A victory for free speech in Oregon

August 19, 2008 12:00 am

Oregon's Constitution, like its federal counterpart, is a wonderful document that protects people who say terrible things.

"Saying," in this instance, being quite different from "doing."

Both our state and country have a litany of laws that prohibit people from doing all sorts of things that harm another person in a tangible way — stealing someone's car, for example, or shooting someone dead.

Hardly anyone opposes such laws because most everyone understands those laws help to preserve some semblance of order in a society.

We hope, anyway, that the punishments will deter car thieves and murderers.

Those kinds of laws are nearly universal, enforced in democracies as well as dictatorships, in capitalist countries as well as communist.

The presence of such laws on any country's books, though, tells nothing about how free that particular place's citizens are.

A far better barometer of freedom is to gauge the level of pressure a country exerts to control what its citizens say, as opposed to what they do.

Article 1, Section 8 of Oregon's Constitution puts it this way: "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."

That's a pretty straightforward statement.

Unfortunately, since Oregon's Constitution was adopted the state's legislators have passed at least one law that seems ignorant of Article 1, Section 8.

That law, which is rich in parentheses if not constitutional adherence, is ORS 166.065(1)(a)(b). According to that law, a person is guilty of harassment if he or she is "publicly insulting another person by abusive words or gestures in a manner intended and likely to provoke a violent response."

Contrast that law and its murky language with the unequivocal Oregon Constitution.

Who can say which words are "abusive" and which are merely annoying? Can we conclude with absolute certainty that a person intends his words to make a violent response likely? What constitutes a violent response, and how likely is likely enough?

Oregon's Constitution, by contrast, precludes such vagaries of interpretation by its sheer bluntness. "No law" is immune to parsing. So is "on any subject whatever."

Fortunately, Oregon's Supreme Court recently rendered a decision that upholds the Constitution, rather than ORS 166.065, as the arbiter of our state's tolerance for words.

That decision overturned the harassment conviction of a man who yelled profane, homophobic and racist epithets at two women whose car pulled in front of his pickup truck.

The man did not touch either woman, nor did he threaten to harm the pair.

Justice W. Michael Gillette, who wrote the opinion outlining the court's unanimous decision, noted: "Courts have long recognized that even speech that is intended and likely to produce violence may not be criminalized unless the violence is imminent."

Right there is the crux of the matter.

If the Oregon Constitution is to have any relevance, then it must ensure that people can say words — even insulting and degrading words — without fearing they'll be arrested simply because someone believed those words were intended to cajole another person into lashing out with a right cross.

The case on which the Supreme Court ruled would have been quite different had the man, for instance, told the women he was going to kill them and then pointed a rifle at them.

That's a situation in which a reasonable person would think violence was, as Justice Gillette wrote, "imminent."

Calling someone nasty names, however, lacks that implied threat of violence.

We sympathize with the two women who were subjected to such vulgarity, but that's hardly sufficient reason to trample on one man's — and thus by legal precedent everyone's — precious constitutional rights.

Gillette wrote in his opinion: "Harassment and annoyance are among common reactions to seeing or hearing gestures or words that one finds unpleasant. Words or gestures that cause only that kind of reaction, however, cannot be prohibited in a free society, even if the words or gestures. . . are insulting, abusive, or both."

That's nicely put.

The truest test of Oregon's Constitution is not that it protects our right to say words which make people smile.

It's the words that make people grit their teeth in anger which are the first to be choked into silence by the overreaching grip of government.