dissenting.
I respectfully dissent.
The issue in this case is whether it is permissible under Article I, section 8, of the Oregon Constitution to allow an award of punitive damages for tortious conduct and the amount of those punitive damages to be determined at least in part because of significant expressive conduct and political speech accompanying or intertwined with the tortious conduct. I would hold that it is not.
Six individual defendants were held liable by a jury for compensatory (actual) and punitive damages in an action for civil trespass to personal property. Defendants conceded their liability for trespass and for compensatory damages, but argued that Article I, sections 81 and 26,2 of the Oregon Constitution and the First Amendment to the Constitution of the United States3 preclude an award of punitive damages for their expressive conduct and political speech. The Court of Appeals affirmed the judgment of punitive damages for plaintiff. Huffman and Wright Logging Co. v. Wade, 109 Or App 37, 817 P2d 1334 (1991).
I recite the undisputed facts from the decision of the Court of Appeals:
“Plaintiff is a private logging corporation. Defendants are members of the environmental group, ‘Earth First!.’ In July, 1987, defendants participated in a demonstration on a U.S.
*463Forest Service logging road in the North Kalmiopsis area of the Siskiyou National Forest to protest the Forest Service’s policies regarding the area. During the demonstration, five of the defendants climbed on and chained themselves to plaintiffs logging equipment. The sixth defendant climbed to the top of a yarder and hung a large banner that read, ‘FROM HERITAGE TO SAWDUST - EARTH FIRST!.’ It depicted two trees being converted into sawdust. Defendants did not have permission to be on plaintiffs property. WTiile they were attached to the equipment, they made statements, sang songs and chanted slogans regarding their beliefs about the need for greater environmental protection of the North Kalmiopsis area.
“As a result of defendants’ actions, part of plaintiffs logging operation was shut down for most of the day. Defendants testified that their actions were justified, because ‘[wjithout the nonviolent civil disobedience element of the demonstration, the event would not have been considered “newsworthy” by the press, and so likely would not have brought the issue to the attention of the public or of elected or appointed officials.’ The demonstration was widely publicized.
“Later the same day, the Curry County Sheriffs Department removed defendants from the equipment and arrested them. Defendants peaceably submitted to arrest. They were charged with and convicted of third degree criminal mischief, ORS 164.345,[4] and served two weeks in the Curry County Jail. They also were each ordered to pay a $250 fine and to make full restitution to the sheriffs department and to plaintiff for its down time.” Huffman and Wright Logging Co. v. Wade, supra, 109 Or App at 39-40.
Plaintiff then filed this civil action against defendants. The complaint alleged that defendants committed trespass by intentionally and wrongfully interfering with and depriving plaintiff of the use of its logging equipment, and asserting claims for $7,818.26 in compensatory damages for *464lost revenues and for $50,000 in punitive damages. Defendants conceded their liability for compensatory damages, although they disputed the amount, and the case went to trial on that issue and on the issue of punitive damages. As an affirmative defense to plaintiffs claim for punitive damages, defendants asserted that Article I, sections 8 and 26, of the Oregon Constitution and the First Amendment to the federal constitution prohibited the award of punitive damages for their expressive conduct and political speech. The jury returned a verdict of $5,717.34 in compensatory damages and $25,000 in punitive damages.
At the appropriate times, defendants moved for partial summary judgment, directed verdict, and judgment notwithstanding the verdict (JNOV) on the punitive damages claim, asserting at each point, based on the undisputed facts, that punitive damages may not constitutionally be imposed for defendants’ expressive conduct and political speech. The trial court denied each motion, and defendants appealed.
The Court of Appeals affirmed the judgment of the circuit court, having considered both the constitutional claims and also defendants’ assertion that certain evidence and argument relating to defendants’ political views should have been excluded as irrelevant or unduly prejudicial. Huffman and Wright Logging Co. v. Wade, supra, 109 Or App at 42-45. Defendants petitioned for review only on the question whether the award of punitive damages was constitutionally permissible.
