concurring in part, dissenting in part.
I concur in the majority’s disposition of the issue regarding the motion to suppress. However, I disagree with the majority’s decision to reverse the trial court’s order overruling defendant’s demurrer to the two indictments. Because defendant should not be retried under those indictments, I dissent.
The indictments charged defendant with violating ORS 163.673 and ORS 163.670. Defendant contends that those statutes violate Article I, section 8, of the Oregon Constitution because they forbid expression and are unconstitutionally vague and overbroad. The state acknowledges that the dispute centers on the definition of “sexually explicit conduct” in ORS 163.665(2)(f):
“ ‘Sexually explicit conduct’ means actual or simulated:
“(f) Lewd exhibition of the genitals or anus.”
However, the state contends that ORS 163.670 and ORS 163.673, which incorporate that definition, do not restrict protected expression and are not vague or overbroad. Although ORS 163.665(2) describes various forms of sexually explicit conduct, the parties agree that this case involves only that form described in ORS 163.665(2)(f).
*333The majority decides that the statutes are not vague or overbroad and rejects defendant’s Article I, section 8 challenge. Those holdings are erroneous because they are unnecessary.
The majority opinion is notable for its failure to follow over a decade of decisions from the Oregon Supreme Court requiring that we follow a precise analytical framework in assessing the constitutionality of a statute challenged under Article I, section 8. See Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993); State v. Plowman, 314 Or 157, 163, 838 P2d 558 (1992); Oregon State Police Assn. v. State of Oregon, 308 Or 531, 783 P2d 7 (1989), cert den 498 US 810 (1990); City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988) (“adult business” ordinance); State v. Henry, 302 Or 510, 732 P2d 9 (1987); State v. Moyle, 299 Or 691, 695, 705 P2d 740 (1985); State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982); State v. Spencer, 289 Or 225, 228, 611 P2d 1147 (1980). That analysis requires us to determine at the outset whether the government enactment on its face restrains speech, within the meaning of Article I, section 8. State v. Moyle, supra, 299 Or at 695. If the law restrains the free expression of opinion, we must inquire whether the restraint was well established in law when the American guarantees of free speech were adopted and is one that those guarantees demonstrably were not intended to abolish. State v. Henry, supra, 302 Or at 514. If the government demonstrates that the law falls wholly within an historical exception, it will not, on its face, violate Article I, section 8. State v. Robertson, supra, 293 Or at 412. However, that enactment will be scrutinized for possible overbreadth, and may be narrowly construed, if possible, to confine it to the constitutional limits intended by the lawmakers. State v. Moyle, supra, 299 Or at 702.
A law that does not fall within an historical exception must be analyzed to determine whether the focus of it, as written, is on an identifiable, serious and imminent effect or harm that may be forbidden, rather than on communication itself. See Oregon State Police Assn. v. State of Oregon, supra, 308 Or at 536. If the statute identifies in its text the actual harm it forbids, rather than prohibiting the use of words, *334then it does not violate Article I, section 8, on its face. See State v. Ray, 302 Or 595, 598, 733 P2d 28 (1987).
If a statute is directed only against causing the forbidden effects, a person accused of causing those effects by language or gestures could assert either that the law is unconstitutional as applied to his particular expression or that it is unconstitutionally vague, i.e., that it is drawn in terms that fail to give notice to potential defendants of the conduct that is prohibited and delegates uncontrolled discretion to the judge or jury to punish or withhold punishment. See State v. Moyle, supra, 299 Or at 706.
Defendant’s contention that the statutes violate Article I, section 8, triggers the application of this established framework for evaluating whether a law violates that provision. State v. Plowman, 314 Or 157, 163, 838 P2d 558 (1992). He asserted in his demurrer claims that ORS 163.665(6) is unconstitutionally vague and that
“[proscribing the free depiction of nudity by photographs also violates Defendant’s Article I, Section 8 rights under the Oregon Constitution.”
