dissenting.
I concur with the dissent of Deits, J., that ORS 163.680 is a constitutionally permissible prohibition of the harmful effects that arise from the dissemination of child pornography. However, in contrast to that dissent’s position, I believe that ORS 163.680(1) (renumbered ORS 163.680(2) in 1991; amended by Or Laws 1991, ch 664, § 8) also is a modern version of a well-established and demonstrably preserved historical exception to Article I, section 8. I add the following comments in support of Judge Deits’s opinion that the statute focuses on harmful effects, rather than on the content of expression.
The proper analysis begins with the language of the statute. ORS 163.680(1) makes it
“unlawful for any person to pay or give anything of value to obtain or view a photograph, motion picture, videotape or other visual reproduction of sexually explicit conduct by a child under 18 years of age.”
*154“Sexually explicit conduct,” as used in ORS 163.680(1), means:
“[A]ctual or simulated:
“(a) Sexual intercourse or deviant sexual intercourse;
“(b) Genital-genital, oral-genital, anal-genital or oral-anal contact, whether between persons of the same or opposite sex or between humans and animals;
“(c) Penetration of the vagina or rectum by any object;
“(d) Masturbation;
“(e) Sadistic or masochistic abuse; or
“(f) Lewd exhibition of the genitals or anus.” ORS 163.665 (amended by Or Laws 1991, ch 664, § 4).
The majority says about the statute:
“The state also suggests that the statute focuses on the harmful effects of child abuse, because by depleting the market for such materials, and thus removing the incentive to produce child pornography, the statute will have the effect of lessening child abuse. However, there is nothing in the text of the statute to suggest this inference.” 132 Or App at 144. (Emphasis supplied.)
The majority’s assertion is myopic. In the Final Report of the United States Attorney General’s Commission on Pornography,1 the commission discussed the visual recording of sexual conduct by children:
“Thus, the necessary focus of an inquiry into child pornography must be on the process by which children, from as young as one week up to the age of majority, are induced to engage in sexual activity of one sort or another, and the process by which children are photographed while engaging in that activity. The inevitably permanent record of that sexual activity created by a photograph is rather plainly a harm to the children photographed. But even if the photograph were never again seen, the very activity involved in creating the photograph is itself an act of sexual exploitation *155of children, and thus the issues related to the sexual abuse of children and those related to child pornography are inextricably linked. Child pornography necessarily includes the sexual abuse of a real child, and there can be no understanding of the special problem of child pornography until there is understanding of the special way in which child pornography is child abuse.” United States Department of Justice Attorney General’s Commission on Pornography, Final Report 405-06 (July 1986). (Footnote omitted; emphasis in original.)
Unlike obscenity laws, which focus on the value of the expression in question, ORS 163.280(1) is concerned with protecting children by forbidding the use for pecuniary benefit of visual recordings that depict the sexual abuse of children. The vivid word pictures painted by the language of ORS 163.680(1) are graphic illustrations of the exploitation of children. The genesis of the dissemination of any expressive material referred to in ORS 163.680(1) necessarily involves the depiction of actual child abuse or simulated child abuse by children. To meet the definition of the statute, the material must record actual or simulated sexual intercourse, deviant sexual intercourse, genital contact between persons of the same or opposite sex or between humans and animals, or other related conduct by children. The very nature of those acts means that the child participants are being sexually abused by those who procure their performances.
An analogy to the harm at which ORS 163.680(1) is aimed can be drawn to the propagation of a video recording that records an actual rape or murder, when the crime is committed for the purposes of recordation and distribution for pecuniary benefit. Without hesitation, we would hold that any prohibition of such conduct focuses on the crime that is being committed, not on the means of expression that records the conduct. The focus of ORS 163.680(1) is further defined by what it does not proscribe. For instance, the statute does not make unlawful all kinds of child pornography. It permits the dissemination of drawings, written descriptions or computer portrayals of sexually explicit conduct by children. Such depictions do not directly implicate the welfare of real children as does ORS 163.680(1), which is aimed at protecting children from being used in actual or simulated live sex acts. Judge Deits’s assertion that it is clear from the language of *156the statute that the prohibitions of ORS 163.280(1) are intended to prevent harmful effects on children is correct.
