dissenting.
I agree that Article I, section 8, of the Oregon Constitution protects a wide variety of expression and communication. See State v. Stoneman, 323 Or 536, 541, 920 P2d 535 (1996) (Article I, section 8, extends protection to written and spoken communication, but also to verbal and nonverbal *325expressions in film, photographs and the like). However, unlike the majority, I cannot conclude that masturbation and sexual intercourse in a “live public show” prohibited by ORS 167.062 is a form of speech that the drafters of the Oregon Constitution sought to protect in Article I, section 8. For the reasons described below, I respectfully dissent.
I commend the majority’s attempt to carefully examine the antecedent legal philosophies and debates that foreshadowed the drafting of Article I, section 8, and the abuse clause in particular. Nevertheless, the majority’s historical research and analysis fails to demonstrate convincingly that the nineteenth-century legal scholars and commentators on which it relies believed that free speech protections, such as Article I, section 8, extended to the conduct prohibited in ORS 167.062.
The majority correctly recognizes that the text of Article I, section 8, consists of two parts, one part “setting out an expansive right” and another part “apparently qualifying that right.” Regarding the first part of the text, the majority seizes upon the term “expression of opinion,” trims away the qualification “of opinion,” and emphasizes throughout the rest of its opinion that the subject matter of Article I, section 8 is “expression.” The majority, however, reads the constitutional text more expansively than I do. The text commands the legislature to respect the free expression of ideas — not conduct — when it forbids laws “restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever.” The separate clauses emphasize that the constitution protects the “expression of opinion” as well as the “right to speak, write, or print.” The text of Article I, section 8 thus protects ideas and thoughts expressed as opinion in speech and print, but contains nothing in the text that explicitly would protect public masturbation and sexual intercourse.
The second part of Article I, section 8, qualifying the free-speech right is the abuse clause: “every person shall be responsible for the abuse of this right.” The majority locates a source for the abuse clause in the writings of William Blackstone, who wrote that individuals are free from prior restraints on publishing, but are responsible for abuse of that *326right in publishing “blasphemous, immoral, treasonable, schismatic, seditious or scandalous libels.” Blackstone suggests that the scope of the abuse clause is potentially quite wide. Not only that, but the majority concedes that many scholars and jurists in the nineteenth century adhered to Blackstone’s understanding of the abuse clause. The majority insists, however, that Blackstone’s followers encountered resistance from “libertarians” who grounded their beliefs in eighteenth-century natural rights philosophy. The majority then claims that it is faced with a “conundrum”: some scholars and commentators followed the restrictive Blackstonian approach to free speech, while others believed that the law protected profanity, blasphemy, pornography, and other forms of both speech and conduct. The libertarians, in other words, adopted a “classically natural rights construction, allowing no punishment of expression qua expression.” 339 Or at 312. The conundrum, the majority claims, is that it cannot figure out which view is reflected in Article I, section 8.1 submit, however, that the alleged conundrum is one of the majority’s own making.
First, Blackstone is considered by many to be a natural-rights thinker of the first rank. See generally Albert W. Alschuler, Rediscovering Blackstone, 145 U Pa L Rev 1 (1996). Thus, the majority’s claim that Blackstone’s allegedly narrow-minded views were inconsistent with those of natural-rights advocates is problematic.1
Second, the very existence of the text in the abuse clause of Article I, section 8, indicates that Blackstone won *327the debate, in effect, because the idea of regulating abusive speech came from Blackstone and followers such as Joseph Story and Thomas Cooley, as the majority acknowledges, rather than from the alleged libertarians the majority claims to have located.
Third, the majority describes the alleged libertarians as discussing the right of free speech in favorable terms, but the majority fails to show that those commentators believed, or would have believed that the protections of free speech, such as Article I, section 8, would extend to conduct such as public masturbation and sexual intercourse.
Finally, and perhaps most importantly, the idea that the Victorian-era drafters and ratifiers of the Oregon Constitution sought to bring public masturbation and sexual intercourse within the purview of constitutional free-speech protection is difficult to comprehend. In my view, the Court of Appeals’ majority opinion in this case amply demonstrated that, at the time the Oregon Constitution was adopted, pornography, nudity, lewd behavior, and “bawdy-houses” were accepted targets of regulation that enjoyed no constitutional protection based on expressive content. State v. Ciancanelli, 181 Or App 1, 9-21, 45 P3d 451 (2002).
