388
Submitted October 19, 2020, affirmed April 27, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
SCOTT WAYNE SMITH,
Defendant-Appellant.
Multnomah County Circuit Court
18CR53923; A170791
510 P3d 217
Defendant appeals from a judgment of conviction for second-degree intimidation. On appeal, he argues that the trial court erred in denying his demurrer, in which he asserted that the second-degree intimidation statute, ORS
166.155(1)(c)(A), violated Article I, section 8, of the Oregon Constitution and the
First Amendment to the United States Constitution. Held: The Court of Appeals
analyzed defendant’s state constitutional challenge under the legal framework
set forth in State v. Robertson, 293 Or 402,
649 P2d 569 (1982). In concluding
ORS 166.155(1)(c)(A) was a category two law under Robertson, the court held that
the statute was not overbroad, and thus was facially constitutional. In addition,
the court concluded that ORS 166.155(1)(c)(A) was not an impermissible content-based restriction under the First Amendment. Accordingly, the trial court
did not err in denying defendant’s demurrer under both state and federal constitutional grounds.
Affirmed.
Melvin Oden-Orr, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
Joyce, Judge.
JOYCE, J.
Affirmed.
Cite as 319 Or App 388 (2022) 389
JOYCE, J.
Defendant appeals from a judgment of conviction
for second-degree intimidation. His conviction arises from
an incident in which he used homophobic epithets against
a group of people whom he believed to be gay, threatened to
kill them, and threatened to blow up the apartment building in which the group lived. On appeal, he argues that
the trial court erred in denying his demurrer, in which he
asserted that the second-degree intimidation statute violates
Article I, section 8, of the Oregon Constitution and the First
Amendment to the United States Constitution. We affirm.
The relevant facts are not in dispute. Defendant
pleaded no contest to one count of second-degree intimidation. At the plea hearing, the trial court accepted the state’s
summary of the events leading up to the charge against
defendant. Defendant moved into a house across the street
from an apartment building. Some of the residents of that
building have AIDS and the “vast majority” of the residents
identify as members of the LGBTQ+ community. One of the
residents told defendant that many of the residents identify
as members of that community. Over the course of several
months, residents overheard defendant using homophobic
slurs. On the day of his arrest, defendant asked one of the
residents for a cigarette. Based on defendant’s prior behavior, the residents ignored him. Defendant then threatened
to kill the residents and to blow up their building, all while
using homophobic slurs.
After the state charged him with second-degree
intimidation, defendant demurred to the indictment. He
argued that the second-degree intimidation statute was
facially unconstitutional under Article I, section 8, of the
Oregon Constitution1 and the First Amendment of the United
States Constitution.2 The trial court denied the demurrer;
1
Article I, section 8, of the Oregon Constitution provides, “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.”
2
The First Amendment to the United States Constitution prohibits states
from enacting laws “abridging the freedom of speech.” US Const, Amend I; US
Const, Amend XIV (the First Amendment applies to the States through the Due
Process Clause of the Fourteenth Amendment).
390 State v. Smith
as noted, defendant pleaded no contest to the charge, reserving his right to challenge the denial of his demurrer. ORS
135.630. He now appeals.
ARTICLE I, SECTION 8, CHALLENGE
We start with defendant’s state constitutional challenge. State v. Cookman, 324 Or 19, 25,
920 P2d 1086 (1996)
(addressing state constitutional challenges before federal).
Defendant’s Article I, section 8, challenge is governed by the
familiar, if somewhat unwieldy, analytical framework set
forth in State v. Robertson,
293 Or 402,
649 P2d 569 (1982).
Under Robertson, a law is unconstitutional if it is “written
in terms directed to the substance of any ‘opinion’ or any
‘subject’ of communication” unless the scope of the restraint
is “wholly confined within some historical exception[.]”
Id. at 412. If a law is not directed at the substance of any
opinion, a court must nonetheless determine whether the law
focuses on forbidden effects and “the proscribed means [of
causing those effects] include speech or writing,” or whether
it is “directed only against causing the forbidden effects.”
State v. Babson,
355 Or 383, 391,
326 P3d 559 (2014) (quoting Robertson,
293 Or at 417-18). “If the law focuses on the
forbidden effects, and the proscribed means of causing those
effects include expression, then the law is analyzed under
the second Robertson category.”