On appeal, he again asserts his claims that “the statutes from which the indictments were drawn are unconstitutionally both vague and overbroad and flatly violative of Oregon’s Article I, section 8.” The majority cannot evade the required methodology by claiming that defendant failed to invoke his rights under Article I, section 8. Even if he had only asserted claims of vagueness and overbreadth, we would be required to decide whether the challenged laws pass muster under the State v. Robertson framework. In State v. Garcias, 296 Or 688, 695, 679 P2d 1354 (1984), the court said:
“Before we address defendants’ claims of overbreadth and vagueness we must consider first whether this law could be enacted at all in light of [Article I, section 8].”
The majority should apply, not ignore, the required method of analysis.
I turn to the merits. ORS 163.673(l)(a) provides, in part:
“ (1) A person commits the crime of dealing in depictions of sexual conduct involving a child if the person knowingly:
*335“(a) Develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance, or sells any photograph, motion picture, videotape or other visual recording of sexually explicit conduct involving a child***"
Under the State v. Robertson methodology, ORS 163.673 (l)(a) forbids expression. Photographs or video recordings are constitutionally protected forms of speech and printing, and they do not lose their protection because they convey a sexually explicit content. See City of Portland v. Tidyman, supra, 306 Or at 191 (adult bookstore ordinance held an. unconstitutional infringement of the right of free speech and printing under Article I, section 8); State v. Henry, supra, 302 Or at 525. In view of the restrictions in the text on publication, printing and dissemination of photographs and video recordings, it is difficult to imagine a clearer prior restraint on the creation or free exchange of pictorial communication. The State made no showing at trial or on appeal, that the statute satisfied the “historical exception” doctrine. State v. Henry militates against a conclusion that this statute has survived the adoption of the American constitutional guarantees of free speech. 302 Or at 520. By following the required methodology, I conclude that Article I, section 8 deprived the legislature of power to enact ORS 163.673(l)(a).
ORS 163.670 provides, in part:
“A person commits the crime of using a child in a display of sexually explicit conduct if the person employs, authorizes, permits, compels or induces a child to participate or engage in sexually explicit conduct for any person to observe or to record in a photograph, motion picture, videotape or other visual recording.”
Although the legislature can reasonably regulate the nuisance aspect of adult sexually explicit photography and video recordings in the interest of children, it cannot do so by restricting the speech aspect of those activities. City of Portland v. Tidyman, supra, 306 Or at 193. (Jones, J., specially concurring). This statute forbids using children in sexually explicit conduct but only if the activity is connected to the creation or observation of a visual recording. It does not forbid an identifiable effect without restricting communication itself. Oregon State Police Assn. v. State of Oregon, *336supra, 308 Or at 536. The statute could be drafted to regulate the perceived nuisance aspects of this form of pictorial communication to protect minors, but it does not address that proper objective in its present form.
Even if the challenged statutes could be viewed as restrictions on a forbidden effect that make no reference to expression, they are unconstitutionally vague because they regulate communication only if it is “lewd.” See State v. Graves, 299 Or 189, 195, 700 P2d 244 (1985), which holds that vague criminal laws offend Article I, sections 20 and 21, of the Oregon Constitution. See also State v. Spencer, 289 Or 225, 231, 611 P2d 1147 (1980), which implies that vagueness in a law concerning speech also violates Article I, section 8, and holds that that defect may be raised by demurrer without considering “what the conduct is in the individual case.” 289 Or at 228.