Most importantly, it is unnecessary to embark, as the majority does, on a search for the historical truth underlying the framers’ intent, or invoke the free-speech framework announced in Robertson. Article I, section 8, addresses speech, whereas ORS 167.062 addresses conduct, which is a well-accepted dichotomy in constitutional free-speech law. See United States v. O’Brien, 391 US 367, 88 S Ct 1673, 20 L Ed 2d 672 (1968) (draft-card burning not protected speech but subject to regulation as conduct). ORS 167.062 does not on its face, violate Article I, section 8 because the statute is directed at conduct, not at the substance of any opinion or any subject of communication or expression.
It should be beyond dispute that public acts of masturbation and sexual intercourse for profit are not intrinsically expressive or communicative acts. See Arcara v. Cloud Books, Inc., 478 US 697, 705, 106 S Ct 3172, 92 L Ed 2d 568 (1986) (upholding closure of adult bookstore where patrons were engaged in masturbation, oral sex, and prostitution, *328court observed that “the sexual activity carried on in this case manifests absolutely no element of protected expression”). Unfortunately, the majority accepts defendant’s argument that the statute restrains expression protected by Article I, section 8, because it prohibits sexual conduct in a public show. In essence, according to the majority, masturbation and sexual intercourse before an audience are forms of protected expression. In my view, the question is not resolved so simply. I cannot accept the majority’s premise that an apparently limitless variety of conduct can be labeled speech simply because it occurs beneath a proscenium arch or is performed before an audience. Cf. Paris Adult Theatre I v. Slaton, 413 US 49, 67, 93 S Ct 2628, 37 L Ed 2d 446 (1973) (“a ‘live’ performance of a man and a woman locked in a sexual embrace at high noon in Times Square is [not] protected by the Constitution,” even if “they simultaneously engage in a valid political dialogue”).
Sexual conduct on the street, in the park, or the village square has historically been the subject of criminal regulation. ORS 163.465,2 the public indecency statute, is directed at the same conduct prohibited by ORS 167.062. The only difference is the particular venue in which the conduct occurs. Unlike the majority, I cannot conclude that legislative regulation of public sex acts must stop at the supposed theater door. Simply because the acts are part of a supposed “live public show” does not necessarily save the conduct from regulation.
I would hold that ORS 167.062 is not directed to the substance of any opinion or any subject of communication. Rather, the statute is directed at conduct that may under *329some circumstances be expressive. That the conduct may in some circumstances be expressive does not mean the statute is facially overbroad in violation of Article I, section 8. Instead, under specific circumstances where masturbation or sexual intercourse are claimed to have some expressive content, an accused’s right to “direct, manage, finance or present” such expression can be protected through an applied constitutional challenge or by a jury instruction indicating that an accused may be held accountable only for the non-expressive aspects of his or her conduct.
I therefore respectfully dissent.
See, e.g., William Blackstone, Commentaries on the Laws of England 121 (1765):
“The absolute rights of man, considered as a free agent, endowed with discernment to know good from evil, and with power of choosing those measures which appear to him to be most desirable, are usually summed up in one general appellation, and denominated the natural liberty of mankind. This natural liberty consists properly in a power of acting as one thinks fit, without any restraint or control, unless by the law of nature: being a right inherent in us by birth, and one of the gifts of God to man at his creation, when he endued him with the faculty of free-will. But every man, when he enters into society, gives up a part of his natural liberty, as the price of so valuable a purchase; and, in consideration of receiving the advantages of mutual commerce, obliges himself to conform to those laws, which the community has thought proper to establish.”
(Emphasis added.)
ORS 163.465 provides:
“(1) A person commits the crime of public indecency if while in, or in view of, a public place the person performs:
“(a) An act of sexual intercourse;
“(b) An act of deviate sexual intercourse; or
“(c) An act of exposing the genitals of the person with the intent of arousing the sexual desire of the person or another person.
“(2)(a) Public indecency is a Class A misdemeanor.
“(b) Notwithstanding paragraph (a) of this subsection, public indecency is a Class C felony if the person has a prior conviction for public indecency or a crime described in ORS 163.355 to 163.445.”