This court’s prior cases provide significant guidance in analyzing defendants’ contention based on Article I, section 8, of the Oregon Constitution. Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979), a defamation action, was the first case in which this court addressed the availability of punitive damages for a speech-related tort. In Wheeler, the plaintiff recovered both compensatory and punitive damages at trial. On review, this court struck the punitive damages award, holding that a party injured by defamatory statements can recover only compensatory damages. 286 Or at 119.
Wheeler fashioned its holding from an examination of the constitutional right under Article I, section 8, of the Oregon Constitution to speak freely, the constitutional right *465under Article I, section 10, to a remedy for an injury to reputation,5 and the constitutional acknowledgement in Article I, section 8, that persons shall be responsible for an abuse of the right of free speech. Id. at 118-19. This court reasoned that, although defamation constitutes an “abuse” of the right to speak freely, responsibility for such abuse is limited by Article I, section 8, to civil liability for compensatory damages caused by the abuse. Id. at 118. In so doing, this court stated that it was convinced by two considerations: (1) the threat of large punitive damage recoveries for defamatory statements could inhibit even non-defamatory protected speech; and (2) punitive damages to deter and punish are not “necessary to compensate the plaintiff for injury to reputation” under Article I, section 10, which expressly protects against injury to reputation. Id. at 118-19.
The next case in which this court confronted the question of the viability of punitive damages under Article I, section 8, was Hall v. The May Dept. Stores, 292 Or 131, 637 P2d 126 (1981). In Hall, the plaintiff received compensatory and punitive damages for the defendant’s intentional infliction of emotional distress caused by outrageous conduct. The conduct at issue involved expression, consisting of threats and accusations by an employer’s security guard. The security guard accused the plaintiff of stealing from the cash register. He then threatened her with prosecution. This court rejected the jury’s award of punitive damages, relying on Wheeler v. Green, supra, for its holding:
“Wheeler v. Green found the proper accommodation in interpreting the responsibility for abuse which section 8 excludes from freedom of speech to be responsibility to an injured party for the ‘injury done him in his person, property, or reputation’ stated in section 10. It does not extend beyond compensation for the injury to punishment or deterrence.
*466“* * * ipke principie 0f the holding, as stated above, was that punitive damages by definition go beyond whatever financial recompense is proper to compensate a plaintiff for the injury suffered by the plaintiff personally. Where such damages beyond any actual injury are allowable, the plaintiff collects them as a form of public punishment, not by virtue of a personal entitlement to compensation. When the cause of defendant’s liability is his ‘abuse’ of speech and expression, as in the case of defamation, Wheeler v. Green holds that the ‘responsibility for the abuse’ is confined to civil liability for compensation only. Here the injury was to plaintiffs person rather than her reputation, but as long as it resulted from an ‘abuse’ of speech only, the principle is the same.” Hall v. The May Dept. Stores, supra, 292 Or at 145-46.
In Hall, this court did not define what it meant by an “ ‘abuse’ of speech and expression” for which punitive damages could not be awarded, but recognized that the speech-based tort of defamation discussed in Wheeler was an example. This court considered the distinction between the tort of defamation and the tort of intentional infliction of emotional distress for purposes of the limitation on responsibility for an abuse of speech and expression that was fashioned in Wheeler for defamation fictions:
“Plaintiff seeks to distinguish the rule of Wheeler v. Green because ‘speech is the gravamen of the tort of defamation,’ whereas, according to plaintiffs argument, Mr. Rummell’s speech in this case was only incidental to the tort of intentional infliction of severe emotional distress. The distinction would have weight if the tort in this case rested on any conduct other than Rummell’s accusations to plaintiff in the course of his interrogation. Of course infliction of emotional distress, unlike defamation, can be committed by other means than expression or communication. See, e.g., Brewer v. Erwin, [287 Or 435, 600 P2d 398 (1979)]. But in this case we have found no other conduct that could qualify as this tort.
“* * * To put the point in a nutshell: If Rummell had called plaintiff a thief in the presence of the third person at the interrogation, the rule of Wheeler v. Green would limit her recovery for slander to actual damages and exclude punitive damages. If he had broadcast his accusation throughout the store or published it in print, her actual damages might be greater, but punitive damages would be *467excluded. The same distinction between ‘remedy’ and ‘punishment’ for speech and expression of opinion excludes punitive damages when the accusation was made to her face and the injury for which she seeks a remedy is emotional distress.” Hall v. The May Dept. Stores, supra, 292 Or at 146-47.