The majority also holds that ORS 163.680(1) does not constitute a historical exception to Article I, section 8. When considering this issue, it is important to be mindful of the distinction between obscenity in general and pornography depicting children engaged in live and simulated sex acts. In State v. Henry, 302 Or 510, 732 P2d 9 (1987), the Supreme Court held that, in general, obscene expression does not fall into any historical exception to section 8. However, it cautioned:
“We also do not rule out regulation, enforced by criminal prosecution, directed against conduct of producers or participants in the production of sexually explicit material, nor reasonable time, place and manner regulations of the nuisance aspect of such material or laws to protect the unwilling viewer or children. Again, no such issue is before us.” 302 Or at 525.
Because the kind of child pornography addressed by ORS 163.680(1) involves the sexual exploitation and abuse of children, it does not necessarily follow from the fact that obscenity in general is protected expression under section 8 that the constitutional drafters also considered child pornography of that kind to be protected expression. In Henry, the court said that “restrictions on sexually explicit and obscene expression between adults were not well established at the time of the adoption of Article I, section 8 * * *.” 302 Or at 523. (Emphasis supplied.) In contrast, the pioneers who came to Oregon were concerned about expressive material that impacted the behavior of minors. Before statehood, the Oregon territorial legislature made it an offense to “import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or other thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth * * Statutes of Oregon 1854, Crimes and Punishments, chXI, § 10, pp 210-11. (Emphasis supplied.) It appears that the territorial legislature borrowed its statute almost word for word from an 1835 Massachusetts statute. Three years later, Article I, section 8, was adopted as part of Oregon’s original constitution.
*157The distinction between how child pornography depicting live or simulated sex acts and obscenity in general would have been viewed by the drafters of section 8 may best be understood by reviewing the history of government regulation of obscenity and then comparing that regulation to the historic regulation of expression impacting the health and morals of children.
“The development of modern obscenity law as it is recognized in the United States began in England. The court of Star Chamber reviewed books and theater during the reign of King Henry VIII and continued until 1640. Restrictions placed on materials were still based largely on religious and political grounds. The focus began to change in 1663 when the British courts were confronted with the situation which arose as the case King v. Sedley. This case is widely regarded as the first reported obscenity case. Sir Charles Sedley, in an intoxicated state, stood on a tavern balcony, removed his clothes, and delivered a series of profane remarks. At the conclusion of his tirade, he poured bottles filled with urine on the crowd below. Sedley was convicted, fined, and incarcerated for a week. Sedley’s case was thus the first involving an offense to public decency as opposed to one against religion or government. One hundred and fifty years later, it would also be relied on as precedent by the first American court to find obscenity indictable at common law.
“Public concern over obscenity increased in 17th century England, and in 1708 James Read was indicted for publishing the book The Fifteen Plagues of a Maidenhead. The Queens Bench Court dismissed the indictment against Read for obscene libel in Queen v. Read. The court found that Read’s work was not a reflection on the government, the church, or any individual, and it rejected the idea that libel included obscenity. Another case of obscene libel arose in 1727 when Edmund [Curl] was convicted for publishing Venus in the Cloister or the Nun in Her Smock. In [Rex v. Curl, 93 Eng Rep 487 (1727)], the court rejected the doctrine of Read and relied instead on Sedley’s Case. The court found corruption of morals to be an offense at common law and thereby established obscenity as a crime.
“The crime of obscene libel took root in 19th century England, and was accompanied by the rise of the Society for the Suppression of Vice in 1802. The Society crusaded against obscene publications, and their work culminated in the passage of two important pieces of legislation. The *158Vagrancy Act of 1824 made publication of indecent pictures a forbidden act and Lord Campbell’s Act of 1857 gave magistrates authority to issue search warrants for obscene material and have it destroyed. Since the printing of photographs was not prevalent until the late 1800s, the challenged works consisted mainly of writings, sketches, or line drawings.
