dissenting.
The majority holds that ORS 167.065(l)(a) violates Article I, section 8, of the Oregon Constitution because it impinges on the guarantee of freedom of expression. It reasons that the statute focuses on the content of expression and not on the harmful effects of furnishing pornographic material to minors. I disagree and would hold the statute constitutional.
ORS 167.065(l)(a) provides:
“ (1) A person commits the crime of furnishing obscene materials to minors if, 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[.]”
Defendant challenges the phrases “sexual conduct” and “sexual excitement.” He argues that when those phrases are read in connection with the remainder of the statute, they prohibit expression that is protected under section 8.1 ORS 167.060(10) defines “sexual conduct” as
“human masturbation, sexual intercourse, or any touching of the genitals, pubic areas or buttocks of the human male or female, or the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.”
*672ORS 167.060(11) defines “sexual excitement” as
“the condition of the human male or female genitals or the breasts of the female when in a state of sexual stimulation, Or the sensual experiences of humans engaging in or witnessing sexual conduct or nudity.”
In assessing the constitutionality of a statute, we follow certain general rules. A statute is presumed to be constitutional, and unless the presumption is overcome, the statute must be upheld.
“ ‘When courts are called upon to pronounce the invalidity of an act of legislation, passed with all the forms and ceremonies requisite to give it the force of law, they will approach the question with great caution, examine it in every possible aspect, and ponder upon it as long as deliberation and patient attention can throw any new light upon the subject, and never declare a statute void, unless the nullity and invalidity of the act are placed, in their judgment, beyond reasonable doubt.’ ” Eastern & Western Lbr. Co. v. Patterson, 124 Or 112, 120, 258 P 193, 264 P 441 (1928) (quoting 1 Thomas M. Cooley, Constitutional Limitations 371 (8th ed 1927)).
Under a section 8 analysis, we distinguish between laws that focus on the content of expression and those that focus on the prevention of harmful effects. State v. Robertson, 293 Or 402, 433-36, 649 P2d 569 (1982). A content-based statute is unconstitutional unless a well-established historical exception to the guarantee of freedom of expression existed at the time of the adoption of the constitution such as perjury, solicitation, some forms of theft, forgery, fraud and their contemporary variants.2 As to laws that focus on harmful effects, they can be classified as laws that focus on forbidden effects, but expressly prohibit expression used to achieve those effects, or laws that focus on forbidden effects, but do not refer to expression at all. State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den_US_(1993).
The majority and the concurrence discern no identifiable harm that the statute proscribes. The majority states:
*673“Nowhere does the text of ORS 167.065(l)(a) expressly or by clear inference identify the serious or imminent effects that the state contends the statute is designed to prevent. ORS 167.065(l)(a) is a content-based statute directed solely at prohibiting certain communication with minors.” 138 Or App at 653-54.
At the heart of my disagreement with the majority and the concurrence is their failure to give meaning to what the statute plainly provides. The majority’s approach is to mechanically apply a constitutional construct to the words of the statute without regard to the gravamen of the statute: conduct directed at children. The concurrence would rewrite the law to make it “constitutional” in its view. Both approaches ignore the presumption of constitutionality accorded the statute and the inquiry about what the framers of the constitution intended had they been confronted with this precise question. Both approaches, whether intended or not, imply a core philosophical difference from that held by the constitutional framers about the influence of pornography — that pornography cannot be recognized as inherently harmful to children. There is no question that history demonstrates that the framers believed that the furnishing of pornography to children was inherently harmful to their children’s welfare. That belief may not be shared by all members of our present-day society, but our task is not to reflect their views, but those of the framers of the constitution. With that in mind, I turn to the construct promulgated by the Oregon Supreme Court.3
In Moser v. Frohnmayer, 315 Or 372, 845 P2d 1284 (1993), the court said:
“To be valid as a law that focuses on a harmful effect of speech, the law must ‘specify expressly or by clear inference[4] *674what “serious and imminent” effects it is designed to prevent.’ ” Id. at 379 (quoting Oregon State Police Assn. v. State of Oregon, 308 Or 531, 541, 783 P2d 7 (1989) (Linde, J., concurring) (emphasis supplied).
Moreover, when a statute is directed against a harm that is brought about only “incidentally” by communication, then it cannot be said that its focus is directed at the communication itself. State v. Robertson, 293 Or at 414-15. See, e.g., State v. Garcias, 296 Or 688, 679 P2d 1354 (1984) (holding that a statute making it unlawful to menace another by word or conduct is constitutional under section 8).
ORS 167.065(l)(a) passes constitutional muster under these tests. First, and most importantly, the statute focuses on the protection of a defined group of persons. The statute has three elements: (1) A person must furnish material depicting sexual conduct or sexual excitement; (2) to a minor; (3) knowing or having good reason to know the character of the material furnished. Under the statute, a person may hold an opinion about the virtues of pornographic material, and possess or disseminate those materials to adults to whatever extent one wishes with impunity. It is only when one furnishes the material to a minor that the statute is violated. Even the majority and the concurrence must concede that the focus of the statute is limited to a protected class of people, children.
