No. 849 October 1, 2025 671
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID TRISTAN FLORES,
Defendant-Appellant.
Lane County Circuit Court
23CR13367; A182424
Michelle P. Bassi, Judge.
Submitted June 2, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joel Duran, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Carson L. Whitehead, Assistant
Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán,
Judge.
EGAN, J.
Affirmed.
672 State v. Flores
EGAN, J.
In this criminal case, defendant appeals his conviction for telephonic harassment under ORS 166.090(1)(b),
raising two assignments of error. First, he challenges the
denial of his demurrer and motion to dismiss, arguing that
the statute is facially unconstitutional because its affirmative defense for debt collectors, ORS 166.090(3), creates a
content-based distinction between permitted and prohibited
speech. Second, he challenges the denial of his motion for
judgment of acquittal, asserting that the statute is unconstitutional as applied to his conduct because it was “directed at
the content of defendant’s constitutionally protected speech,
viz., his exercise of his fundamental liberty interest in personal contact with his child.” For the reasons explained
below, we conclude that the affirmative defense for debt collectors results in an unconstitutional content-based restriction on free speech, but because it is severable, the remainder of the statute remains operative. Further, we conclude
that ORS 166.090(1)(b) is constitutional as applied to defendant. We therefore affirm defendant’s conviction.
BACKGROUND
Because defendant challenges the denial of his
motion for judgment of acquittal, we state the facts in the
light most favorable to the state. State v. Koenig, 238 Or App
297, 301,
242 P3d 649 (2010), rev den,
349 Or 601 (2011).
In 2020, defendant and J had a child together. Their relationship ended in July 2021, shortly after the child’s first
birthday. Although defendant and J were never married
and neither had sole legal custody, the child resided with
J after their separation. In the absence of a court-ordered
parenting plan, defendant would contact J by phone or text
to arrange parenting time on his days off work. According
to J, this informal arrangement was consistent and successful. She described their relationship as “coparents” and
“ex-partners.”
In January 2023, defendant traveled to Florida to
visit family, and during that time, J and defendant coordinated nearly daily phone calls between defendant and the
child. However, after defendant returned from Florida, he
Cite as 343 Or App 671 (2025) 673
began having difficulty reaching J to arrange visits. On
March 7, 2023, during a Facetime call, defendant made a
comment to the child about “physically disciplining him for
spitting.” J told defendant that he could not speak to the child
that way and needed to apologize. Defendant responded that
he “did not need to apologize to his son for disciplining him.”
Over the next couple of days, the two argued over the phone
and Facetime. Two days later, defendant repeatedly texted
and called J, asking to speak with or visit the child on his
days off. J told defendant to stop contacting her. Although
she did not perceive his messages as threatening, she testified that his behavior made her uncomfortable. After
being told to stop, defendant continued calling J repeatedly,
causing her phone to ring. When she eventually answered,
defendant told her he was coming to her apartment and that
she needed to bring the child outside.
Defendant later admitted to calling J repeatedly
after being told not to and acknowledged using a blocked
number to get her to answer. He explained that he “was
just pushing it over and over trying to get to [his] son” and
“wanted to annoy [J] until [he] got to talk to” the child.
Defendant was charged with telephonic harassment
under ORS 166.090(1)(b). ORS 166.090 defines the crime of
telephonic harassment as follows:
“(1) A telephone caller commits the crime of telephonic
harassment if the caller intentionally harasses or annoys
another person:
“(a) By causing the telephone of the other person to
ring, such caller having no communicative purpose;
“(b) By causing such other person’s telephone to ring,
knowing that the caller has been forbidden from so doing
by a person exercising lawful authority over the receiving
telephone; or
“(c) By sending to, or leaving at, the other person’s
telephone a text message, voice mail or any other message,
knowing that the caller has been forbidden from so doing
by a person exercising lawful authority over the receiving
telephone.
“(2) Telephonic harassment is a Class B misdemeanor.
