & Clark College's Northwestern
School of Law. "The court, in my opinion, would have been different
without him and lesser without him."
Unlike most other judges, Linde had little courtroom experience before
he served on the bench. Instead, he spent most of his life with his
nose buried in books.
He was born in Germany in 1924 but moved with his family to Copenhagen,
Denmark, a short time later. Six months before the German occupation
of the city, in 1939, the family left for America. At the time Linde
was a teen, but he still carries the accent of his homeland.
Academics--at Lincoln High School, Reed College and UC-Berkeley law
school--were his lifeblood, a passion that has never left him. In 1959
he began teaching constitutional law at the University of Oregon, a
position he held for almost two decades before being appointed to the
state Supreme Court. Since his retirement, he has taught at Willamette
University.
Maybe it's because he was an outsider. Or maybe it's because he was
an intellectual who didn't give a damn about public reaction or convention
or anybody else's sense of right and wrong. Whatever the reason, Linde
made his mark--catapulted himself into the national spotlight, in fact--with
a single idea. You might say he was an Isaac Newton of jurisprudence,
a man whose flash of insight led to a radical way of looking at the
world.
"He does happen to look at things in ways that are different," says
appellate Judge Rex Armstrong, a former clerk of Linde's. "But when
you realize the result and what he's thinking about, it really appears
quite simple. It's the ability to have looked at something in a different
way that led to the insight that he had."
A falling apple helped Newton expound the theory of gravity.
You could say that Dwight Robertson was Linde's falling apple.
Robertson was a University of Oregon football player, a big man on
campus who, in 1978, along with a few friends, allegedly gave a co-ed
this ultimatum: If she didn't perform oral sex on them, they would post
a photograph they had of her performing oral sex on someone else. For
that, Robertson was charged with coercion.
There's no question that what Robertson allegedly did was morally wrong,
but that was irrelevant to his legal argument. Robertson challenged
the charge on technical grounds, claiming that the law against coercion
was invalid because it denied him his right to free speech. His claim
eventually made its way up to the state Supreme Court. It was up to
the justices to decide whether Robertson was right about the law--not
whether his behavior was acceptable. The answer depended on which lens
they would look through.
Under the U.S. Constitution's First Amendment--the document most lawyers
and judges would routinely turn to under the circumstances--Robertson
may not have had much of a case. But Linde looked somewhere else.
Years earlier, he realized one didn't necessarily need the federal
government to protect citizens' rights. The U.S. Constitution acts as
a sort of "floor" that sets the rights of all citizens. Each state,
however, is allowed to provide more rights to citizens than federal
laws require. Until Linde outlined the idea of state constitutional
interpretation, modern judges mostly ignored that extra breathing room
for citizens.
"That was an astounding, significant breakthrough," says Vetri.
To a non-lawyer, this probably sounds like a no-brainer. After all,
we're in Oregon, so why not use our own constitution? The answer
has to do with a unique and volatile period in history.
During the Civil Rights movement, it became clear that states couldn't
be trusted with the responsibility of protecting their own citizens.
African Americans were being denied the right to vote, schools were
segregated and police were abusing their authority. Armed with the U.S.
Constitution, the federal government stepped in. With Chief Justice
Earl Warren leading the charge, the U.S. Supreme Court began giving
citizens back their constitutional rights.
Then came the backlash. Under Chief Justice Warren Burger, who was
more conservative than Warren and who served at the same time Linde
was on the state court, those rights were either scaled back or left
to wither. Until Linde popularized state constitutional interpretation,
citizens had no other recourse.
His insight, which led other state courts to adopt a similar methodology,
has since been championed by the political left. It has been used to
secure Oregonians more protection from police searches and to force
businesses to provide the same benefits to gay couples as they do to
married ones. But because of Linde's work Oregon's political right has
also won a battle or two, most notably in winning gun owners more freedom
from government regulation.
First, however, the state constitution helped Robertson. In order to
weigh his free-speech claims, Linde looked to Article 1 Section 8 of
the Oregon Constitution, which came into effect in 1859. It reads, "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."
The language of the U.S. Constitution's First Amendment, enacted 68
years earlier, is less specific and has been interpreted less broadly
(see "On Speaking Terms" above).
To Linde and his colleagues, the answer in the Robertson case was clear.
The coercion statute clearly was aimed at speech--that is, it prohibited
threatening people in certain ways. That meant it was vulnerable to
being found unconstitutional. The statute could pass muster only if
it met one of two tests: If coercion was one of the exceptions to free-speech
protections recognized at the time of the Oregon Constitution or if
the statute was written in terms solely addressing the ill effects of
coercion. Neither was the case. Thus, Linde reasoned in his unanimous
opinion, the statute amounted to government censorship and was unconstitutional.