Id. Under that category, we
determine “whether the law is overbroad, and, if so, whether
it is capable of being narrowed.”
Id. If the law focuses only
on forbidden effects, the law falls into the third Robertson
category, and an individual can bring an as-applied challenge to the law.
Id.
Our task here is to apply that framework to the
law that defendant challenges, ORS 166.155(1)(c)(A) (2017),
amended by Or Laws 2019, ch 553, § 1.3 That law provides
that a person commits second-degree intimidation if the
person “intentionally, because of the person’s perception of
race, color, religion, sexual orientation, disability or national
3
The legislature amended ORS 166.155 in 2019 to rename the offense of
intimidation to “bias crime” and to add gender identity as a protected class.
Or Laws 2019, ch 553, § 1. That law applies to crimes committed on or after
July 15, 2019. Defendant here committed the offense on May 10, 2019. We therefore apply the 2017 version of the statute, although substantively, it does not
affect our analysis.
Cite as 319 Or App 388 (2022) 391
origin of another person or of a member of the other’s family, subjects the other person to alarm by threatening” to
“inflict serious physical injury upon or to commit a felony
affecting the other person” or that person’s family member.
ORS 166.155(1)(c)(A).
On appeal, the parties agree—as do we—that
ORS 166.155(1)(c)(A) is directed at the pursuit of forbidden
effects, namely, causing another personal alarm by threatening serious injury or to commit a felony. See State v. Moyle,
299 Or 691, 697-98,
705 P2d 740 (1985) (concluding that the
harassment statute, which prohibits harassing, annoying,
or alarming another person through written or telephonic
threats, is aimed at forbidden effects). The parties also
agree—and we again agree—that the harm identified in
the law is one that can be brought about by the use of words,
e.g., threats. See
id. In short, the law is one that falls into
the second Robertson category. As such, we are required to
evaluate the law to determine if it “appears to reach communication privileged by Article I, section 8, or whether the
law can be interpreted to avoid such overbreadth.” State v.
Rangel,
328 Or 294, 300,
977 P2d 379 (1999). In doing so, we
must maintain “reasonable fidelity to the legislature’s words
and apparent intent.”
Id. at 302.
A trifecta of cases in which the Oregon Supreme
Court has interpreted laws similar to the second-degree
intimidation statute help illustrate, both individually and
collectively, the constitutional parameters of laws that are
designed to protect Oregon citizens against harassment and
threats. We thus describe those cases in some detail.
In Moyle, 299 Or 691, the Supreme Court construed
a harassment law that prohibited a telephonic or written
threat, former ORS 166.065(1)(d) (1971), renumbered as
ORS 166.065(1)(c) (1987). That law provided that a person
commits the crime of harassment if, “with intent to harass,
annoy or alarm another person,” the defendant “[s]ubjects
another to alarm by conveying a telephonic or written threat
to inflict serious physical injury on that person or to commit
a felony involving the person or property of that person or
any member of that person’s family, which threat reasonably
would be expected to cause alarm.”
Id. at 693.
392 State v. Smith
The court first determined that the law was a category two law under Robertson. Id. at 702. In light of that
conclusion, the court thus had to assess whether the law
was overbroad and whether it could be narrowed to avoid
constitutional infirmity.
Id. In addressing the first question, the court concluded that the statute as written could
implicate constitutionally protected expressions.
Id. But the
court narrowly construed several of the key elements and
concluded that the law was facially constitutional.
Id. at 703.
The court’s analysis began with the term “alarm.”
Id. In the
statute’s context, the court concluded that “alarm” meant
more than the “mere inconvenience or feelings of anguish”;
rather, the court held that “alarm” meant “being placed in
actual fear or terror resulting from a sudden sense of danger.” Id.4 The court also read “threat to inflict serious physical injury” to mean “fear of physical harm to one’s person.”
Id. In the court’s view, that construction was consistent with
the “traditional breach of the peace requirement that fear
of imminent personal violence be instilled in the victim.”
Id. And in light of those narrowing constructions, the court
construed “felony” to cover only threats to commit “violent
felonies.”
Id.
