dissenting.
I agree with the majority that ORS 163.680 is not a modern version of a well-established and demonstrably preserved historical exception to Article I, section 8.1 also agree that we may not carve out a special exception from Article I, section 8, for expression involving sexual conduct by children. I disagree, however, with the majority’s conclusion that the statute is unconstitutional on its face because it focuses on the substance of the expression. I believe that the statute is a permissible prohibition of the harmful effects that flow from giving value to view children involved in sexually explicit conduct.
As the Supreme Court has stated:
“[Ajrticle I, section 8, prohibits lawmakers from enacting restrictions that focus on the content of speech or writing, either because that content itself is deemed socially undesirable or offensive, or because it is thought to have adverse consequences. * * * [L]aws must focus on proscribing the pursuit or accomplishment of forbidden results rather than on the suppression of speech or writing either as an end in itself or as a means to some other legislative end.” State v. Robertson, 293 Or 402, 416, 649 P2d 569 (1982).
For a law to be valid on the ground that it focuses on the harmful effects of speech, it must “ ‘specify expressly or by clear inference what “serious and imminent” effects it is designed to prevent.’ ” Moser v. Frohnmayer, 315 Or 372, 379, 845 P2d 1284 (1993) (quoting Oregon State Police Assn. v. State of Oregon, 308 Or 531, 541, 783 P2d 7 (1989) (Linde, J., concurring)), cert den 498 US 810 (1990). If the law expressly prohibits expression used to achieve those proscribed effects, the law
*150“ ‘must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such “overbreadth.” ’ ” State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992) (quoting State v. Robertson, supra, 293 Or at 418).
A statute that expressly prohibits expression used to achieve proscribed effects is constitutional unless it is incurably over-broad. State v. Robertson, supra, 293 Or at 417-18.
ORS 163.680 is not directed at the “substance of any ‘opinion’ or [any] ‘subject’ of communication.” State v. Robertson, supra, 293 Or at 412. As the state explains, the statute does not prohibit communication of the idea of sexually explicit conduct by children, such as by written descriptions or depictions, verbal descriptions, animated films or even live films using 18-year-olds who appear to be younger. Rather, the statute is directed against causing a harm that may be forbidden: the abuse and exploitation of real children.1 Although the majority is correct that the statute does not explicitly include this effect as an element of the crime, I do not believe that its failure to do so is fatal.
The majority relies heavily on City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), to support its conclusion that, absent an express statutory recitation of specific targeted effects, the statute cannot be read as focusing on the prevention of those effects. I believe that reliance is misplaced. In Tidyman, the city argued that the legislative findings prefacing the ordinance, which restricted the location of adult bookstores, identified the harmful effects that were the focus of the ordinance. The court held that the city’s “harmful effects” argument failed because “the operative text of the ordinance does not specify adverse effects that constitute the ‘nuisance’ attributable to the sale of ‘adult’ materials.”2 306 Or at 185. (Emphasis supplied.) It further *151held that a one-time legislative determination, that certain undesirable effects will flow only from the marketing of adult materials within the proscribed area, could not justify a restriction of such marketing by an ordinance that described the materials instead of the effects. 306 Or at 185-86.
Subsequent to Tidyman, however, the Supreme Court recognized that a statute focusing on the harmful effects of speech need not always explicitly identify the proscribed harm along with the expression that is thought to threaten the harm. In Moser v. Frohnmayer, supra, the court made it clear that a law that focuses on the harmful effects of speech is valid if it “specif[ies] expressly or by clear inference” the effects it is designed to prevent. 315 Or at 379 (emphasis supplied); see also Moser v. Frohnmayer, supra, 315 Or at 384 (Graber, J., concurring in part and specially concurring in part) (laws of this kind must “expressly or by clear implication” identify the harm sought to be eliminated). In State v. Miller, 318 Or 480, 489-90, 817 P2d 454 (1994), its most recent opinion dealing with this issue, the court concluded that the sidewalk vending ordinances at issue there were directed at proscribing forbidden effects, not at suppressing speech. It reached that conclusion, however, by considering the results that the city argued it was prohibiting and the goals that the city claimed it was seeking to accomplish. 318 Or at 483, 489. The court thus looked beyond the actual text of those ordinances, which included, at most, only one of those forbidden results and none of the professed goals.