Among lawyers Robertson became a fountainhead case because it
laid out a new, real-world framework for deciding free-speech cases,
according to Deputy Attorney General David Schuman.
Outside legal circles no one paid much attention to the ruling. Down
the road, though, it would have tremendous impact. "These aren't things
that stir up a lot of attention until their implications are confronted,"
says Portland City Attorney Jeff Rogers.
That would come later, as the free-speech argument was pushed like
an expanding ladder--from protection for door-to-door soliciting to
protection for obscenity to protection for commercial advertising--to
the point at which even free-speech purists have begun to take pause.
Until the late '80s, Oregon was like most other states when it came
to selling dirty books and magazines: Obscenity was outlawed. In some
places, those who broke the law were treated with a wink and a nod.
Elsewhere, things weren't so simple.
"Any adult business that opened up was liable to get busted at any
time," explains Dave Fidanque, director of ACLU Oregon.
Earl Henry operated one of those businesses, a small adult bookstore.
Unfortunately for him, it was located in Redmond, where tolerance wasn't
exactly high. In the early '80s, undercover officers went into Henry's
shop to buy some of his magazines. Then they got a search warrant to
seize anything in the store that was deemed "obscene."
"The police seized everything," says Fidanque. "They cleaned him out."
Henry was charged in Deschutes County Circuit Court with dissemination
of obscene material.
By today's standards, Henry's shop would be considered tame. "Compared
to all the adult businesses that operate in Portland today, it's almost
like a night-and-day kind of thing," recalls lawyer Tim Sercombe, who
helped defend Henry for the ACLU. "The evidence in trial was basically
pictures of heterosexual sex, foreplay and intercourse. No animals or
children or anything like that."
The jury convicted Henry nonetheless, and he was sentenced to 60 days
in jail.
In 1987, the state Supreme Court considered Henry's appeal. Like Robertson,
Henry claimed that his right to free speech had been violated. He asked
that the statute be declared unconstitutional.
This time, Justice Robert E. Jones penned the opinion, which bore strong
signs of Linde's thinking on state constitutional analysis of free speech.
"There wasn't a great deal of debate about it," Jones now says. "We
followed the Linde procedure, which he pioneered, analyzing our constitution
first before we did the federal constitution. ... We unanimously agreed
it was not in the thinking of the [framers of the Oregon Constitution]
to censor adult readership. It was as simple as that."
But Henry took a surprising step, one that makes Oregon law
vastly different from federal law. In his ruling, Jones wrote, "In this
state, any person can write, print, read, say, show or sell anything
to a consenting adult, even though that expression may be generally
or universally considered obscene."
Jones, now a U.S. District Court judge, is viewed as somewhat conservative,
making it all the more surprising that he and his colleagues still saw
fit to find that obscenity is protected speech.
"There had to be a hell of a lot of logic to Linde's suggestions for
those things to get adopted because those judges would probably be predisposed
to say, 'We don't want to expand our free-speech clauses,'" Vetri explained.
Henry's conviction was overturned by a unanimous vote. Would he have
gotten off the hook under the federal Constitution? "Absolutely not,"
Jones says. The First Amendment just doesn't offer as much protection.
A year after Henry's case was overturned, another adult bookstore owner
scored the biggest victory of them all, the one that is tormenting Vera
Katz today.
In the early '80s the City of Portland did exactly what Katz wants
to do now: It enacted zoning ordinances aimed specifically at adult
bookstores. The stores were required to be at least 500 feet from residences
and schools, and in some zones they had to be at least 1,000 feet away
from each other.
Several adult bookstores ignored the ordinance and continued operating.
In May 1983, the City had had enough. It filed suit against the bookstore
owners in a case that has come to be known as Tidyman, the name
of one of the business owners.
John Ray Tidyman's attorneys sung a familiar theme--their client's
rights to free speech were being violated. The trial-court judge agreed.
The city appealed the case to the state Supreme Court.
Harking back to his Robertson analysis, Linde wrote that although the
City may have tried to describe the "harmful effects" of adult bookstores
in general terms, it didn't base its reasoning on any real facts. Without
that proof, the zoning ordinance was obviously directed at speech alone.
Therefore, it was unconstitutional.
Sex-shop owners, like those who have overtaken part of Southwest Barbur
Boulevard, were free from government interference. They could operate
with no more oversight than any Powell's, McMenamin's or Nature's.
Oregon had become the Free Speech State.
A decade later, Oregon is about to have this argument all over again.
