Free speech and lap dances: Oregon's curious Constitution

By Jayson Jacoby April 22, 2011 01:18 pm

Although I rarely go anywhere unclothed, I have no particular objection to nudity.

You don’t see much of it around here anyway, what with sub-zero weather common, and a potentially carcinogenic solar index for half the year.

But though I don’t care whether people bare a little skin or a lot when they’re at home or in a public setting where children aren’t allowed, I am a trifle troubled when brazen displays of flesh are made the measuring stick, so to speak, for how well America is living up to its reputation as a bastion of freedom for the individual.

This reputation seems to me a good deal more noble when it’s offered in defense of, for instance, the aggrieved woman berating her government in the town square, rather than the jiggling breast molded around a shiny brass pole.

In Oregon, though, freedom of expression has gotten intertwined over the years not only with political commentary, but rather with what purveyors describe, in an admirably vague euphemism, as “exotic entertainment.”

(Which sounds like it might refer to a South Pacific island native pounding on some drums. Except it doesn’t.)

Forget the brand of patriotism that the likes of Patrick Henry trucked in during our nation’s infancy.

In Oregon the martial cry is “give me nipples or give me death.”

(And Larry Flynt never even lived here.)

The source of our state’s dogged legal defense of certain businesses — those that profit from heterosexual males’ insatiable curiosity about a woman’s bare form — is an especially august document: Oregon’s Constitution.

Specifically, Article 1, Section 8, which is our version of the First Amendment to the U.S. Constitution.

Oregon’s Constitution forbids laws “restraining the free expression of opinion, or restricting the right to speak, write or print freely on any subject whatever.”

The First Amendment, though its purpose is obviously similar, isn’t quite so general. It prohibits Congress only from making any law “abridging the freedom of speech or of the press.”

The most obvious result of this difference between the state and federal constitutions seems to be that in Oregon, unlike most states, local government officials are legally forbidden from restricting where nude dancing or other adults-only establishments can locate based solely on the type of entertainment or products such businesses offer.

That’s what Oregon courts have decided, anyway.

This is why your kids might be able to see a strip club from their school’s playground.

This permissive legal atmosphere has been lodging in the craws of certain Oregon lawmakers for the better part of two decades.

Three times — in 1994, 1996 and 2000 — the Legislature gave voters the chance to amend the state Constitution to exclude obscenity or sexually oriented businesses from the shelter of Article 1, Section 8.

Voters sided with the exotic entertainers each time, choosing to leave the Constitution as it is.

These failures have not daunted legislators.

This year a group of lawmakers has taken a different tack — outright plagiarism.

They’ve introduced resolutions (Senate Joint Resolution 37, House Joint Resolution 35) which ask voters to simply replace Article 1, Section 8 with the First Amendment, the latter plucked verbatim from the U.S. Constitution.

“The First Amendment has worked pretty well for a couple hundred years now,” said state Rep. Tobias Read, a Democrat from Beaverton who supports the resolutions.

Indeed it has.

Which is not to say that Oregonians aren’t capable of getting ahead of Founding Fathers on important matters of public policy.

It was our bright idea, after all, not James Madison’s, to clean up our highway shoulders by putting a nickle or a dime deposit on soda and beer containers.

In the case of the Bottle Bill, the “Oregon way” is without a doubt the better way.

I’ve tried to apply the same technique to assemble a compelling case for why Oregon’s Constitution outshines the federal treatise as regards freedom of expression. But I can’t make a go of it.

So far as I can tell, if Oregon adopts the First Amendment as its standard, the only people likely to be affected are the owners, employees and customers of strip clubs and adult bookstores.

I’ve not seen any evidence suggesting that this proposed change would diminish in any way my freedom to express my opinion, or come to that anyone who wants to speak, or write, his piece in this state.

In other words, amending the Oregon Constitution, as some lawmakers suggest, would stifle no form of expression that doesn’t involve lap dances.

(Actually it’s not clear to me what lap dances have to do with the Oregon Constitution anyway, considering Article 1, Section 8 specifically protects the “expression of opinion.” There’s a certain amount of expressing going on during such a performance, but I don’t know what the opinion might be.)

“Stifle” probably overstates the matter, in any case.

Making the First Amendment the law of this land we call Oregon would not immediately ban adult businesses.

At most this change might allow cities and counties to regulate where such businesses can open.

Which isn’t much of a restriction.

Unless, of course, you believe that people patronize such places only because they’re conveniently close to home.

I’m skeptical.

It seems to me that for customers who willingly pay 10 bucks for a glass of soda just to get in the door, forcing them to drive a few extra miles is a pretty poor deterrent.

.        .        .

Portland’s enthusiasm over its new Major League Soccer team makes me chuckle.

Not because soccer, no matter what they call the league, will always be a minor league sport in America.

What tickles me are the team’s mascot and the unofficial name of its cadre of especially zealous fans.

“Timbers” seems to me a singularly inapt mascot for Portland, and “Timbers Army” an equally incongruent name for its fan base.

Sure “Timbers” has a historical link to the city. One of Portland’s nicknames is “Stumptown” — appropriate considering how many billions of board-feet of Oregon lumber has floated past the city on the Willamette and the Columbia.

But, though I abhor stereotyping, I think it’s reasonable to say that a majority of Portlanders today, in the post-spotted owl ruling era, would rather look at a tree than saw it down (or fell it with the axe that is part of the Timbers’ logo).

And based on the protests that were common in downtown Portland after President Bush ordered the invasion of Iraq in 2003, I would think a considerable number of Portlanders would join almost any sort of outfit before they’d acknowledge membership in an Army.

Jayson Jacoby is editor of the Baker City Herald.