674 State v. Flores
“(3) It is an affirmative defense to a charge of violating subsection (1) of this section that the caller is a debt
collector, as defined in ORS 646.639, who engaged in the
conduct proscribed by subsection (1) of this section while
attempting to collect a debt. The affirmative defense created by this subsection does not apply if the debt collector
committed the unlawful collection practice described in
ORS 646.639 (2)(a) while engaged in the conduct proscribed
by subsection (1) of this section.”
Before trial, defendant filed a combined demurrer
and motion to dismiss, arguing that ORS 166.090(1)(b)
violates the free speech guarantees of Article I, section 8,
of the Oregon Constitution,1 the First Amendment to the
United States Constitution,2 and the Equal Protection
Clause of the Fourteenth Amendment.3 He contended that
the statute imposes a content-based restriction on speech
due to the affirmative defense in ORS 166.090(3), which
exempts debt collectors attempting to collect a debt from
punishment under the statute. Because the statute grants
an affirmative defense based on the subject matter of the
communication, defendant argued that it fails to satisfy
the established historical exceptions necessary to survive
scrutiny under Article I, section 8. He further asserted that
the statute cannot survive the strict scrutiny applied under
the First Amendment because it is not narrowly tailored to
serve a compelling governmental interest. Defendant also
raised an equal protection challenge under the Fourteenth
Amendment, arguing that ORS 166.090(3) irrationally
exempts debt collectors without a sufficient justification and
impermissibly limits the defense based on the content of
their speech.
1
Article I, section 8, provides that, “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 provides, “Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.” US Const,
Amend I.
3
In relevant part, the Fourteenth Amendment provides, “[N]o state shall
… deny to any person within its jurisdiction the equal protection of the laws.”
US Const, Amend XIV, § 1.
Cite as 343 Or App 671 (2025) 675
In response, the state relied on this court’s decision
in State v. Hibbard, 110 Or App 335, 823, P2d 989 (1991),
which upheld ORS 166.090(1)(a)—prohibiting phone calls
with no communicative purpose—against similar constitutional challenges. The state argued that Hibbard was controlling of defendant’s arguments.
At the hearing on defendant’s demurrer, the trial
court asked defendant to explain why Hibbard was not dispositive. Defendant responded that he was charged under
a different subsection, ORS 166.090(1)(b), which applies to
calls made with communicative intent, and that Hibbard
did not address the content-based nature of the affirmative
defense in ORS 166.090(3). He also argued that Hibbard was
wrongly decided. The trial court concluded that Hibbard was
controlling and denied the demurrer and motion to dismiss.
At trial, defendant moved for judgment of acquittal, arguing that ORS 166.090(1)(b) was unconstitutional
as applied to the facts of his case because it was directed
at the content of his constitutionally protected speech—
his repeated efforts to contact J about his child. The trial
court denied that motion as well. Defendant was tried by a
jury and found guilty of telephonic harassment under ORS
166.090(1)(b). Defendant now appeals.
DEMURRER AND MOTION TO DISMISS
On appeal, defendant argues that the trial court
erred in upholding the constitutionality of ORS 166.090
(1)(b) under Article I, section 8, and the First Amendment.
He contends that the statute imposes a content-based
restriction on speech because ORS 166.090(3) exempts
speech made in the context of debt collection, based solely
on its subject matter. Accordingly, he argues that the whole
statute is unconstitutional. Even if portions of the statute
can be severed, defendant asserts that the portion of the
statute applicable to him cannot be saved. Rather, he argues
that the only portion of the statute that is complete and can
be executed in accordance with the 2005 legislature’s intent
is ORS 166.090(1)(a), which prohibits telephone calls made
with no communicative purpose that are intended to harass
or annoy. Alternatively, defendant argues that the statute
676 State v. Flores
violates the Equal Protection Clause of the Fourteenth
Amendment because it grants immunity to debt collectors
without a rational basis and lacks a compelling state interest for limiting the affirmative defense in ORS 166.090(3)
based on the content of a speaker’s message.