‘ ‘American laws concerning pornography also found their origin in sacrilegious works. In 1711, the colony of Massachusetts enacted a statute stating that ‘evil communication, wicked, profane, impure, filthy, and obscene songs, composures, writings, or prints do corrupt the mind and are incentives to all manner of impieties and debaucheries, more especially when digested, composed or uttered in imitation or in mimicking of preaching or any other part of divine worship.’ The law prohibited the ‘composing, writing, printing or publishing of any filthy, obscene or profane story, pamphlets, libel or mock sermon, in imitation of preaching or any other part of divine worship.’ Despite this enactment, there were no reported obscenity prosecutions until 1815 and the Pennsylvania case of Commonwealth v. Sharpless[, 2 Serg & Rawle 91 (Pa 1815)]. Sharpless was charged with showing a drawing depicting a man and woman in a lewd posture. Like his British counterparts in Read and [Curl], Sharpless contended that there was no statute prohibiting his conduct. The Pennsylvania court relied on Sedley’s Case and found crimes against public decency to be indictable at common law. The first case involving a book alleged to be obscene arose in Massachusetts six years later. Peter Holmes was charged with publishing a lewd illustration along with the book Memories of a Woman of Pleasure. Relying on both the common law offense and the Massachusetts statute, the Supreme Judicial Court of Massachusetts convicted Holmes. While the American courts now recognized the common law crime of obscenity, much of the activity which followed was found in the legislative arena. In 1821, Vermont passed the first obscenity statute in the United States. The statute prohibited the printing, publishing, or vending of any lewd or obscene book, picture, or print. Massachusetts enlarged its colonial statute and other states soon followed.
“The first federal law concerning obscene materials was enacted in 1842. The focus of the act was to regulate materials imported into the United States. It prohibited ‘all indecent and obscene prints, paintings, lithographs, engravings and transparencies.’ ” United States Department of *159Justice, Attorney General’s Commission on Pornography, Final Report, 1240-45 (July 1986). (Footnotes omitted.)
In a parallel sense, governmental concern about the effect of some kinds of expression on children appears to have existed as early as the English case of Rex v. Hill, Mich 10 W 3 (1699), where “the defendant was indicted for printing some obscene poems of my Lord Rochester’s tending to the corruption of youth * * See Rex v. Curl, supra, 93 Eng Rep at 850. In this country, some early antiobscenity laws also focused on youthful exposure to particular expression. In Commonwealth v. Sharpless, supra, the defendants were indicted for exhibiting a painting “representing a man in obscene, impudent and indecent posture with a woman, to the manifest corruption and subversion of youth, and other citizens of this commonwealth * * 2 Serg & Rawle at 91. The indictment in that case alleged that the defendants had committed an offense for
“being evil-disposed persons, and designing, contriving and intending the morals, as well of youth as of divers [sic] other citizens of this commonwealth, to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires * * 2 Serg & Rawle at 91. (Emphasis supplied.)
In finding a common law offense for obscenity, the Pennsylvania court concluded that
“[t]he corruption of the public mind, in general, and debauching the manners of youth, in particular, by lewd and obscene pictures exhibited to view, must necessarily be attended with the most injurious consequences * * 2 Serg & Rawle at 103. (Emphasis supplied.)
As the report of the Attorney General’s Commission on Pornography points out, Massachusetts recognized a common law offense of obscenity in 1821. The case arose out of the indictment against the publisher of John Cleland’s Memoirs of a Woman of Pleasure for the publishing of the book and of a “lewd and obscene print, contained in [the book] * * Commonwealth v. Holmes, 17 Mass 336 (1821). The language of the indictment in that case is instructive regarding the effect of obscene expression on minors. It accused the publisher of
“ ‘being a scandalous and evil-disposed person, and contriving, devising and intending the morals as well of youth as of *160other good citizens of said commonwealth to debauch and corrupt, and to raise and create in their minds inordinate and lustful desires * * *.’ ” 17 Mass at 336. (Emphasis supplied.)
In both Sharpless and Holmes, the focus of the allegations arose, in part, from a concern for the welfare of youth and their exposure to erotic material.