The court then considered whether the fact that
the law required neither proof of a specific intent to carry
out the threat nor an ability to do so affected its constitutionality. Id. It ultimately concluded that it did not, because
the requirements of actual alarm and the reasonableness of that alarm had a “similar purpose.”
Id. In other
words, the practical effect of those elements meant that
the law limited the reach of the law to threats that are
not constitutionally protected, namely threats that “are so
unambiguous, unequivocal and specific to the addressee
that they convincingly express to the addressee the intention that they will be carried out.”
Id. Construing the statute in that manner restricted the law to those threats
that would objectively—not just subjectively—cause the
victim to believe that the threat will be carried out.
Id. at
703-04.
4
The court did not explicitly tie that narrowing construction to any of the
law’s text; rather, it simply stated its understanding that alarm, as used in the
statute, meant being placed in actual fear or terror. Id.
Cite as
319 Or App 388 (2022) 393
Finally, the court went on to read the law to punish “only the person who expresses the intent to carry out
the threatened conduct” and “only if that person conveys the
threat to the intended victim[.]” Id. at 704. Construing the
law in that manner would distinguish between punishable
threats and “ambiguous, equivocal or non-addressee” statements to inflict injury that does not—or should not—cause
a reasonable belief that the threat will be carried out. Id.
Relying heavily on Moyle, the court in Rangel
applied a narrowing construction in construing a law that
prohibited stalking. In Rangel, the state charged the defendant with stalking under ORS 163.732. 328 Or at 296. That
statute provided that a person commits stalking if they
“knowingly alarm[ ] or coerc[e] another person” by engaging in “repeated and unwanted contact” and it is “objectively
reasonable for a person in the victim’s situation to have been
alarmed or coerced” and the repeated and unwanted contact cause the victim “reasonable apprehension regarding
the personal safety” of the victim.
Id.
Following Moyle, the court read “alarm” to be punishable as an element of stalking only if it constitutes a
threat. Rangel, 328 Or at 303. And although the statute used
the term “knowingly,” and thus did not require a specific
intent to carry out the threat or to have any present ability
to do so, the court applied the same narrowing construction
as it did in Moyle.
Id. at 304. The court concluded that the
requirements of actual alarm and the objective reasonableness of the alarm achieved the same “purpose and effect” as
having the specific intent.
Id. at 305-06.
Finally, in State v. Johnson, 345 Or 190,
191 P3d
665 (2008), the court construed a different subsection of the
harassment statute. ORS 166.065(1)(a)(B) provided that a
person commits the crime of harassment if the person “intentionally” “harasses or annoys another person by,” among
other options, “[p]ublicly insulting such other person by abusive words or gestures in a manner intended and likely to
provoke a violent response[.]” In short order, and with only
a fleeting reference to Moyle and no mention of Rangel, the
court concluded that the law was facially unconstitutional.
Johnson,
345 Or at 196. The court first noted that the law
394 State v. Smith
contained no requirement that the offender act violently or
offer to act violently, that the victim actually be put in fear
of violence, that the victim respond violently or even respond
at all, or that any possible violence be imminent.
Id. at 195.
Instead, the offense was complete if the person said words
or made gestures in public to provoke a violent response
“by someone at some time and the hearer” is harassed or
annoyed.
Id. (emphasis in original).
Those absent elements—and particularly the absence
of any requirement that violence be imminent—led the
court to conclude that the law was facially unconstitutional:
a harassment statute that contained no requirement that
violence is imminent “sweeps too much protected speech
within its reach to survive a facial challenge.” Id. at 196.
Although laws can protect people from “exposure to a reasonable fear of immediate harm due to certain types of
expression,” the legislature cannot make criminal annoying
or harassing speech and expression.
Id. at 196-97.
Moyle and Rangel on the one hand, and Johnson
on the other, serve as bookends for our analysis of ORS
166.155(1)(c)(A). We must decide whether ORS 166.155
(1)(c)(A) can be construed, as in Rangel and Moyle, to apply
only to proscribable threats, i.e., those threats that instill in
the victim (1) a fear of imminent and serious personal violence, (2) that is unequivocal, and (3) is “objectively likely to
be followed by unlawful acts,” or whether, as in Johnson, the
law simply attempts to criminalize unpleasant and annoying expression that does not put the hearer in fear of imminent violence.