To summarize, Wheeler and Hall held that punitive damages cannot be awarded in cases in which the right of free speech is abused by tortious activity where that tortious activity itself is committed by speech. This court had not yet confronted the case in which speech was accompanied by or communicated through other tortious activity where the elements of the underlying tort are not based on speech. This court, however, had recognized in Hall that punitive damages might be available if the underlying tort could be established by “conduct other than” the speech, where the accompanying speech was only “incidental.” Hall v. The May Dept. Stores, supra, 292 Or at 147.6
In Lewis v. Oregon Beauty Supply Co., 302 Or 616, 733 P2d 430 (1987), this court permitted an award of punitive damages in an action for intentional interference with a business relationship. In Lewis, the plaintiff had refused to date Scott, a warehouse supervisor, and:
“Scott reacted in a hostile manner. He exhibited his hostility towards plaintiff in the workplace. He ‘glared’ at her from outside her office and told other employes that she had given him a venereal disease. He swore at her, called her a whore, searched her personal belongings and threw things at her. He refused to cooperate with her when she required information necessary to function in her job and would ‘fling’ merchandise and paperwork into her office. On one occasion he intentionally slammed a door which hit plaintiff. He also told other employes that plaintiff would not be working [there] much longer.” Id. at 618.
The plaintiff ultimately left employment at the business. The activity giving rise to the tort claim of intentional interference with business relationship thus included several acts with varying mixes of conduct, speech, and defamatory *468speech. This court upheld the award of punitive damages because some of the acts constituted “noncommunicative conduct” or “non-expressive conduct,” and those acts provided a basis for which punitive damages could be awarded.
“Scott did not request an instruction that would have required the jury to separate expression from noncom-municative conduct in its determination of punitive damages. He considered all his acts privileged expression exempt from a punitive damages award. It is obvious, however, that some of his acts, such as searching plaintiffs property and intentionally slamming the door into her, are non-expressive conduct for which punitive damages could properly be awarded. Because Scott failed to ask for a punitive damages instruction limiting the jury’s consideration to non-expressive conduct, we uphold the punitive damages award. ’ ’ Lewis v. Oregon Beauty Supply Co., supra, 302 Or at 629.
What is significant about the discussion in Lewis is that the court was considering a number of distinct incidents and that, in that context, the court held that some of those distinct acts (i.e., those that are non-expressive conduct) could be the basis for an award of punitive damages. This is consistent with this court’s suggestion in Hall v. The May Dept. Stores, quoted supra, 317 Or at 467, that punitive damages could be awarded for conduct where the communicative component of the conduct was incidental. This court did not, and has not, addressed the question whether punitive damages could be awarded for the conduct component of an overall activity that is intertwined with significant communicative components. The analysis in Lewis contemplated considering a non- expressive act separately from expressive acts, but did not contemplate considering the conduct component of an expressive or communicative act separately from the expressive component of the same act.
This case thus calls on this court to consider, for the first time, whether to apply the punitive damages analysis to a case in which the underlying tort itself is not speech-based, but the communicative component of the activity is significant rather than merely incidental.7 One important part of *469the analysis articulated by this court in Wheeler, Hall, and Lewis is that punitive damages cannot be awarded for a speech-based tort, such as defamation or intentional infliction of emotional distress, that resulted from speech only. The converse is not true, however, that punitive damages can always be awarded for torts that are not speech-based, such as trespass to personal property.
Defendants do not dispute that civil liability for the tort of trespass to personal property, and even criminal liability for trespass, were appropriate in this case. With respect to the tort of trespass to personal property, in contrast to speech-based torts, determining whether the tort has been committed does not involve considering the communicative components of the conduct.8
Determining whether punitive damages may be awarded for the tort of trespass to personal property, however, does involve considerations separate and apart from the elements of the tort where the tort is not itself speech based. Therefore, where the tort is not speech-based, but is committed in conjunction with, accompanied by, or intertwined with a significant communicative component, a second level of analysis is necessary to determine whether an award of punitive damages violates the free speech rights guaranteed by Article I, section 8. That is, the factors considered by the trier of fact to determine whether to award punitive damages and, if so, the amount of punitive damages, must be evaluated to determine whether they are speech-based.
