concurring.
Although I join in the majority's result, I do not agree with the majority’s categorical statement that expressive conduct can be punished through an award of punitive damages, consistent with Article I, section 8, if
“those damages are assessed against the non-protected tor-tious aspect of the conduct and not against its expressive aspect.” 121 Or App at 165.
It is beyond dispute that those who trespass on another’s property and cause damage cannot avoid responsibility for the injury by claiming that the tort was motivated by a desire to speak, or that communication occurred during the trespass. Whether or not trespassing falls within the rubric of an “abuse” of the freedom of speech, for which the entrant is responsible by the terms of Article I, section 8, the victim has a right under Article I, section 10, to initiate proceedings to recover compensation for harm done to the victim’s interest in “property.”1
However, an award of punitive damages in this context raises special problems. Such damages do not compensate for loss but punish the entrant and warn others not to engage in similar conduct. Roshak v. Leathers, 277 Or 207, 211, 560 P2d 275 (1977) says:
“For many years it has been recognized in this state that ‘[t]he generally accepted doctrine [of punitive damages] is that such damages are awarded by way of punishment to the offender and as a warning to others, or, according to some authorities, by way of example.’ Martin v. Cambas, 134 Or 257,261, 293 P 601 (1930).”
*171I question the validity of a “law,” in the form of a punitive damages judgment, that is intended to warn the community against repeating a tort that has occurred in the context of a political demonstration. Standing alone, a judgment for punitive damages does not inform the community whether the jury saw fit to punish all or only some of what may be an array of actions by demonstrators. The pleadings, jury instructions and evidence from a court trial may shed some light on the behavior that the jury sought to punish, but they rarely will guide the behavior of the organizers and participants in future demonstrations that vary in location, format and message. For example, the detail that the court’s instructions in this case correctly distinguished defendants’ unprotected tortious conduct from their protected expressive conduct will probably be lost on demonstrators who, years from now, may wish to express themselves, through conduct, to the full extent allowed by law on electoral politics, labor disputes, the environment or other controversies. To those citizens, the threat of a large punitive damage award could chill their enthusiasm not only for “unprotected tortious conduct,” whatever that might be, but also for constitutionally protected speech.
Similar considerations led the Supreme Court in Wheeler v. Green, 286 Or 99, 119, 593 P2d 777 (1979), to hold:
“We are convinced by these considerations that a proper application of Article I, § 8, prohibits the award of punitive damages in defamation cases, unless some other constitutional provision requires that they be allowed. As we have shown, Article I, § 10, the other provision with a direct application to defamation actions, does not.”
The majority does not address the Supreme Court’s concerns expressed in Wheeler. Instead, it relies on Huffman and Wright Logging Co. v. Wade, 109 Or App 37, 42, 817 P2d 1334 (1991), rev allowed 312 Or 676, in which this court upheld a punitive damage award against Earth First! demonstrators who trespassed on logging equipment. Huffman and Wright Logging distinguished Wheeler as a case “where the allegedly tortious conduct was the content of the speech or the expression of opinion,” not the harm arising from a physical trespass. 109 Or App at 42.
*172I am not convinced that that distinction is meaningful. Whether the underlying tort is defamation or intentional trespass, the threat of a large punitive damage award carries a significant risk that potential defendants who engage in expressive activities will steer clear of lawful public criticism about the plaintiff. That risk is not ameliorated because, after the fact, the complaint for damages will focus on unpermitted trespassing or that a trial court will probably instruct a jury to award punitive damages only for conduct, including expressive conduct, that is not protected. The unacceptable consequence in each case is the same: self-censorship.
However, the Huffman and Wright Logging case is now the law. As the majority correctly notes, it cannot be distinguished from this case. The Supreme Court has granted review of that case but, to date, has not altered it. Huffman and Wright Logging supports the majority’s result.
Accordingly, I concur.
Article I, section 8, of the Oregon Constitution provides:
“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.”
Article I, section 10, provides:
“No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him in his person, property, or reputation.”