concurring.
I agree with the majority that the trial court erred in denying defendant’s demurrer to Counts 2, 3 and 4, because the statute on which the counts are based violates Article I, section 8, of the Oregon Constitution. I write separately, however, (1) to amplify the Oregon free-speech analysis on which the decision is based, (2) to confirm that the Oregon analysis allows the state to impose restrictions on expression equivalent to those imposed under the First Amendment in a case such as this, if the factual assumptions that underlie the decision to impose the restrictions •• are correct and (3) to explain how the legislature readily can adopt laws to address the legitimate desire to protect children against sexual exploitation and harm.
Article I, section 8, provides that
“[n]o 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.”
To determine whether a law violates the prohibition in Article I, section 8, against the enactment of laws that restrain or restrict expression, it is necessary to determine whether the law, by its terms, is directed at the effects of expression, or at expression alone. It is necessary to make that determination because the two types of laws are analyzed differently under Article I, section 8.
*657The difference in analysis recognizes that Article I, section 8, was adopted to prohibit the state from enacting laws that target expression for restriction, but not from enacting laws that address the harmful effects of expression. If the state is concerned about the harmful effects of expression, it must adopt laws that focus on those effects. With some exceptions, it cannot enact laws that simply restrict expression, based on the belief that the expression will cause harm.
A law that restricts expression without regard to the effect of the expression violates Article I, section 8, unless the law fits within a well-established historical exception to the constitutional guarantee of free expression.1 The test applicable to such a law recognizes that there were well-established restrictions on expression in effect when the early constitutional guarantees of free expression were adopted, and that adoption of the Oregon free-speech guarantee was meant to displace some but not all of them. See, e.g., Moser v. Frohnmayer, 315 Or 372, 376-78, 845 P2d 1284 (1993). A law that fits within a well-established historical exception is valid if the state shows that the exception was intended to survive the adoption of the free-speech guarantee. See, e.g., id.
If a particular restriction on expression meets the historical-exception test, it is not necessary for the restriction to identify the harmful effects to which it is addressed. The law simply can identify the expression that it prohibits or regulates. See, e.g., id. at 376-80; State v. Robertson, 293 Or 402, 412-18, 649 P2d 569 (1982).
A law directed against the effects of expression is analyzed differently. A law of that kind is a law that expressly or by clear inference identifies the effects it addresses, and that applies when the effects are shown to exist. See, e.g., Moser, 315 Or at 379-80.
To be valid under Article I, section 8, such a law must satisfy the following test: First, the effects to which the law is directed must be effects that the state lawfully can address by *658restricting expression. See, e.g., State v. Moyle, 299 Or 691, 699-702, 705 P2d 740 (1985). Second, the law must function so that it applies only when the harmful effects to which it is addressed are shown to exist. See, e.g., Moser, 315 Or at 379-80; City of Portland v. Tidyman, 306 Or 174, 184-91, 759 P2d 242 (1988). Finally, the law must not reach constitutionally privileged communication, that is, it must not prohibit or regulate expression in which people have a privilege to engage without governmental interference. See, e.g., Robertson, 293 Or at 417-18, 434-37.
Significantly, the modern analysis of Article I, section 8, and the Supreme Court’s current First Amendment analysis should permit the government to impose equivalent restrictions on speech in many situations, as long as the factual assumptions on which laws are upheld under the First Amendment are true. For example, in Renton v. Playtime Theatres, Inc., 475 US 41, 106 S Ct 925, 89 L Ed 2d 29 (1986), the Supreme Court upheld a zoning ordinance that restricted the location of “adult” theaters in Renton, Washington. It did so based on a record that showed that the city council was persuaded by the experience of other communities to adopt the restriction in order to protect against harmful ‘ ‘secondary effects” of such theaters. Id. at 47-52. The problem with that approach is that, if it turns out that the feared secondary effects are illusory, the restriction will nevertheless be valid. That means that the expression presented in the theaters will be restricted whether or not it produces the harmful effects that ostensibly motivated the lawmakers to enact the restriction.
In contrast, the Oregon analysis requires lawmakers to adopt restrictions on speech that focus on the harmful effects against which the restrictions are addressed. That means that when the state enforces laws restricting speech, it must establish, as fact, that the targeted speech produced, or would produce, the harmful effects that the state sought to prevent in enacting the laws. As long as the state can do that, the state and federal analyses will allow the state to impose equivalent restrictions on expression in many instances.2 The *659results under the two analyses will diverge, however, when the factual assumptions that are used to uphold laws under the First Amendment prove incorrect.