Put in stark terms, a punitive damages standard that explicitly gives the jury discretion to award punitive damages for a tort that is committed in conjunction with or accompanied by or intertwined with a significant communicative component only if the jury determines that it is in society’s best interest to punish and deter the defendant’s particular political message accompanying the conduct would imper-missibly punish and seek to deter speech. Stated differently, *470the punitive damages standard must be evaluated separately where the tort itself is established by elements other than speech, but where speech is a significant component of the tort.
The instruction on punitive damages that was given by the trial court in this case was based on Uniform Civil Jury Instruction (UCJI) 35.01. The jury was instructed:
“Punitive damages may be awarded to the plaintiff in addition to general damages to punish the wrongdoer and to discourage the defendant or others from engaging in wanton misconduct.
“In considering the punitive damages, you must first determine whether the defendant was guilty of wanton misconduct that caused damage to the plaintiff. Wanton misconduct is conduct amounting to a particularly aggravated, deliberate disregard of the rights of others.
“If you decide this issue against the defendants, you may award punitive damages, although you are not required to do so because punitive damages are discretionary. In the exercise of that discretion, you may consider the importance to society in deterring similar misconduct in the future.
“If you decide to award punitive damages, you may properly consider the following items in * * * fixing the amount. One, the character of the defendants’ conduct; two, the defendants’ motives; three, the sum of money that would be required to discourage the defendants and others from engaging [in] such conduct in the future; and four, the income and assets of the defendants.”
This punitive damages standard invited the jury to consider the communicative components (i.e., the “expressive” political speech) of defendants’ activity in at least five ways: (1) in determining whether defendants’ misconduct was “wanton,” i.e., whether defendants’ conduct was “a particularly aggravated, deliberate disregard of the rights of others,” the jury was invited to go beyond the conduct and consider whether defendants’ expressive political speech made the accompanying conduct bad; (2) in determining the “importance to society in deterring similar misconduct,” the jury was invited to determine whether the message that defendants were trying to communicate was important or whether it should be deterred and silenced; (3) in determining the “character of defendants’ conduct,” the jury was invited *471to look behind the conduct to the content, motivation, or legitimacy of defendants’ message and perhaps even to the defendants’ sincerity in pursuing this particular means of communicating; (4) in determining “defendants’ motive,” the jury was invited to evaluate why defendants did what they did, i.e., to evaluate the message accompanying or communicated through their conduct; and (5) in determining the “sum of money that would be required to discourage defendants and others from engaging in such conduct in the future,” the jury was invited to evaluate the intensity and sincerity of defendants’ beliefs that led them to communicate those beliefs through this particular means.
The resulting possibility that speech will be punished due to the punitive damages standard is of constitutional magnitude when speech is a significant component or is an integral part of the overall tortious activity for which punitive damages are sought.
The existence of an incidental communicative component, however, is not enough to raise the case to an issue of constitutional magnitude, for conduct routinely has some expressive content. Even the conduct described as “non-expressive” or “noncommunicative” in' Lewis v. Oregon Beauty Supply Co., supra, had incidental expressive content: Searching the plaintiffs purse can express mistrust or disdain for her privacy; slamming a door into the plaintiff can communicate hatred, anger or frustration. Indeed, by their very impropriety, these acts may underscore their underlying expressive content. They may communicate not only the actor’s feelings {e.g., disdain or anger), but also the actor’s opinions {e.g., “I do not think that you can be trusted”). Yet, this court in Lewis characterized that conduct as “non-expressive” for purposes of determining whether punitive damages can be awarded because the communicative element of the overall activity was incidental. That characterization was valid because what was significant about the activity was the act and not the incidental communicative component.
