dissenting.
Neither the majority opinion nor the concurrence persuades me that a law requiring nude “adult” entertainers to remain four feet away from their audience survives scrutiny under Article I, section 8, of the Oregon Constitution as construed by binding Oregon Supreme Court precedent. I understand that the majority finds support in an opinion of this court. 1 For that reason, this dissent is not only swimming upstream, but swimming upstream through water that is over the dam. The arguments have been made here before; I will therefore be brief.
The majority holds that this case is controlled by State v. Ciancanelli, 181 Or App 1, 45 P3d 451, rev allowed, 335 Or 90 (2002). 184 Or App at 634-35. That may or may not be accurate.2 Assuming that it is, I dissent because I believe that Ciancanelli was wrongly decided. I did not participate in that case, and I neither want nor intend to reopen the thorough debate between its majority and dissents. Suffice it to say that, in my opinion, the Ciancanelli majority’s historical research does not demonstrate that, at the time the Oregon Constitution was written and adopted, a widely known and well-established statute or common-law principle prohibited people from putting on, participating in, or observing shows including nudity, when the nudity was not exposed to view by the general, unwilling public. The research does demonstrate that exposing the genitals to the general, unwilling public was widely banned. And from the research we can probably infer that, had the framers been asked whether lawmakers *656could ban limited-admission sex shows, they would unhesitatingly have said that they could. They might well have said such shows were already unlawful. But the crucial fact is, nothing in the majority’s historical research shows that such a ban did exist and that it was well established and widely known. That is what State v. Robertson, 293 Or 402, 649 P2d 569 (1982), and subsequent Supreme Court cases require. Further, even if historical research could uncover a well-settled law banning limited-admission nude shows, that is not the kind of historical exception that Robertson envisions: that case uses the carefully chosen phrases “conventional crime,” id. at 433, and “historical exception that was well established,” id. at 412. It provides examples: “peijury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.” Id. at 412. Laws regulating nude dancing or sex shows, whether we approve of them or not, are not the kind of well-established conventional speech crimes that the Robertson court envisioned.
The concurrence takes a different approach, arguing that the Nyssa ordinance is not addressed to expression per se but to the harmful effects of nude dancing within four feet of patrons, namely, “sexual contact between performers and customers.” 184 Or App at 644 (Edmonds, J., concurring). For that reason, the concurrence reasons, the ordinance survives, because laws aimed at harm caused by speech are permissible unless overbroad. Id. at 649 (Edmonds, J., concurring). That analysis cannot be reconciled with City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988). The bedrock principle of Tidyman is that lawmakers cannot ban particular expressions based on the presumption that the expressions cause harm (so-called “secondary effects,”Renton v. Playtime Theaters, Inc., 475 US 41, 47, 106 S Ct 925, 89 L Ed 2d 29 (1986)), even if those presumptions are stated in legislative findings and the harm is of the type ordinarily subject to regulation.3 Instead, lawmakers must specify the harm and may ban the expression only *657when it causes that harm or is imminently likely to do so. Tidyman, 306 Or at 185-86. That rule is not mere linguistic game-playing; it prevents lawmakers who might find certain expression to be offensive from banning it pretextually on the excuse that it is “harmful.” By requiring specification of the harm itself and banning the expression only when the harm occurs or is imminent, the Tidyman rule permits lawmakers to regulate the harm they purport to be regulating when they employ a “secondary effects” analysis while prohibiting them from using such an analysis as a smoke screen to ban expression that, for one reason or another, they do not like.
Ordinarily, a statute that bans speech when the speech causes a regulable effect must specify what that effect is and operate only when the effect is accomplished or imminently likely. State v. Stoneman, 323 Or 536, 920 P2d 535 (1996), creates a very narrow exception. In that case, the Supreme Court upheld a statute imposing criminal sanctions for observing or obtaining child pornography in the form of a “ ‘photograph, motion picture, videotape or other visual reproduction of sexually explicit conduct by a child under 18 years of age.’ ” Id. at 539 (quoting ORS 163.680). The court upheld the statute because it indirectly criminalized “material, the production of which necessarily involves harm to children.” Id. at 546 (emphasis in original; footnote omitted). The court carefully noted that the law, in context, did not ban material that “is not the product of an act of actual sexual abuse of a child.” Id. at 547 (emphasis in original). The statute at issue in Stoneman survived only because the link between the prohibited expression — child pornography depicting real sexual acts involving real children — was not a legislative presumption or a statistical probability or an intuitively apparent connection. It was a necessary fact:
“We conclude that ORS 163.680 (1987) prohibited the purchase of certain communicative materials, not in terms of their communicative substance, but in terms of their status as the products of acts that necessarily have harmed the child participants. So understood, it will be seen that the statute punished sexual exploitation by commerce that is a continuation and an integral part of the underlying harmful acts.”
*658Stoneman, 323 Or at 548 (emphasis in original). Every act of producing or obtaining the regulated expressive material contributed to or facilitated actual regulable harm: child abuse.
Under those precepts, the Nyssa ordinance cannot survive as a regulation of harm. We cannot say that every act of nude dancing within four feet of a patron necessarily involves sexual contact or even that it creates a high likelihood of sexual contact. If the Nyssa lawmakers want to regulate sexual contact or attempts to achieve sexual contact, they are free to do so, even if in so doing they incidentally stifle the occasional nude dancer. What they cannot do is regulate sexual expression (by, for example, mandating where it may or may not occur) because they believe, or “find,” that doing so might help regulate sexual contact.
For the foregoing reasons, I dissent.
Armstrong and Brewer, JJ., join in this dissent.State v. Ciancanelli, 181 Or App 1, 45 P3d 451, rev allowed, 335 Or 90 (2002).
Ciancanelli sustained a statute prohibiting live sex shows. This case involves only nude dancing. The Ciancanelli majority opinion did, however, flow necessarily from the predicate conclusion that “public exposure of the genitals” was widely regulated at the time the Oregon Constitution was adopted and therefore could be regulated now. 181 Or App at 16. It is therefore at least arguable that the conclusion regarding nudity was a necessary part of the conclusion regarding live sex shows and for that reason part of the holding.
Of course, one kind of harm that is not subject to regulation is the “harm” of “ ‘causing another person to see’ or ‘to hear’ whatever the lawmakers wish to suppress.” A law addressed at that “harm” is transparently a law addressed at expression per se. State v. Moyle, 299 Or 691, 699, 705 P2d 740 (1985).