In effect, the Oregon analysis requires truth in lawmaking when lawmakers decide to impose restrictions on expression. It requires them to identify the harmful effects of expression about which they are concerned, by making those effects part of the operative terms of the restriction. That permits examination of the effects to determine if they are effects that the state lawfully can address through restriction of expression,3 and it protects against restricting speech that does not, in fact, produce harmful effects.4
Against that background, the validity of ORS 167.065(l)(a) can properly be analyzed. That analysis establishes that ORS 167.065(l)(a) is not a law directed at the effects of expression, but, rather, it is a law directed against expression itself. Furthermore, it does not come within a well-established historical exception to the protection afforded free expression by Article I, section 8. Hence, the statute violates Article I, section 8.
The distinction between laws directed at the effects of expression, and those directed at expression itself, is well illustrated by comparing the laws at issue in Moyle and State v. Garcias, 296 Or 688, 679 P2d 1354 (1984), with the law at *660issue here. In Moyle, the court upheld a harassment statute that prohibited subjecting a person to alarm by conveying certain threats. The statute prohibited communication, but only when the communication produced an identified, harmful effect: subjecting another person to alarm. Moyle, 299 Or at 697-99.
Similarly, in Garcias, the court upheld a menacing statute that prohibited using words or conduct to attempt to place a person in fear of imminent serious physical injury. Here again, the statute prohibited communication, but only when it was used to produce an identified, harmful effect: attempting to instill fear in another person of imminent serious physical injury. Garcias, 296 Or at 695-97; see also Robertson, 293 Or at 412-18.5
In contrast, the law against furnishing obscene materials to minors is not a law that identifies any effects of expression to which it is addressed. The law simply prohibits communicating with minors using certain images.6 It says *661nothing about the effect of the communication. All that must be established to secure a conviction is that the communication occurred, and that the person who furnished the material to the minor knew, or had good reason to know, the content of it. See ORS 167.065(l)(a).7
It does not matter whether the effect of the communication is benign or benighted. For example, it is an affirmative defense to the statute that the person engaging in the communication is a parent or guardian of the minor. See ORS 167.085(1). Consequently, a parent who wishes to sexually abuse his or her child can furnish sexually explicit materials to the child in order to do that and not violate the statute. Conversely, an aunt, uncle or grandparent who wants to protect the child against sexual abuse by providing information about sexual activity, in order to make the child aware of the problem, will run afoul of the statute.
As the foregoing discussion indicates, ORS 167.065-(l)(a) is a law directed at expression, rather than the effects of expression, because it does not require the state to establish that the prohibited communication had any effect in order to secure a conviction under the statute. The dissents dispute that conclusion, however, contending that the focus of the *662law is on protecting children against the harmful effects of exposure to sexually explicit expression.
In fact, the statute is not so focused. As noted above, it does not apply to parents and guardians who furnish obscene materials to minors for the purpose of harming or endangering their welfare, because those people enjoy a blanket exemption from the statute. See ORS 167.085. Conversely, it applies to people whether or not their actions harm or endanger minors.
For example, a bookstore owner would violate the statute by selling to a 17 year old a copy of Madonna’s book, Sex, yet the child could obtain the same book from a library without any impediment. See ORS 167.085(2). It is hard to see how the bookstore owner could be understood to act to harm or endanger the welfare of the minor, while the librarian would not.
Similarly, a 17-year-old girl would violate the statute by giving the same book to her twin sister or brother. Here again, the statute cannot be understood to apply only to those whose actions harm or endanger minors, because the statute does not make that harm an element of the crime.
The dissents claim, however, that the material covered by the statute is inherently harmful to minors, so the law necessarily is an effects-based law because it protects minors against the inherent harm that the material would cause. See, e.g., 138 Or App at 673. The dissents’ assertions cannot be reconciled with the fact that the statute allows parents, guardians, schools, museums and public libraries to furnish the material to minors with impunity. See ORS 167.085(1), (2). If the material were inherently harmful, the law would not allow the exceptions to its coverage that it does.