When, however, the tortious conduct is committed in conjunction with or accompanied by or is intertwined with speech or expressive conduct, i.e., when both the tortious conduct and the speech are significant elements of the overall activity, or when the tortious conduct is itself expressive, *472then the communicative speech component is no longer merely incidental and a punitive damages standard that allows the jury to award punitive damages or to determine the amount of punitive damages for that communicative component is constitutionally impermissible under Article I, section 8, of the Oregon Constitution. If conduct is to be considered apart from the significant communicative component, the communicative component must not be allowed to be a factor in evaluating the conduct in determining whether to award punitive damages or to determine the amount of punitive damages.
This analysis is consistent with the critical thread that binds together this court’s prior decisions in Wheeler, Hall, and Lewis, that punitive damages may not be imposed for tortious conduct if speech is a significant factor in determining whether to award punitive damages for that tortious conduct. This is true where speech is an element of the definition of the underlying tort; it is no less true when speech is part of the analysis of punitive damages augmenting liability for a tort that is not speech-based.
This analysis is also consistent with this court’s Article I, section 8, jurisprudence in cases that did not address punitive damages. Where the focus of a sanction is on the result of the defendant’s speech-motivated conduct without regard for the message, such as in determining liability for the underlying trespass to personal property, Article I, section 8, is not implicated. When, however, the focus of a sanction is on significant expression or speech used to achieve those results or on the content of the expression or speech itself, such as in determining punitive damages liability or the amount of punitive damages where speech is a significant component of the underlying activity, Article I, section 8, is violated. See State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992) (discussing Article I, section 8, analysis); State v. Robertson, 293 Or 402, 649 P2d 569 (1982) (same).9
*473I conclude that the punitive damages instruction in this case,10 when applied to defendants’ tortious conduct where the tort itself was not speech-based but where the communicative component was a significant part of defendants’ overall activity, impermissibly allowed the jury to consider the significant communicative components of defendants’ tortious activity. The punitive damages standard allowed the jury to decline to award punitive damages for certain conduct, but to award punitive damages for the same conduct because of the content of defendants’ expressive conduct and political speech. More important than the consideration referred to in Wheeler that such an approach might inhibit protected speech in other cases, see supra, 317 Or at 465, however, is the more basic point that the punitive damages instruction in this case allowed punitive damages to be awarded and the amount of those punitive damages to be determined, at least in part because of defendants’ expressive conduct and political speech. Allowing the message or the significant expressive conduct or political speech to influence the trier of fact on the issue of whether to award punitive damages and the amount of such damages is impermissible under Article I, section 8, of the Oregon Constitution.
I do not suggest that any criminal or tortious activity is protected because it communicates or is accompanied by a message.11 By preventing either the award or the *474determination of the amount of punitive damages for tortious conduct to be influenced by the accompanying or intertwined significant speech or conduct with a significant communicative component, I do not sanction or encourage the tortious conduct. Rather, I would hold that the message — the significant expressive conduct and political speech — cannot be the basis for determining whether the tortious conduct is subject to more severe sanctions where the message is a significant component of the overall activity. If the tortious conduct itself is truly being deterred or punished, the non-incidental message accompanying the conduct cannot form the basis for distinguishing some conduct from other conduct. This approach gives meaning to the constitutional protection of the accompanying speech.
A defendant cannot avoid punitive damages by cloaking, any activity in speech garb; the communicative component must be a significant part of the overall activity. Nor can a defendant avoid liability for any activity done as a means to communicate a message; liability standards that do not allow the message to be considered would not be affected by my approach. Indeed, the compensatory and criminal liability imposed for defendants’ conduct were not even challenged by defendants. The trial judge found that there was no property damage or violence. Defendants’ tortious conduct in this case consisted of climbing on plaintiffs logging equipment, chaining themselves to the equipment, and hanging a banner from one piece of logging equipment that read “FROM HERITAGE TO SAWDUST - EARTH FIRST!” Defendants assert that this “nonviolent civil disobedience” both was tied to expression and was itself expressive. I agree that both the conduct and the accompanying speech were significant elements of the overall demonstration activity protesting the government’s logging practices. It was error for the trial court to instruct the jury that defendants’ significant expressive conduct and political speech that accompanied the tor-tious conduct may be considered in determining whether to award punitive damages and for determining the amount of punitive damages in this case.