Last week, SIEGE held a protest, one of many planned in an attempt to
drive the new sex shop out of business. Marge Kafoury, a Portland lobbyist,
is busy working the Legislature to approve a constitutional amendment
limiting strip bars and adult bookstores. Other local governments, like
Medford's, are doing the same.
Some legal scholars say we're heading down a dangerous path. Furthermore,
they say, these constitution-changers are ignoring an important part
of the Tidyman ruling. According to Schuman, "Cities are perfectly
capable of passing laws that prevent all the deleterious effects of
nude dancing." But, he says, they must show that the business causes
actual harm. "If someone complains because someone else is getting to
see naked ladies, that's not good enough."
For example, a city could collect evidence showing a certain business
attracts prostitutes, litter or vandalism. Portland, however, hasn't
made any significant efforts to do so despite the deluge of citizen
complaints every time a new adult business opens.
So why hasn't the City of Portland studied the alleged harm caused
by adult businesses? Rogers, the city attorney, says that while legal
rulings may theoretically allow cities to zone adult businesses, it's
difficult to document the actual harm they cause.
Or maybe there's just no harm done. Police spokesman Derek Anderson
doesn't think adult bookstores have caused any particular law enforcement
problems in Portland. "It probably wouldn't go in the plus column as
far as a neighborhood is concerned," he says, "but it's not as big a
negative as people might suspect."
Mayoral spokeswoman Elisa Dozono agrees--to a point. "Is there a criminal
problem? No. Is there a neighborhood problem? Yes."
That's why, for the City, it may be simpler to change the state constitution
than to meet the test laid down by Linde.
How do we measure the consequences--both good and bad--of Oregon's
broad protection of speech?
"Putting all speech in the same category is more pure," explains Jim
Huffman, dean of Lewis & Clark's law school. "But from the point
of view of anybody who's worried about what's going on their back yard,
it has its downsides."
Just ask Jim Francesconi. As a city commissioner and a lawyer, he's
sympathetic both to the residents' complaints and to the constitutional
arguments. But Francesconi, who was a student of Linde's at the University
of Oregon, sees the issue as a balancing test. When weighed against
residents' concerns over their children, he says, the constitutional
protections Justice Linde espoused seem awfully esoteric--particularly
since adult businesses tend to locate in poorer neighborhoods, where
residents already have enough to deal with.
But how bad is the problem? Portland City Council members--all progressive
liberals--say they can see the harm done to neighborhoods on the anguished
faces of residents. "Four hundred school children pass by this location
every day on school buses, and hundreds of other children walk or are
driven by daily," a SIEGE press release states, noting that marketing
data shows 3,143 children live within 1 mile of the site. But is what
these children see--a sign that says "adult books" or "Girls, Girls,
Girls"--any worse than what they see in a Calvin Klein ad or on MTV?
Even if it is, is it worth changing the constitution over?
Legal scholars, most of whom find no fault with the logic behind Linde's
free-speech analysis, say there's got to be a better way. "Even if you
think the court has failed, changing the constitution is not the way
to go," says Kanter, the former Lewis & Clark law school dean.
In the past 10 years, Oregonians have rolled back constitutional protections
three times: first to institute the death penalty in 1984, then to remove
the provision barring "vindictive justice" from the constitution and
finally to change the protections against search and seizure in 1996.
(The last initiative was later overturned by the Supreme Court.)
Linde, who is no fan of nude dancing, was reluctant to talk about how
his legal analysis has been used to defend sex shops. But on the issue
of changing the state constitution, he stands firm. "What offends me
as a constitutional professional is treating a constitution as no different
from a city charter," says Linde. "It gets no respect. To change the
140-year-old constitution over one essentially trivial issue doesn't
bother people. If people start saying we can make ad hoc changes, then
it's lost its efficacy."
The ACLU's Fidanque agrees. "Nothing in the Oregon Constitution today
prevents local government from regulating businesses," he says. "The
only thing the Oregon Constitution says is you can't regulate a business
based on the content of the expression that's taking place inside. That,
to me, seems to be a pretty good principle."
On Speaking Terms
"Congress shall make no law...abridging the freedom of speech or of the
press."
First Amendment,
U.S. Constitution
"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 1 Section 8,
Oregon Constitution
To most people these two statements may seem very similar, but to legal
scholars a few words can mean all the difference in the world. The justices
of the state Supreme Court have interpreted the first article of Oregon's
Constitution, which is a little more emphatic than the First Amendment,
to give citizens free-speech protections far broader than those conferred
by the federal government and most other states.
- - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Willamette Week | originally
published February 3,
1999
|