Apart from the common law, early statutes also emphasized the problem of exposure of children to obscenity. In 1800, New Jersey enacted an antiobscenity law the purpose of which was to protect children. New Jersey’s Act for Suppressing Vice and Immorality, included “concerns about the corruption of the morals of youth, * * * gratifying ‘useless curiosity,’ and generally serving ‘no good or useful purpose in society.’ ” 1800 N J Rev Laws 329, 331. See Saunders, “Media Violence and the Obscenity Exception to the First Amendment,” 3 Wm & Mary Bill Rts J 107, 123 (1994). Also, in 1835, Massachusetts enacted the statute after which the Oregon territorial statute was patterned in 1854. The Massachusetts’ statute was listed in the Massachusetts code under a chapter titled, “Of Offenses Against Chastity, Morality, & Decency,” and prohibited the sale, distribution or publication of
“any book, or any pamphlet, ballad, printed paper, or other thing, containing obscene language, or obscene prints, pictures, figures, or descriptions, manifestly tending to the corruption of the morals of youth.” 1836 Mass Rev Stat 740. See Saunders, “Media Violence,” supra, 3 Wm & Mary Bill Rts J at 123-24. (Emphasis supplied.)
The concern about the corruption of the morals of youth resulting from exposure to obscenity, as expressed in the territorial statute, remained intact after statehood, and after Article I, section 8, was adopted. The territorial law was included in the first state criminal code written in Oregon in 1864. General Laws of Oregon, ch 48, § 637, p 560 (Crim Code) (Deady 1845-1864). The legislator, writer and compiler of the 1864 Criminal Code which included the statute, was Matthew P. Deady. Deady was not only a drafter of the Oregon Constitution, but was also the President of the Constitutional Convention, and took an active part in the debates regarding the Bill of Rights. The Oregon Constitution and Proceedings and Debates of the Constitutional Convention of 1857 65, 309 (Charles Henry Carey ed 1926). Presumably, *161the statute would not have been included in the state’s laws after statehood, had the constitutional framers believed that Article I, section 8, permitted the dissemination of expression that corrupted the morals of youth. Later, the statute would merge into general obscenity laws. See Or Laws 1885, § 653; see also Or Laws 1903, § 1.
In State v. Henry, supra, the Supreme Court recognized that
“[t]he territorial statute, which contained no definitions of ‘obscene’ and which was directed primarily to the protection of youths, certainly does not constitute any well-established historical exception to freedom of expression * * 302 Or at 522. (Emphasis supplied.)
Thus, although prohibitions against general obscenity were not well established, it is clear from the historical precedents that the founding fathers of statehood were concerned about the effect of obscene expression on minors and enacted statutes aimed at that evil. Other statutes that protected female children of a particular age from sexual contact further illustrate the recognition by early lawmakers that government needed to protect young people from adult predators who exploited them. See, e.g., Statutes of Oregon 1854, Crimes and Punishments, ch III, § 18, p 188. It reasonably follows that the drafters of Article I, section 8, would have considered the visual recordation of live or simulated sex acts by children not to be protected expression under section 8. In the light of this history, I am persuaded that ORS 163.680(2) is a descendent of those early laws and reflects a modern historical exception to section 8. However, the majority says:
“Thus, even assuming that the territorial provision created a historical exception, the scope of the exception is too undefined to conclude that ORS 163.680 falls within its confines. In summary, even if we consider the historical absence and the territorial provision arguments together, as indicative of some historical exception, the evidence offered by the state does not amount to a well-established and defined restriction on child pornography equivalent to ‘libel, perjury, forgery and the like.’ ” 132 Or App at 147.
That assertion ignores the language of the territorial and early state laws which made it unlawful to “sell or distribute any book* * * manifestly tending to the corruption *162of the morals of youth.” Statutes of Oregon 1854, Crimes & Punishments, ch XI, § 10, pp 210-11. The language of ORS 163.680, making it unlawful “for any person to pay or give anything of value to obtain or view” a visual depiction of sexually explicit conduct involving a child expresses an identical policy. If the early state and territorial legislatures considered expression that corrupted the morals of youth not to be protected speech, surely, they would not have intended expression that records live or simulated sex acts by children to be protected. It can hardly be said that involving children in sexually explicit conduct as defined by ORS 163.665 is not conduct that tends to “corrupt the morals of youth.”