The dissents’ discussion betrays a basic misunderstanding of the relevant analysis. It fails to distinguish between (1) laws that are motivated by a concern with the effects of expression but that are written solely in terms of the expression to be restricted and (2) laws that are written in terms of the harmful effects caused by expression. The distinction between the two types of laws is well illustrated by the Supreme Court’s decision in City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988).
*663Tidyman involved a Portland zoning ordinance that restricted the location of bookstores that sold sexually explicit material. The ordinance expressly identified the harmful effects that the city believed to be caused by adult bookstores, and that had prompted the city to restrict their location. 306 Or at 184-85. The problem, however, was that those effects were not made part of the operative language of the ordinance, such that the restriction would apply only when the effects were shown to exist:
“In short, the problem with the city’s asserted ‘concern with the effect of speech,’ is that the operative text of the ordinance does not specify adverse effects that constitute the ‘nuisance’ attributable to the sale of ‘adult’ materials[,] and therefore [the ordinance] does not apply only when these adverse effects are shown to occur or imminently threaten to occur. Rather, the ordinance makes a one-time legislative determination that retailing substantial quantities of sexually oriented pictures and words within the proscribed area will have adverse effects that retailing other pictures and words would not have, and that it therefore can be restricted as a ‘nuisance’ by a law describing the materials rather than the effects. * * * Such lawmaking is what Article I, section 8, forbids.”
Id. at 185-86 (footnote omitted).
The distinction is further illustrated by In re Lass-well, 296 Or 121, 673 P2d 855 (1983). Lasswell was a disciplinary proceeding in which a district attorney was accused of violating a disciplinary rule for attorneys, DR 7-107, by making public comments about a pending criminal prosecution. The disciplinary rule at issue imposed various restrictions on such comments. As written, however, the rule did not specify the harmful effects to which it was addressed. Rather, it simply identified the expression that it prohibited. See Lasswell, 296 Or at 123-24.
Nevertheless, the court upheld the disciplinary rule against constitutional attack by narrowly construing it to apply only when certain harmful effects were shown to exist.8 In other words, the law was valid because the effects that the court identified were effects that had to be shown in order to *664establish a violation of the rule. As construed by the court, the rule required the disciplinary board to establish something more than that the attorney had communicated. The board had to find that the communication had an identified, harmful effect. See also Tidyman, 306 Or at 188-91 (“regulation [must] address the effects rather than the expression as such”).
Here, the dissents do not, because they cannot, identify any effect that must be shown in order to make the statute applicable to a particular person. All that must be shown is that a defendant communicated with a minor using certain images. Consequently, the law targets expression rather than the effects of expression.
The Edmonds’ dissent argues, nevertheless, that the law serves to protect children against the harmful effects of sexual activity by preventing them from being exposed to expressive material that may lead them to engage in that activity. It equates the law against furnishing sexually explicit materials to minors with laws that prohibit furnishing alcohol or tobacco to minors, on the ground that they embody a legislative judgment that children lack maturity to make appropriate decisions about the use of those materials. See 138 Or App at 674-75 & n 5. But the laws cannot be equated. If they could, it would be permissible for the state to enact laws that prohibit exposing children to alcohol and tobacco advertising, or to literature that features alcohol and tobacco use by children, in order to protect them against using alcohol or tobacco. Nothing suggests that laws imposing such restrictions would be valid under Article I, section 8.9
Similarly, if the Edmonds’ dissent were correct, the state could enact a law that prohibits providing racist literature to children in order to prevent them from joining racist *665gangs and committing violent, racist acts, again based on the belief that children lack maturity to make sound judgments about those issues. The state properly can be concerned about racism and racist youth gangs, but the constitutional guarantee of free expression prevents the state from translating that concern into laws that prohibit people from exposing children to racist ideas or beliefs. Instead, laws addressed to those concerns must focus on the actual, harmful effects of racist expression. For example, the state could make criminal the use of speech to recruit children to join a racist gang whose function is to commit violent, racist acts. Such a law might reach the activities of those who recruited children to join the gang that murdered Mulugeta Seraw in Portland in 1988, but it would not reach the activities of those who simply created or distributed literature to gang members espousing racist beliefs.10
The fundamental flaw in the Edmonds’ dissent’s analysis is perhaps best illustrated by examining its discussion of the classic example of speech that can be punished, in which a person falsely shouts “Fire!” in a crowded theater. The dissent suggests that the legislature could enact a law making it unlawful to shout “ ‘Fire’ in a crowded, dimly lit nightclub.” 138 Or App at 677-78. According to the dissent, such a law would be constitutional because
‘ ‘its focus [would be] on the proscription of the pursuit or the accomplishment of a forbidden effect: causingpeople to panic in a public place.”