We review a facial challenge to the constitutionality
of a statute for errors of law. State v. Rangel, 328 Or 294,
298,
977 P2d 379 (1999). For the reasons explained below,
we resolve this case by addressing defendant’s state constitutional arguments. State v. Velykoretskykh,
268 Or App 706,
707 n 2,
343 P3d 272 (2015) (Under the state court’s “ ‘first
things first’ doctrine, we have an obligation to address state
constitutional law claims before federal ones.”).
Article I, section 8, provides that, “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.” The analytical framework for evaluating a law’s constitutionality under Article I, section 8,
is set forth in State v. Robertson, which divides laws into
three categories. 293 Or 402,
649 P2d 569 (1982) Under
Robertson’s first category, 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”
293 Or at 412. If a law is not directed at the substance
of any opinion and survives that inquiry, a court must 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). That framework distinguishes “between laws that focus on the content
of speech or writing and laws that focus on the pursuit or
accomplishment of forbidden results.” State v. Plowman,
314 Or 157, 164,
838 P2d 558 (1992) (emphasis in original).
Content-focused laws sometimes are referred to as falling
within “the first category of Robertson.” E.g., Babson,
355
Or at 394. The Robertson court further divided laws focusing on forbidden effects into laws that expressly prohibit
Cite as
343 Or App 671 (2025) 677
expression in achieving those results (the second Robertson
category) and those that do not refer to expression at all (the
third Robertson category). Plowman,
314 Or at 164; see also
Babson, 355 or at 391 (describing three categories).
Here, the trial court relied on Hibbard, which
upheld the constitutionality of ORS 166.090(1)(a) but did
not address ORS 166.090(1)(b) or the content-based affirmative defense in ORS 166.090(3) that is the focus here.
Although defendant argues that the affirmative defense,
if found unconstitutional, would render the whole statute
unconstitutional due to subsection (3) because it is not severable, we focus only on the particular paragraph at issue
in this case—paragraph (1)(b). In assessing that argument,
we apply the Robertson framework to the defense and then
consider if it may be severed.
First, we conclude that the inclusion of ORS
166.090(3) brings ORS 166.090(1)(b) within the first
Robertson category. ORS 166.090 as a whole expresses the
state’s interest in prohibiting telephone calls and text messages that are made with the intent to harass or annoy and
that do, in fact, harass or annoy the recipient. As the legislative history demonstrates, ORS 166.090 was originally
enacted to apply uniformly to all callers, regardless of their
occupation or purpose for calling. Police officers, court staff,
probation officers, and other individuals whose calls might
serve important governmental functions were not exempt.
For 18 years, the statute operated without any categorical
exemptions. However, in 2005, the legislature added the
affirmative defense in ORS 166.090(3) at the request of the
Oregon Collectors Association, which argued that professional debt collectors were already subject to extensive regulation under civil law. It provides an affirmative defense
for individuals who make harassing or annoying calls in the
course of collecting a debt, so long as the conduct does not
involve threats or unlawful collection practices. By its text,
ORS 166.090(3) is written in terms directed to the subject
of communication—debt collection. While the legislature
may not have intended to privilege the speech of debt collectors over that of other callers, the practical effect of the
affirmative defense is to do precisely that. As such, to be a
678 State v. Flores
constitutional addition to ORS 166.090(1)(b), ORS 166.090(3)
must fit within some well-established historical exception
that would justify treating communication regarding debt
collection differently from communication regarding other
subjects.
We are not aware of any well-established historical exception that would justify treating debt collection
speech differently from other types of harassing or annoying speech. Accordingly, we find that the inclusion of ORS
166.090(3) makes ORS 166.090(1)(b) a content-based restriction on speech that violates Article I, section 8. Because we
resolve the claim under the state constitution, we do not
reach defendant’s federal arguments.