I would hold, therefore, that it is constitutionally impermissible under Article I, section 8, of the Oregon Constitution to allow an award of punitive damages for *475defendants’ tortious conduct and the amount of those punitive damages to be determined, at least in part, because of the significant expressive conduct and political speech accompanying or intertwined with that conduct. This disposition of that issue under Article I, section 8, of the Oregon Constitution would render unnecessary any consideration of defendants’ claims under Article I, section 26, of the Oregon Constitution and under the First Amendment to the federal constitution. This disposition also would render unnecessary any consideration of the assertion by amicus curiae that the trial court erred in admitting certain background evidence related to defendants’ political ties and motives considered by the jury in its deliberations on punitive damages.
I would reverse the decision of the Court of Appeals and the judgment of the circuit court as to the award of punitive damages. I, therefore, respectfully dissent.
Van Hoomissen, J., joins in this dissenting opinion.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 26, of the Oregon Constitution provides:
“No law shall be passed restraining any of the inhabitants of the State from assembling together in a peaceable manner to consult for their common good; nor from instructing their Representatives; nor from applying to the Legislature for redress of greviances [sic].”
The First Amendment to the Constitution of the United States provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
ORS 164.345 provides:
“(1) Aperson commits the crime of criminal mischief in the third degree if, with intent to cause substantial inconvenience to the owner or to another person, and having no right to do so nor reasonable ground to believe that the person has such right, the person tampers or interferes with property of another.
“(2) Criminal mischief in the third degree is a Class C misdemeanor.”
Article I, section 10, of the Oregon Constitution, which guarantees a remedy for injury done to reputation (as in the case of defamation), also guarantees a remedy for injury to property:
“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.”
See also Hall v. The May Dept. Stores, 292 Or 131, 150-51, 637 P2d 126 (1981) (Lent, J., concurring in part; dissenting in part) (punitive damages should be available where the message is incidental to a verbal communication that seeks to intimidate or inflict emotional distress).
The analysis of this opinion does not prevent liability where the message is not a significant part of the overall activity or is not used to determine whether punitive damages are awarded.
In order to establish the tort of trespass to personal property involved in this case, the jury was instructed that it must find an ‘ ‘intentional, physical intrusion by a defendant on the plaintiffs property, in this case, the logging equipment!,] which causes damage to the plaintiff and which has not been authorized or consented to by the plaintiff,” a determination that does not inquire into the content of the expressive political speech involved in the episode.
This approach is also consistent with the more in-depth statement of the approach offered in In re Fadeley, 310 Or 548, 575-76, 802 P2d 31 (1990) (Únis, J., concurring in part, dissenting in part), cited with approval in Moser v. Frohnmayer, 315 Or 372, 375 n 1, 845 P2d 1284 (1993). Under the four steps in that approach, (1) the punitive damages standard used by the trier of fact in this case on its face allowed sanctions to be directed at or determined by speech; (2) the restraint of punitive damages was not “well established when the first American guarantees of *473freedom of speech were adopted” (it is this factor that allows civil sanctions for speech-based torts, an issue not explicitly addressed by the cases involved in the analysis in this case); (3) the punitive damages standard is not narrowly enough drawn to focus only on the conduct accompanying the speech; and (4) the speech involved is not “incompatible with the performance of’ a special role or function (to the contrary, the speech is political in nature, the type of speech at the core of the constitutional protections).
In contrast to focusing on defendants’ motive or purpose for their actions, focusing on defendants’ attitude upon learning of a hazard directs attention toward the hazard rather than toward the expression. See State ex rel Young v. Crookham, 290 Or 61, 72, 618 P2d 1268 (1980) (quoted with approval in Oberg v. Honda Motor Co., 316 Or 263, 283, 851 P2d 1084 (1993), and in Honeywell v. Sterling Furniture Co., 310 Or 206, 211, 797 P2d 1019 (1990)); UCJI 35.03 (incorporating the language regarding attitude upon learning of a hazard rather than the language regarding motive for punitive damages in product liability cases).
Plaintiff cites the example of a politically-motivated assassination having elements of communication, as it no doubt does. The fact that conduct communicates does not immunize the actor from liability, but the message cannot be the basis for the liability where the message is a significant component of the overall activity.