In State v. Henry, 78 Or App 392, 717 P2d 189 (1986), aff’d on other grounds, 302 Or 510, 732 P2d 9 (1987), this court held that a statute that forbade distribution of “obscene” materials was unconstitutionally vague. Our opinion, with which the Supreme Court expressly did not disagree, 302 Or at 513, said:
“Because ORS 167.087(2) must be used by judges, juries and potential defendants to assess the criminality of particular conduct, we hold that its definitions are not sufficiently precise to determine whether particular sexually explicit material is legally obscene. It is not acceptable, as a matter of state constitutional law, that the precise course of the line dividing obscene expression from protected expression be uncertain and that a person who chooses to disseminate sexually explicit materials must bear the risk of that uncertainty. The constitutional right to communicate freely on ‘any subject whatever’ guaranteed by Article I, section 8, requires more than the statute provides by way of guidance. A person who trades in sexually explicit materials cannot discern that his wares are legally obscene under the statute; a trial judge is left with no legal standard to apply; and jurors are required to determine what is or is not obscene on the basis of their personal ideas of contemporary state standards.” 78 Or App at 405.
*337In State v. Ray, 302 Or 595, 601, 733 P2d 28 (1987), the court analyzed a statute prohibiting harassment by telephonic use of “obscenities.” The statute incorporated a legislative definition of “obscene.” The court held that the statute was unconstitutionally vague:
“[T]he fatal vagueness in the statute is its reference to ORS 167.087(2)(b) and (c), which provide that a matter is obscene if, taken as a whole, the average person applying contemporary state standards would find the work appeals to the prurient interest in sex and it lacks serious literary, artistic, political or scientific value. Those definitions are an unconstitutional delegation of legislative power to ¿judge or jury, permitting a judge or jury to decide what the law will be, hinging on a case-by-case adjudication. In a law censoring speech such an indeterminate test is intolerable. State v. Henry, 302 Or 510, 513, 732 P2d 9 (1987).”
State v. Henry observed that the term “lewd” has functioned as a synonym for the vague term “obscene:”
“The term ‘obscene’ simply functioned as a condemnatory term declaring words, pictures, ideas or conduct as improper by definition, whatever may, from time to time, be placed within the definition, e.g., ‘blasphemous,’ ‘profane,’ ‘immoral,’ ‘depraved,’ ‘corrupt,’ ‘lewd,’ ‘lascivious,’ ‘impure’ and ‘hard-core pornography.’ ” 302 Or at 520. (Emphasis supplied.)
State v. Ray and State v. Henry control our analysis of the term “lewd.” That indeterminate epithet forbids no specific conduct. It permits a judge and jury to determine what the law will be on a case-by-case basis. That is not acceptable when constitutionally protected freedom of expression hangs in the balance.
The majority relies on two of our cases and a host of dictionary definitions for its conclusion that “lewd” is not unconstitutionally vague. The variety of the dictionary definitions demonstrates that the meaning of “lewd” is subjective and far from unmistakable. We should not attempt to contrive a definition for an amorphous term in a criminal statute that impinges on expression. Policymaking of that kind is the legislature’s task.
The short answer to the majority’s citation of Palm Gardens, Inc. v. OLCC, 15 Or App 20, 514 P2d 888 (1973), rev *338den (1974) and Korgan v. OLCC, 72 Or App 31, 695 P2d 81, rev den 299 Or 443 (1985), is that those cases pre-date Henry and Ray and do not reflect the Supreme Court’s current analysis of vague terms that forbid expression. Furthermore, assuming arguendo that “lewd” is an acceptable term controlling statutory interpretation by an administrative agency, it does not adequately separate permitted from prohibited expression for criminal law enforcement.1
Defendant’s demurrer should have been sustained in CA A61964 and CA A61965. Accordingly, I dissent from the majority’s ruling on the demurrer.
The following passage in State v. Blair, 287 Or 519, 524, 601 P2d 766 (1979), is pertinent:
“This is not the place to suggest how to write a valid statute or whether the foregoing elements would suffice, and we intend no such implication. We mention them only to point out that in enacting ORS 166.065(1) the Legislative Assembly expressed a policy of protecting persons against imposition of annoyance and alarm, but it did not face up to the difficult question of exactly how far and against what kind of conduct it intended to extend that protection. A policy so expressed may well be adequate guidance for an administrative agency, but it is not adequate for criminal law enforcement.”