However, even though we agree with defendant
that the inclusion of ORS 166.090(3) makes ORS 166.090(1)
(b) unconstitutional, that does not end the matter. We next
address whether ORS 166.090(3) can be severed from the
remainder of the statute. The doctrine of severability allows
a court to strike down an unenforceable or illegal part of a
statute, while keeping the valid parts in effect. This allows
a statute to continue to operate even if a specific provision
is found invalid. See Outdoor Media Dimensions v. Dept. of
Transportation, 340 Or 275, 300,
132 P3d 5 (2006) (holding
that “when part of a statute is found to be unconstitutional,
the whole statute need not be invalidated if the unconstitutional part is severable from the remainder of the statute”).
ORS 174.040 provides a preference for severing an
unconstitutional portion for a statute unless:
“(1) The statute provides otherwise;
“(2) The remaining parts are so essentially and inseparably connected with and dependent upon the unconstitutional part that it is apparent that the remaining parts
would not have been enacted without the unconstitutional
part; or
“(3) The remaining parts, standing alone, are incomplete and incapable of being executed in accordance with
the legislative intent.”
In Outdoor Media Dimensions, the Supreme Court had
to decide whether the provisions of the Oregon Motorist
Cite as 343 Or App 671 (2025) 679
Information Act (OMIA) violated Article I, section 8, by differentiating between signs for on-premises and off-premises
activities and for requiring permits for off-premises signs.
340 Or at 300. Pursuant to ORS 174.040, the court determined that the OMIA’s provisions were not content neutral
but that the OMIA was not unconstitutional in its entirety.
Id. at 301.4 The Court could have ended the different treatment either by: (1) striking from the OMIA the exemption from the permit requirement for on-premises signs or
(2) striking the permit requirement itself as it applied to off-premises signs.
Id. Ultimately, it concluded that the appropriate remedy was to strike from the OMIA the permit and
fee requirements for off-premises signs.
Id. at 302.
None of the three exceptions to severance apply
here. First, nothing in the text of ORS 166.090 provides that,
if any part of that statute were held to be unconstitutional,
the remaining parts should not remain in force. In looking at
the second and third factors, as discussed above, the legislative history shows that ORS 166.090 was enacted to protect
individuals from unwanted harassing or annoying telephone
calls that they had expressly forbidden. For 18 years, the
statute applied to all callers, regardless of occupation or purpose, and operated without any categorical exemptions. The
affirmative defense in subsection (3), which applies only to a
narrow class of callers—debt collectors attempting to collect
debts—was added in 2005. The original provisions are not
essentially nor inseparably dependent on that affirmative
defense. They functioned effectively for nearly two decades
before the affirmative defense was added and remain complete and capable of execution consistent with the legislature’s intent to prohibit harassing or annoying phone calls
from any caller to a person who has directed them to stop.
Accordingly, we hold that ORS 166.090(3) is severable from ORS 166.090(1)(b).
4
The court explained that “when one part of a statute is found unconstitutional, [the] practice (and the legislature’s stated preference) is to sever the
offending part and save the remainder of the statute, unless the legislature has
directed otherwise, unless the parts of the statute are so interconnected that it
appears likely that the remaining parts would not have been enacted without the
unconstitutional part, or unless the remaining parts are incomplete and cannot
be executed in accordance with legislative intent.” Outdoor Media Dimensions,
340 Or at 300 (discussing ORS 174.040).
680 State v. Flores
MOTION FOR JUDGMENT OF ACQUITTAL
We turn to defendant’s argument that ORS 166.090
(1)(b) is unconstitutional as applied to him. Defendant argues
that he was unconstitutionally convicted for the content of
his speech when trying to reach his son. The state contends
that defendant was convicted of calling J repeatedly after he
had been told not to do so, not because of the subject he was
calling about.
As quoted in the previous section, we look to the
framework set out in Robertson to address Article I, section 8, free expression issues. As explained above, when
the affirmative defense in ORS 166.090(3) is included,
ORS 166.090(1)(b) falls within the first Robertson category
because its affirmative defense is based on content. However,
after ORS 166.090(3) is excised from ORS 166.090(1)(b), ORS
166.090(1)(b) falls within the third Robertson category—
laws that focus on forbidden effects and do not refer to expression at all. See Koenig, 238 Or App at 303 (ORS 166.090
(1)(b) falls in the second Robertson category because expressive conduct “is not relevant to proving the forbidden result
(harassment)”); see also Plowman,
314 Or at 164 (describing
categories).