More importantly for the statute at issue here, a clear statutory reference to the targeted effects of expression may be of less import when the statute is designed to protect children. In Tidyman, the court held that the ordinance restricting the location of adult bookstores was unconstitutional because it did not specify the “supposed” harmful effects that it was allegedly designed to address. 306 Or at 186. In a separate opinion, Justice Gillette agreed with the majority that an ordinance aimed by its terms at protected activity must have a statement of the effects sought to be limited or eliminated. 306 Or at 192 (Gillette, J., concurring in part and specially concurring in part). However, he viewed the portion of the ordinance that restricted adult businesses near schools to be a regulation designed to protect children *152and, therefore, believed that it stood on a different footing than the rest of the ordinance. According to Justice Gillette,
“[t]he right of the city, a county or the state to enact legislation to protect the welfare of children approaches the plenary. If this ordinance dealt with that subject only, it might well pass constitutional muster.”3 306 Or at 192.
I do not read that language to mean that the state may infringe on an individual’s constitutional rights whenever its motive is to protect children. However, I believe that it does mean that when the protection of children is clearly the purpose of a regulation, the harmful effects sought to be eliminated may be inferred.
In my view, before we can summarily dispose of a statute that is aimed at secondary effects of expression, but does not identify those effects as elements of the crime, we must first inquire as to the purpose of the statute. The statute at issue here, ORS 163.680, is part of a series of criminal statutes dealing with visual recordings of sexual conduct involving children. ORS 163.665 to ORS 163.695. The foundation of those statutes is ORS 163.670, which prohibits using a child less than 18 years of age in a display of sexually explicit conduct for purposes of observation or recordation.4 Without question, that statute is designed to protect the welfare of children. So, too, then, are the statutes that are based upon it, including ORS 163.680.
In view of the fact that ORS 163.680 is designed to protect children, I believe that the statute properly focuses on preventing a clearly inferable harmful effect of expression, in accordance with the standard articulated in Moser and the analysis of Justice Gillette. Further, unlike the ordinance at issue in Tidyman, ORS 163.680 is not “using apprehension of unproven effects as a cover for suppression of undesired expression.” 306 Or at 188. The abuse and exploitation of *153children is far from speculative; it necessarily and unavoidably accompaniés the creation and proliferation of child pornography. In my view, that is the type of harmful effect envisioned by the Supreme Court when it held that a statute focusing on secondary effects of expression may pass constitutional muster if the proscribed harm is made part of the statute “by clear inference.”
In summary, I believe that the statute’s failure to specify expressly the serious and imminent harms that it seeks to ameliorate is not fatal, and that the majority’s strict adherence to the language of Tidyman to hold otherwise is unwarranted. Moreover, in contrast to the “supposed” adverse effects that may flow from the operation of an adult bookstore, the harms sought to be prevented here will always exist when value is given to view children involved in sexually explicit conduct;5 thus, the statute is not overbroad. For all of the above reasons, I respectfully dissent.
Rossman and De Muniz, JJ., join in this dissent.Defendant argues that the statute is not by its terms limited to materials that depict real children and, thus, “extends to paintings, drawings or renderings from imagination rather than life. ’ ’ I disagree. “Child,” as used in the statute, is defined as “aperson who is less than 18 years of age.” ORS 163.665(1). (Emphasis supplied.)
In a similar vein, the court also noted:
“It is not a technical detail of drafting that such a restriction [on free expression] must specify the proscribed harm and not only the expression that is thought to threaten the harm.” City of Portland v. Tidyman, supra, 306 Or at 189.
Because the city did not request that the provisions relating to schools be treated as severable, Justice Gillette agreed that the entire ordinance should be declared unconstitutional. City of Portland v. Tidyman, supra, 306 Or at 192.
We have previously held that the behavior proscribed in ORS 163.670 is not expressive or communicative in nature and, therefore, does not fall within the protective parameters of Article I, section 8. State v. Meyer, 120 Or App 319, 328 n 13, 852 P2d 879 (1993).
The legislature created limited statutory defenses to ORS 163.680 for bona fide law enforcement activities and bona fide educational activities. Former ORS 163.685.