Id. at 677-78. The statute would permit prosecution of those who shout “Fire!” in that setting, but not of abartender who shouts “ ‘Free drinks for everyone at the bar.’ ” Id. at 677-78.
The fact is that the law hypothesized by the dissent would violate Article I, section 8, because it would focus on expression rather than on the harmful effects of expression. For example, it would make it unlawful for a theater group to perform Tom Stoppard’s play Rosencrantz & Guildenstern *666Are Dead in a public place, because the actor who plays Rosencrantz must shout “Fire!” in the course of the play.11
If the legislature wants to prevent people from causing unwarranted stampedes in public places, it must do so by enacting a law written in those terms, rather than in terms of expression that could have that effect. Such a law would apply only when the state could show, in a prosecution under it, that the harmful effect against which the law was addressed had, in fact, occurred. Properly written, such a law would not permit the state to prosecute the actor who plays Rosencrantz in Stoppard’s play, but it might permit prosecution of the bartender who causes a stampede by shouting “Free drinks for everyone at the bar.” That is because the law, as written, would be concerned with actions that cause stampedes, and not with the content of expression independent of the proscribed effect.
As the foregoing discussion suggests, the state can adopt laws designed to prevent unwarranted panics in public places, just as it can enact laws to protect children against sexual exploitation and harm. All Article I, section 8, requires is that it do so by laws that focus on the harmful effects and not simply on expression that it believes could cause those effects.
The Edmonds’ dissent suggests, however, that the lead opinion and this concurrence fail to deal with a statement in Moser that the effects to which a law restricting expression are addressed can be inferred rather than stated explicitly in the law. See 138 Or App at 673 n 4. The dissent is wrong. The statement in Moser has as its source a statement in Lasswell. See Moser, 315 Or at 379. As explained above, the court in Lasswell inferred that a disciplinary rule that *667restricted speech by attorneys involved in a criminal prosecution had, as its intended effect, the prevention of conduct by attorneys for the state that was highly likely to deny defendants a fair trial. Critically, that inferred effect became an element that had to be proven in order to establish a violation of the rule. See Lasswell, 296 Or at 125-27. The inferred effect was not simply the reason that the rule was adopted.
The Edmonds’ dissent ignores all that and assumes that an inferred effect is sufficient to uphold a law if the inferred effect is simply the goal that the legislature sought to achieve in enacting the restriction on speech. That is not the way the analysis works, as confirmed by the Supreme Court’s decision in Tidyman. There, the effects to which the law was addressed were stated in the ordinance itself; it was not necessary to infer them. Nevertheless, the law was invalid because the effects were not effects that had to be shown in order to impose the restriction on expression. Tidyman, 306 Or at 184-91. The Edmonds’ dissent says nothing about that aspect of Tidyman, because there is no way that it can be reconciled with its analysis.
Here, the law at issue is a criminal law. We cannot add an element to a crime that the legislature has enacted, so any inferred effect that we might identify cannot become an element that must be shown to secure a conviction under ORS 167.065(l)(a). Consequently, the statement about inferred effects in Moser adds nothing relevant to the analysis in this case.
Because ORS 167.065(l)(a) is a law directed against expression, rather than the effects of expression, it violates Article I, section 8, unless the restriction on expression embodied in the statute is
“ ‘wholly confined within some historical exception that was well established when the first American guarantees of freedom of expression were adopted and that the guarantees then or in 1859 demonstrably were not intended to reach.’ ”
Moser, 315 Or at 376 (quotingRobertson, 293 Or at 412). The state argues that an 1853 Oregon territorial statute that prohibited the importation, production or dissemination of any obscene material constitutes such an historical exception. The avowed purpose of the prohibition was to protect *668against “the corruption of the morals of youth,” but the prohibition applied to everyone, including parents and educators.
