The Oregon Supreme Court Simply Makes It Up

Right From the Start

[Mr. Huss is traveling this week.  We have resurrected one of his favorite columns that first appeared in the Medford Mail Tribune in October 0f 2005]

The Supreme Court of Oregon has just released its newest opinion on “free speech.” It is a profoundly clumsy act of judicial self-gratification. More importantly, it is just plain stupid, and precisely the kind of opinion over which critics of judicial activism rend their garments (an ironic protest in this case). It is the kind of opinion that should make lawyers blush at its banality and legislators see red due to its obvious interference in policymaking.

Let’s make sure we know precisely what we are talking about here—a strip club. If you are easily offended stop right here.

I would like to quote directly from the court’s opinion but the MailTribune is a family newspaper and even the court’s description of the strippers’ offending conduct is too graphic. So let’s put it this way, in one instance, the stripper masturbated and in the other two strippers got overly friendly with their customers and each other.

Okay. I’m not a prude. I really don’t care whether there are strip clubs or what goes on inside those clubs as long as it is consensual and does not involve minors. What I do care about is a judge’s rulings that legislates a right in direct contravention of the legislature, a judge’s ruling that raises private perversions to a constitutional right.

Please explain what live “sex shows,” whether solo or in pairs, has to do with “free speech.” The whole purpose of a “strip club” is to provide prurient pleasures to the patrons. When did sexual arousal become a constitutional right to free speech?

But the Court piously intoned that they are “duty bound” to “ascertain the intent of the provisions’ framers and the intent of those who voted to adopt it.” The Court is going to use their superior hindsight to determine the intent of people dead now for over 100 years.

Folks, we all know that in 1859 what the delegates to the constitutional convention had on their minds when they were discussing the cherished right of free speech was really masturbation and oral sex. Picture them sitting in their chambers deciding that while the U. S. Constitution and other states’ constitutions debated “free speech” as a political issue, the people of Oregon would look at it as a sexual issue. Surely one of the delegates rose and said, “When I say that I want ‘no law restraining the free expression of opinion,’ I mean that I want to see live sex between naked girls.” And another delegate chimed in, “Yes, and when I say that I want no law ‘restricting the right to speak, write or print freely,’ I mean I want naked girls to rub their breasts on me.”

I’m pretty much sure that’s what the framers had in mind.

And surely that’s what Oregon voters were thinking as they adopted Article I, section 8 of the Oregon Constitution. Never mind that at the time of the adoption of the Constitution laws on the books made it a crime to expose one’s private parts in a way that offended decency or elicited lewd thoughts or acts.

But such historical facts never deter an elitist—or a Supreme Court justice. While the court acknowledged all of those historical facts, they simply dismissed them as not being “well established.” That is the moral equivalent of saying, “Who are you going to believe, me or your lying eyes?”

You know you’re getting scammed when it takes 36 pages to explain why common sense should be tossed out the window.

Yes, despite the laws at the time of the adoption of the Oregon Constitution, despite Oregon’s unbroken string of laws seeking to regulate lewd conduct, despite the fact that virtually every other state in the nation has interpreted its constitution to regulate such conduct, and in spite of a specific statutory prohibition of the exact conduct described above having been adopted by the Oregon legislature—the policy making branch of government—the Supreme Court of Oregon knows better. They have elevated a teenage boy’s naughtiest fantasies to a constitutional right.

In yet another twist of jurisprudence, the court determined that while you have a constitutional right to engage in this conduct, whether for free or for profit, if someone pays you to engage in that conduct, that person is guilty of promoting prostitution. How in the world can you be guilty of prostitution if you are paying someone to exercise their constitutional right to free speech? To this Supreme Court, profit is apparently a greater sin than live sex acts at a strip club.

But let’s get serious. There is no constitutional right to engage in live sex acts in a strip club in Oregon. The Court just made it up, and then they have to twist the facts and the history of the law to make it seem right.

They should have listened to their mothers when they were told that if they keep doing that they will go blind.