To determine whether a “category three” law violates Article I, section 8, as applied to particular conduct,
“the court must examine how the law was applied to determine whether the application was directed at the content or
the expressive nature of an individual’s activities, advanced
legitimate state interests, and provided ample alternative opportunities to communicate the intended message.”
Babson, 355 Or at 408. In Koenig, we explained that ORS
166.090(1)(b) was constitutional as applied to the defendant
there because it “prohibits harassment (a forbidden result)
by the express means of causing another person’s telephone
to ring (nonexpressive conduct), and defendant was charged
accordingly. Put another way, the expressive conduct identified by defendant (his speech during the telephone calls) is
not relevant to proving the forbidden result (harassment).”
238 Or App at 303. In that case, the defendant did not
directly challenge the constitutionality of ORS 166.090(1)(b),
rather he only contended that the record was devoid of
Cite as
343 Or App 671 (2025) 681
evidence that he had the intent to harass or annoy the
recipients of the calls. Id. at 300-01. We held that a finding of intent to harass or annoy was supported by sufficient
evidence based on, among other things, the frequency of
the defendant’s calls after he had been told not to call. Id.;
accord State v. Cook,
334 Or App 437,
556 P3d 11 (2024)
(explaining, regarding ORS 166.090(1)(c), “The intent of the
person who sends the text message must be to harass or
annoy, but the actual text message itself could be anything.
It is the act of sending the text itself that is the proscribed
means of causing harm.”).
Here, defendant admitted that he “wanted to annoy
[J] until [he] got to talk to” the child, establishing his intent
to annoy her. Defendant also acknowledged that he repeatedly caused her phone to ring, despite knowing it was her
phone and that she had asked him not to call. It is that
conduct—not his underlying reason for wanting to reach
her—that supports his conviction.
Next, we analyze whether ORS 166.090(1)(b)
advances legitimate state interests. Here, the statute serves
to protect individuals from unwanted phone calls that are
intended to harass or annoy. The legislature has historically
sought to protect individuals from harassment as part of its
broader objective of ensuring personal security among the
citizenry. State v. Moyle, 299 Or 691, 700,
705 P2d 740 (1985).
The original harassment statute was intended specifically
to reach “ ‘disorderly conduct’ creating alarm or annoyance
for an individual,” while the disorderly conduct statute
was intended to prohibit “disturbances of general or public impact.”
Id. at 700 (quoting Proposed Oregon Criminal
Code § 223 (1970) (emphasis in original)). ORS 166.090(1)(b)
specifically criminalizes causing a telephone to ring with
the intent to harass or annoy after being forbidden to do so
by the lawful owner of the telephone. This provision aims to
prevent unwanted and intrusive communications that can
disrupt individuals’ lives and cause emotional distress. We
conclude that this provision does advance a legitimate state
interest.
Finally, we consider whether there were ample
alternatives for the defendant to communicate his message,
682 State v. Flores
and we conclude that there were. We agree with the state
that to the extent that defendant believed that J was keeping him from accessing his child, the remedy was not to
harass and annoy J with repeated phone calls in violation of
ORS 166.090(1)(b). Rather, defendant could have taken one
of numerous alternatives, e.g., invoking the judicial process,
going to J’s house to speak with her, or leaving a note at J’s
front door.
We find that ORS 166.090(1)(b) is constitutional
as applied to the facts of defendant’s case. Accordingly,
the court did not err in denying his motion for judgment of
acquittal pursuant to ORS 166.090(1)(b).
In summary, we conclude that the inclusion of the
content-based affirmative defense in ORS 166.090(3) makes
ORS 166.090(1)(b) unconstitutional in part, but the defense
is severable. Absent the affirmative defense, ORS 166.090
(1)(b) is constitutional and enforceable both on its face and
as applied to defendant. Accordingly, we affirm defendant’s
conviction under ORS 166.090(1)(b).
Affirmed.
