State v. Ray

¶1concurring.

¶2The Court rightly confines itself to affirming that ORS 166.065(1)(e) is invalid, as the Court of Appeals held. But because that section itself was an effort to rewrite the telephone harassment statute that was held to violate Article I, section 8, of the Oregon Constitution in State v. Blair, 287 Or 519, 601 P2d 766 (1979), legislators may be led to conclude that no law at all can be passed to deal with abusive telephone calls. This is not necessarily so.

¶3*602For instance, under some circumstances a person engaging in verbally abusive conduct can be held liable in tort if his or her identity is known, which of course is necessary for any sanction. See, e.g., Turman v. Central Billing Bureau, 279 Or 443, 568 P2d 1382 (1977) (abusive debt collection telephone calls found to be intentional infliction of emotional distress). There is no obvious reason why the state cannot assist persons so injured to a specified compensatory damages remedy rather than leaving them to pursue a tort remedy entirely on their own. Abuse of speech under Article I, section 8, that injures another’s person, property, or reputation, Article I, section 10, can be a tort even when it cannot be punished as a crime.1 Moreover, modern telephone technology gives rise to other problems of possible abuse besides offensive communications and may permit types of regulation whose validity is not prejudged in this case.

¶4The almost invariable legislative impulse when seeking to make harmful behavior “unlawful” is to turn to the criminal law. I mean no more than to suggest that when the state’s object is to help victims of abusive behavior, criminal law is not the only choice.