In State v. Henry, 302 Or 510, 522, 732 P2d 9 (1987), the court said that the
“territorial statute, which contained no definition of ‘obscene’ and which was directed primarily to the protection of youth, certainly does not constitute any well-established historical exception to freedom of expression and that statute is in no way the equivalent of statutes punishing libel, perjury, forgery and the like.”
In view of the court’s treatment of the territorial statute in Henry, it is hard to see how the statute provides any historical support for restrictions on the dissemination of sexually explicit material to minors.
Even if the territorial statute could be understood to be a relevant, well-established historical exception, there is a further problem with its application to this case, as this court recognized in State v. Stoneman, 132 Or App 137, 147, 888 P2d 39 (1994), rev allowed 321 Or 94 (1995):
“[BJecause the territorial [statute] does not define ‘obscene,’ it is difficult to dehneate the boundaries of the historical restriction and, thus, determine whether the challenged statute extends beyond the restriction.”
Some examples of the apparent reach of ORS 167.065(l)(a) should illustrate the problem.
For example, a 17-year-old girl (or boy) who gives a 16-year-old sibling a copy of Playgirl or Penthouse would violate the statute without regard to the effect of providing the material. Similarly, an uncle who gave a 16-year-old nephew a print of Rodin’s sculpture “The Kiss” arguably would run afoul of the statute, again without regard to the effect of giving the boy the print.
It is impossible to know whether the foregoing examples involve conduct that would have been covered by the 1853 territorial statute, because the statute does not define the obscene material to which it was addressed, other than to identify it as material “ ‘manifestly tending to the corruption of the morals of youth.’ ” Henry, 302 Or at 522. Because the *669reach of the 1853 statute cannot be determined, it is impossible to know whether ORS 167.065(l)(a) restricts expression that would have been permitted under the 1853 statute. Hence, even if the 1853 statute otherwise could be considered to be a well-established historical exception to the protection afforded free expression by Article I, section 8, the statute cannot be used to uphold ORS 167.065(l)(a).
Neither the state nor the dissents have identified any other law that could be considered to be a relevant, historical exception to the free-speech guarantee, and I have found none. Under those circumstances, ORS 167.065(l)(a) cannot be upheld as a law that comes within a well-established exception to the constitutional guarantee of free expression.12
In summary, ORS 167.065(l)(a) is a law directed at expression rather than its effects, and it does not come within a well-established historical exception to the protection afforded free expression. It follows, then, that the statute violates Article I, section 8, as the majority correctly holds.13
It is important to emphasize, however, that a determination that ORS 167.065(l)(a) is invalid does not mean that the state is powerless to address the concerns that may have motivated its enactment. For example, to protect minors against being induced to engage in unlawful sexual conduct, *670the state might adopt a law that prohibits communicating with minors to induce them to engage in that conduct. Such a law could well be used to address the very conduct in which defendant apparently engaged in this case, and for which he was convicted under ORS 167.065(l)(a).14 In summary, the problem is with the law that the legislature enacted, not with the concern to protect children on which it was based.15 Within the constraints imposed by Article I, section 8, it is for the legislature to determine the harmful effects of expression that it wishes to address, and how best to do so.
To say that a law restricts expression without regard to the effect of the expression means that the law does not require the state to establish that the targeted expression produced a prohibited effect in order for the restriction to apply. The state need only establish that the expression is of the type that the law intends to restrict.
The principle will not apply uniformly because the Supreme Court has developed a body of law under the First Amendment that assigns different levels of protection to different categories of speech. For example, the Supreme Court treats *659commercial speech as being entitled to less protection under the First Amendment than political speech. See, e.g., Florida Bar v. Went for It, Inc., 515 US_, 115 S Ct 2371, 132 L Ed 2d 541 (1995). In contrast, the Oregon analysis treats all categories of speech equally, which is consistent with the text of Article I, section 8, which protects speech “on any subject whatever” against restriction.
Not all effects that might be considered to be harmful are effects against which the state can act by restricting expression. For example, it may cause a person great anguish to be told that his or her spouse wants a divorce, but the state cannot protect people against that “harm” by prohibiting the expression that causes it.
Of course, as noted earlier, those principles do not apply to laws that come within a well-recognized historical exception to the protection afforded free expression, because laws that come within such an exception need not focus on the effects of the targeted expression. 138 Or App at 657. The exception for such laws recognizes that certain laws were intended to survive the adoption of the constitutional guarantee without regard to whether they were written to include in their operative text the effects against which they were addressed. The state can revise and update those laws without the need to make the effects against which they are addressed part of their operative text. See Robertson, 293 Or at 433-34.