Also, in considering whether section 8 prohibits statutes such as ORS 163.680(1), it is instructive to consider what the First Amendment proscribes, just as the Supreme Court did in State v. Henry, supra, even though section 8 provides broader protection. After all, the drafters of section 8 certainly would have had the First Amendment in mind when they considered the scope of section 8. In New York v. Ferber, 487 US 474, 102 S Ct 3348, 73 L Ed 2d 1113 (1982), the United States Supreme Court held that expression about children engaged in live sex acts is not protected under the First Amendment. It said:
“Recognizing and classifying child pornography as a category of material outside the protection of the First Amendment is not incompatible with our earlier decisions. ‘The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech.’ * * * Thus, it is not rare that a content-based classification of speech has been accepted because it may be appropriately generalized that within the confines of the given classification, the evil to he restricted so overwhelmingly outweighs the expressive interests, if any, at stake, that no process of case-by-case adjudication is required. When a definable class of material, such as that covered by [New York’s Child Pornography Statute], bears so heavily and pervasively on the welfare of children engaged in its production, we think the balance of competing interests is clearly struck and that it is permissible to consider these materials as without the protection of the First Amendment.” 487 US at 763-64. (Citations omitted.)
In support of its holding, the Court also said:
*163“The prevention of sexual exploitation and abuse of children constitutes a government objective of surpassing importance. The legislative findings accompanying passage of the New York laws reflect this concern:
“ ‘[Tjhere has been a proliferation of exploitation of children as subjects in sexual performances. The care of children is a sacred trust and should not be abused by those who seek to profit through a commercial network based upon the exploitation of children. The public policy of the state demands the protection of children from exploitation through sexual performances.’ 1977 NY, Laws, ch 910, § 1.
“We shall not second-guess this legislative judgment. Respondent has not intimated that we do so. Suffice it to say that virtually all of the States and the United States have passed legislation proscribing the production of or otherwise combatting‘child pornography.’ The legislative judgment, as well as the judgment found in the relevant literature, is that the use of children as subjects of pornographic materials is harmful to the physiological, emotional, and mental health of the child. That judgment, we think, easily passes muster under the First Amendment.” 487 US at 757-58. (Footnotes omitted.)
In summary, ORS 163.680(1) protects children from being sexually abused and exploited. The fact that the statute also inhibits the commercial propagation of visual recordings of the abuse does not make it unconstitutional under Article I, section 8. The sexual abuse of children is not protected expression under section 8, nor can a form of expression that is a mirror of that conduct be privileged because of the historical exception to Article I, section 8, regarding prohibition of the distribution of materials tending to corrupt the morals of youth. Moreover, the holding of the majority not only declares ORS 163.680(1) unconstitutional, but impugns the constitutionality of every Oregon statute dealing with child pornography.2 In effect, the majority opinion legalizes child pornography in Oregon and its holding will result in a legal cottage industry3 of child pornography in Oregon. I *164recognize that the majority sincerely believes in the intellectual integrity of its analysis, and that it is not a willing advocate for the results that its holding will produce. Nonetheless, it is unfortunate that it is unwilling to recognize that the focus of ORS 163.680(1) is not on the value of the expression in question, but on the protection of children who cannot protect themselves. How ironic that Article I, section 8, a wonderful expression of the inherent right of Oregon citizens to freely express themselves in the governing of their own affairs, has now become the beast that swallows the future of our children by perpetuating sexual abuse.
I dissent.
Rossman, J., joins in this dissenting opinion.Former United States Attorney General Edwin Meese formed the Commission on Pornography in 1985. He asked it to “determine the nature, extent, and impact on society of pornography in the United States, and to make specific recommendations to the Attorney General concerning more effective ways in which the spread of pornography could be contained with constitutional guarantees.” Commission Charter, reprinted in United States Department of Justice, Attorney General’s Commission on Pornography, Final Report 1957 (July 1986).
The definition of “sexually explicit conduct” as used in OES 163.665 is employed throughout the prohibitions in ORS 163.370 through ORS 163.695. All of those statutes involve depiction of children involved in “sexually explicit conduct.”
Los Angeles police estimate that one child pomographer earned $5 million to $7 million before his conviction for molesting a foster child. Note, “Child Pornography: A New Role for the Obscenity Doctrine,” 1978 UL Law Forum 711, 714.