We conclude that the second-degree intimidation
statute is not simply an attempt to criminalize offensive
and annoying expression; rather, it is intended to protect
individuals from alarm that is created by threats of serious physical injury and for that reason, is facially constitutional. To recap, ORS 166.155(1)(c)(A) prohibits “intentionally” “subject[ing] the other person to alarm by threatening
to inflict serious physical injury upon or to commit a felony”
affecting the other person or that person’s family member
and because of the perception of the other person’s race,
color, religion, sexual orientation, disability, or national
Cite as 319 Or App 388 (2022) 395
origin. Many of the law’s terms are the same as in Moyle
and Rangel, and, as in those cases, we construe them so
as to limit the law’s reach to creating a fear of imminent
personal violence likely to be carried out. “Alarm” means
“being placed in actual fear or terror resulting from a sudden sense of danger.” Moyle,
299 Or at 703 (emphasis added).
That limits the statute to “more than mere inconvenience or
feelings of anguish which are the result of angry or imposing words[.]”
Id. Additionally, ORS 166.155(1)(c)(A) specifies
the kind of fear or terror that must be threatened—that of
“serious physical injury” or commission of a “felony.” As in
Moyle, we read both terms to limit the kind of harm to that
of imminent personal violence. The “serious physical injury”
phrasing indicates that the legislature intended to prevent
“the fear of physical harm to one’s person.”
Id. at 703. That,
in turn, is consistent with the traditional breach of peace
requirement that “fear of imminent personal violence” be
instilled.
Id. The same holds true with respect to the phrase
“to commit a felony”—consistent with the law’s focus on
personal harm, and as the court in Moyle did, we construe
that term to “cover only threats to commit violent felonies”
against people.
Id. (emphasis in original).
Thus, the term “alarm,” in conjunction with the type
of harm specified in the statute, limits its reach to acts that
inflict a sudden sense of danger, an actual fear of imminent
personal violence. So construed, and in contrast to Johnson,
the law avoids running afoul of Article I, section 8. 345 Or
at 196 (law was facially unconstitutional in part because it
lacked an imminency requirement).
We also read ORS 166.155(1)(c)(A) to reach only
unequivocal and unambiguous threats that express to
the victim that the threat will be carried out (the second
and third requirements of a constitutionally proscribable
threat). Importantly, the statute requires that the defendant act intentionally. That term further limits the reach
of the law, as illustrated by contrast with Moyle and Rangel.
As noted, in Moyle, the law required neither proof of specific
intent to carry out the threat nor the ability to do so. 299
Or at 703. But the court nonetheless narrowly construed
the harassment statute and concluded that the elements of
396 State v. Smith
actual alarm and the objective reasonableness of that alarm
had a similar purpose, inasmuch as those elements limited
the reach of the law “to threats which are so unambiguous,
unequivocal and specific to the addressee that they convincingly express to the addressee the intention that they will
be carried out.”
Id. at 703; see also Rangel,
328 Or at 305-06
(applying similar analysis to that in Moyle).
Unlike the statutes in Moyle and Rangel, ORS
166.155(1)(c)(A) does require a specific intent to carry out the
threat—an act is criminalized only if the defendant “intentionally … subjects the other person to alarm by threatening” to inflict harm. “Intentionally” means that that the
person acts with “a conscious objective to cause the result[.]”
ORS 161.085(7). By requiring that the defendant act with
the conscious objective to achieve the particular result of
subjecting another person to alarm, i.e., fear or terror of serious physical injury or the commission of a violent felony, the
law is limited to those threats that are “so unambiguous,
unequivocal and specific to the addressee that they convincingly express to the addressee the intention that they will
be carried out.” Moyle, 299 Or at 703.5 Conversely, the intentionally mental state ensures that the law does not capture
“hyperbole, rhetorical excesses, and impotent expressions of
anger or frustration[,]” all of which are unlikely to be accompanied by that culpable mental state. Rangel,
328 Or at 303
(internal quotation marks omitted).
Defendant maintains that the statutes in Moyle
and Rangel were constitutional “only because of the ‘objective reasonable[ness]’ elements of the underlying statutes.”