The De Muniz dissent argues that the menacing statute at issue in Garcias did not make the identified harm an element of the offense. 138 Or App at 684 n 3. That is not correct. The menacing statute made it a crime to attempt to cause another person to fear that she would suffer imminent serious physical injury. Garcias, 296 Or at 692. To secure a conviction under the statute, the state would have to show that the expression at issue would cause the identified harm — making a person fear imminent serious physical injury — even if the person to whom the threat was made did not believe it. For example, a person who points a gun at another person and threatens to shoot her would violate the statute even if the person to whom the threat was made did not consider the threat to be serious, as long as the jury found that the threat was intended to cause the identified harm, which was to place the person in fear of imminent serious physical injury. In contrast, the jury in a case under ORS 167.065(l)(a) is not required to find that the expression at issue had or would have any effect. It is required only to find that expressive materials were furnished to a minor and that those materials were known to contain certain images. In summary, the statute at issue in Garcias required the jury to find that the targeted expression was intended to have an identified effect; the statute at issue in this case does not, and that makes all the difference.
The De Muniz dissent also claims support from State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den 509 US_, 113 S Ct 2967, 125 L Ed 2d 666 (1993), and City of Eugene v. Miller, 318 Or 480, 871 P2d 454 (1994), for its conclusion that a law restricting expression need not make the effects to which it is addressed an operative part of the law. Those decisions add nothing relevant to the analysis. In both cases, the court determined that the laws at issue were not laws that restricted expression, so the laws did not have to make the effects to which they were addressed part of them.
The law at issue, ORS 167.065(l)(a), provides:
“(1) Aperson commits the crime of furnishing obscene materials to minors, *661if, knowing or having good reason to know the character of the material furnished, the person furnishes to a minor:
“(a) Any picture, photograph, drawing, sculpture, motion picture, film or other visual representation or image of a person or portion of the human body that depicts nudity, sadomasochistic abuse, sexual conduct or sexual excitement
ORS 167.060 defines the terms “nudity,” “sadomasochistic abuse,” “sexual conduct” and “sexual excitement” that are used in ORS 167.065(l)(a). Taken together, those provisions identify certain imagery that cannot be used to communicate with minors. The law does not require the state to show that the imagery had or would have any effect on minors in order to secure a conviction under it.
One way to confirm that the law does not, by its terms, address any effect of the targeted expression is to recognize that the legislature could substitute some other subject of communication for those identified in the statute without the need to make any other change in the statute. For example, if the legislature were concerned about the effect on minors of viewing violent images, it could replace the references to various forms of sexual activity in ORS 167.065(l)(a) with references to various forms of violence. The focus of the law would change solely by redefining the targeted expression. Because the law does not identify any effect of the targeted expression, no other change in the statute would be required to alter its focus. In summary, the statute is not a statute that focuses on the effects of expression. It is a statute directed against the expression itself.
The court did so by inferring that the rule was intended to require such a showing as an element of a violation. See Lasswell, 296 Or at 125-27.
In other words, laws restricting expression and those restricting the use of alcohol and tobacco cannot be equated because there is a constitutional provision that constrains the plenary authority of the legislature to enact laws restricting expression, but there is no comparable constraint on the legislature’s authority to enact laws restricting alcohol or tobacco consumption. See, e.g., Tidyman, 306 Or at 188-89. But cf. Or Const, Art I, § 39 (addresses authority of legislature to regulate sale of liquor by the drink). Consequently, the legislature is free to prohibit furnishing alcohol or tobacco to minors without regard to whether those materials harm minors, but it is not equally free to restrict expression that is furnished to minors. Cf. Erznoznik v. City of Jacksonville, 422 US 205, 213-14, 95 S Ct 2268, 45 L Ed 2d 125 (1975) (same principle applies under the First Amendment).
See Berhanu v. Metzger, 119 Or App 175, 850 P2d 373, rev den 318 Or 60 (1993), for an abbreviated discussion of the facts concerning the murder of Mulugeta Seraw and the action brought on behalf of his estate to impose liability on people allegedly responsible for inducing children to join the gang that killed him.
The following exchange is from the play:
“A good pause, ros leaps up and bellows at the audience.
“ros: Fire!
“guil jumps up.
“guil: Where?
“ros: It’s all right — I’m demonstrating the misuse of free speech. To prove it exists. (He regards the audience * * *.) Not a move. They should burn to death in their shoes.”
Tom Stoppard, Rosencrantz & Guildenstern Are Dead 60 (1967).
The dissents do not dispute that conclusion. They base their decision to uphold the law on their conclusion that the law is directed at the effects of expression, rather than against the expression alone. Given that the dissents apparently agree that the law does not come within a well-recognized historical exception, the Edmonds’ dissent’s discussion of history and the presumed intent of the framers of the Oregon Constitution is all beside the point, because history does not bear on whether a law is an effects-based law, which is the issue that divides the majority and the dissents.
The Edmonds’ dissent argues that a decision holding that ORS 167.065(l)(a) violates Article I, section 8, has the effect of violating the constitutional rights of parents to control the expression to which their children are exposed. 138 Or App at 681. The dissent is wrong. The right of parents and guardians to guide the development of their children and the right of people to free expression do not conflict. Both rights impose limits on the government. Neither right serves as a source of authority for the government to take action that otherwise would violate the constitutional guarantees on which the rights are based. Cf Hans A. Linde, Fair Trials and Press Freedom — Two Rights Against the State, 13 Willamette LJ 211, 214-18 (1977) (discussing principle). The legislature can enact laws to assist parents and guardians in raising their children, but the laws must comply with the limitations imposed on the state by the state and federal constitutions.
The Edmonds’ dissent appears to assume that the above example of a law the legislature might enact to protect children against harm is the only law the legislature could craft, and that that law would be inadequate to address the harm that the dissent believes sexually explicit expression causes to children. 138 Or App at 682 & n 11. The dissent is wrong. The example is just that, an example. It is not for us to determine whether, and to what extent, sexually explicit expression harms children, and then to propose laws to address that harm. That is for lawmakers to do. I am confident, however, that the legitimate desire to protect children against sexual exploitation and harm, a desire shared by all members of this court, can be addressed by constitutionally valid laws.
Finally, the Edmonds’ dissent suggests that the Oregon free-speech analysis is an absolutist analysis, the effect of which is to create “absolute freedom in Oregon for adults to furnish pornography to children.” 138 Or App at 678. Here again, the dissent is wrong. As explained at length above, the Oregon analysis allows the state to impose restrictions on furnishing sexually explicit materials to minors. But it must do so through laws that focus on the harm that furnishing the material will cause. All the Oregon analysis does is deny the state the ability to target expression for restriction based on the assumption that the expression will cause harm, requiring, instead, that the state focus on the harm caused by the expression, again absent a well-established historical exception that allows the state to impose the restriction without regard to the harm that the expression will cause.
Furthermore, the Edmonds’ dissent’s discussion of absolutism as an aspect of the interpretation of Article I, section 8, is principally based on a law review article that I wrote. The quotation from that article that the dissent uses to support its thesis does not correctly state what I now understand the Oregon analysis to require of lawmakers, so the quotation has no relevance to the issues presented by this case. The relevant analysis is that stated in the maj ority and concurring opinions, and that analysis establishes that ORS 167.065(l)(a) violates Article I, section 8.
The problem with the law is not confined to its invalidity under Artide I, section 8. Contrary to the Edmonds’ dissent’s view, see 138 Or App at 683 n 12, the law also is invalid under the First Amendment. Oregon’s law appears to be unique among the states, in that it does not include one or more elements of the federal obscenity standard to identify the material that it restricts, or otherwise require the state to show in a prosecution that the material is harmful to minors. Compare ORS 167.060, 167.065(l)(a) with, e.g., Cal Penal Code §§ 313, 313.1 (West Supp 1995) and DC Code Ann § 22-2001(b) (1989) and NY Penal Law §§ 235.20(6), 235.21 (McKinney 1989) and Utah Code Ann §§ 76-10- 1201(11), 76-10-1206 (1995) and Wash Rev Code Ann §§ 9.68.050(2), 9.68.060(3)(d) (West Supp 1994). See generally Oregon Criminal Code of 1971, at 230 (1975). That omission is fatal to the validity of the Oregon law under the First Amendment.