(Emphasis in defendant’s brief.) That much is true, as far
as it goes. Defendant is correct that the laws challenged
in both cases required that the victim’s alarm be reasonable (in Rangel, that it be “objectively” reasonable) in the
circumstances and that that requirement was important to
5
Moyle also required that the individual act with intent, but with the intent
to “harass, annoy or alarm another person,” not the intent to place someone in
actual fear or terror resulting from a sudden sense of danger. Id. at 698. The latter intent, which is required by ORS 166.155(1)(a)(C), carries with it a statutory
requirement that was missing in the statute at issue in Moyle—a conscious objective to make a genuine threat that is perceived as such and not just as a means to
harass or annoy another person.
Cite as 319 Or App 388 (2022) 397
the court’s determination that the laws could be construed
to be constitutional. That limit was necessary because both
statutes required lesser culpability than an intent to cause
the harm. Moyle,
299 Or at 703 (noting that the law did not
require proof of specific intent to carry out the threat nor of
a present ability to do so); Rangel,
328 Or at 305 (the law,
which used the term “knowingly,” did not expressly require
a specific intent to carry out the threat nor any present ability to do so).
But neither case suggests that the presence of an
objective reasonableness element is the only way for a law
of this kind of be constitutional. We do not believe that any
magic words are required to pass constitutional muster.
Rather, the question is whether the elements of any particular law can be construed so as not to reach protected
speech. As described above, ORS 166.155(1)(c)(A) has elements that neither Moyle nor Rangel had, including the
requirement that the person act intentionally. That mental state, in conjunction with the other elements of the
law, limit the law’s reach to constitutionally proscribable
threats.
Accordingly, we conclude that, as construed, ORS
166.155(1)(c)(A) is not overbroad and the trial court correctly
denied defendant’s demurrer.
FIRST AMENDMENT CHALLENGE
Defendant also contends that ORS 166.155(1)(c)(A)
is facially unconstitutional under the First Amendment.
Under the First Amendment, the government cannot discriminate against particular kinds of speech that are based
on the “ideas or opinion it conveys.” Iancu v. Brunetti, ___ US
___, 139 S Ct 2294, 2299,
204 L Ed 2d 714 (2019). Laws that
target speech based on its communicative content are presumptively invalid. R. A. V. v. City of St. Paul,
505 US 377,
395,
112 S Ct 2538,
120 L Ed 2d 305 (1992). Threats of violence, on the other hand, “are outside the First Amendment.”
Id. at 388. Defendant, relying on R. A. V., argues that
because ORS 166.155(1)(c)(A) prohibits certain acts that are
motivated by particular types of bias, it is an impermissible
content-based restriction.
398 State v. Smith
We disagree. The law at issue in R. A. V. criminalized placing
“a symbol, object, appellation, characterization or graffiti,
including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know
arouses anger, alarm or resentment in others on the basis
of race, color, creed, religion or gender.”
505 US at 380. The United States Supreme Court struck
down that statute as unconstitutional because the law was
a content-based restriction; the law criminalized “fighting
words that contain … messages of ‘bias-motivated’ hatred”
or “messages based on virulent notions of racial supremacy.”
Id. at 392 (internal quotation marks omitted). In reaching
that conclusion, the Court observed that the law was “not
a prohibition of fighting words that are directed at certain
persons or groups,” which would be facially valid.
Id.
Unlike the law at issue in R. A. V., ORS 166.155
(1)(c)(A) does not criminalize an expression of bias. Rather,
it criminalizes the making of threats of physical harm or
violent felonies that cause the victim alarm. To be sure, the
law requires that the defendant’s actions be motivated by
the defendant’s perception of the victim’s characteristics,
but the threat of alarm is not so confined. In other words, as
the state observes, ORS 166.155(1)(c)(A) would apply regardless whether defendant threatened to “simply kill or blow up
the victims (as he did here) or whether he told the victims of
an intent to ‘kill all gay men.’ ” Indeed, ORS 166.155(1)(c)(A)
is precisely the kind of law that the Court presumed would
be valid in R. A. V.—a “prohibition of fighting words that
are directed at certain persons or groups.” The trial court
therefore correctly denied defendant’s demurrer on First
Amendment grounds.
Affirmed.