The focus of statutes like ORS 167.065(l)(a) which prohibit the furnishing, delivery or giving of harmful materials to minors is clearly inferable from their language. They are meant to protect the welfare of a specified class of persons who are deemed incapable of discerning for themselves the harmful effects that could arise from certain activities. For instance, the legislature has provided in ORS 471.410(2) that “no one shall sell, give or otherwise make available any *675alcoholic liquor to a person under the age of 21 years.” Even though the legislature has not expressly described in the statute the harmful effect of alcoholic beverages on minors, it is easily inferable from its language that the legislature deems alcoholic beverages to be harmful to minors because of their immaturity or incapacity to protect themselves from the effects of those kinds of beverages.5
The focus of ORS 167.065(1) (a) is no less discernible. The definitions of “sexual conduct” and “sexual excitement” make it clear that the statute prohibits the furnishing of pornographic material that appeals to the prurient interests of an audience that lacks the maturity or capacity to protect itself from the effects of such materials. Because the majority and the concurrence discern no identification, express or implied, of harmful effects from the language of the statute, it would seem to follow that they do not believe that the definitions of “sexual conduct” and “sexual excitement” encompass material intended to sexually titillate children. Alternatively, the other inference from their opinions is that pornographic material is not per se injurious to the health or welfare of children. In this era of cultural inundation with sexually abused children, teenage pregnancy, deaths of children from AIDS, and the dramatically increased occurrence of sexually transmitted diseases, the average citizen in Oregon will find either alternative incongruous.
It would appear that the majority and the concurrence have abandoned reason in favor of idealism about the subject of freedom of expression under the Oregon Constitution as it applies to speech directed at children. The protections of section 8 were not viewed by its framers, nor have they been viewed by us and the Supreme Court as broadly as the majority and the concurrence assert insofar as children are concerned. Our prior opinions have recognized that pornographic materials have a deleterious effect on the health *676and welfare of minors without the benefit of the legislature expressing the harm that could occur in the language of the statute. In State v. Woodcock, 75 Or App 659, 662, 706 P2d 1012 (1985), rev den 300 Or 506 (1986), and in State v. Frink, 60 Or App 209, 212, 653 P2d 553 (1982), we specifically noted that the dissemination of obscene materials to minors is a more limited right than that with respect to adults, and the state may constitutionally impose stricter controls. In State v. Henry, 302 Or 510, 732 P2d 9 (1987), the court held that a statute prohibiting the dissemination of obscene material to adults was unconstitutional, but provided the following caveat:
“We do not hold that [obscene expression under any definition], like others may not be regulated in the interest of unwilling viewers, captive audiences, minors and beleaguered neighbors. No such issue is before us. * * * 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, manner regulation 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 525.6
Moreover, ORS 165.065(l)(a) has a different emphasis than the language of the statutes that we considered in State v. Stoneman and in State v. Ready, 132 Or App 422, 888 P2d 603, rev allowed 321 Or 137 (1995). In Stone-man, at issue was the constitutionality of ORS 163.380, which prohibits any person from giving value to view or obtain matters depicting sexually explicit conduct by a child. In Ready, the defendant challenged ORS 163.672, which prohibits any person from knowingly possessing any visual depiction of sexually explicit conduct involving a child. We *677held that both statutes violated section 8 because they focused on expression among adults. In contrast, ORS 165.065(l)(a) is aimed at conduct, the furnishing of material to children, that causes an identifiable harm.
Second, when a statute is directed against the pursuit of a forbidden effect, the fact that the means of achieving that effect is through expression does not necessarily render the statute unconstitutional under section 8.
“[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 at 416-17.
Thus, in Garcias, the fact that harm could be brought about by the use of expression did not alter the focus of the statute, which was to forbid attempts to cause an identified harm. Similarly, in State v. Moyle, 299 Or 691, 705 P2d 740 (1985), the court held constitutional under section 8 a statute that made it unlawful to subject another to alarm by conveying a telephonic or written threat to inflict serious physical injury. The court said,
“Harm to another * * * is the focus of the statute. Speech and writing are merely the means, albeit the only prohibited means, of achieving the forbidden effect * * *. Thus, the statute is one focusing on effect rather than speech itself.” 299 Or at 699.
Defendant reasons that because the statute is aimed at the content of the material that causes the harm, the statute must be deemed to focus on expression rather than on harmful effects. That reasoning misses the point of the holdings in Garcias and Moyle. For instance, assume a statute makes unlawful the act of yelling “Fire” in a crowded, dimly lit nightclub. If instead, it was announced, “Free drinks for everyone at the bar,” the statute would not be violated. Although the content of the expression “Fire” is the causative agent of the harm, it is considered for constitutional purposes to be only “incidental” to the identifiable harm *678arising from the uttering of the expression. Such a statute would be held constitutional because its focus is on the proscription of the pursuit or the accomplishment of a forbidden effect: causing people to panic in a public place. Likewise, ORS 167.065(l)(a) focuses on the proscription of the pursuit or the accomplishment of a forbidden effect: the harm caused by the dissemination of pornographic materials to minors.
Nonetheless, even a law aimed at forbidden effects must be scrutinized to determine whether the prohibition of the means of achieving the forbidden effect reaches protected expression. Defendant argues that the reach of ORS 167.065(l)(a) extends to protected expression. Underlying his position is the proposition that section 8 is absolute in the sense that it bars the government from restricting expression even when harmful expression is directed at children. Perhaps the most articulate expression of the thesis underlying that position is found in an Oregon Law Review article:
“[S]ection 8 is absolute, in the sense that it bars the government from choosing to restrict expression as a means to advance some social policy. This principle applies no matter how worthy the objective sought to be achieved by the restriction. The analysis simply does not allow the government, including the courts, to balance the right of free expression against the interests sought to be served by restricting it to determine which is more weighty. Authority to restrict expression must be found in historical restrictions on expression that were intended to survive adoption of the constitutional guarantee, not in a search for a contemporary balance between competing social values.” Rex Armstrong, Free Speech Fundamentalism, 70 Or Law Rev 855, 889 (1991) (emphasis in original; footnotes omitted).
Put into the context of this case, defendant’s proposition, if accepted, means that the constitutional framers would have intended for there to be an absolute freedom in Oregon for adults to furnish pornography to children. That view is inconsistent with the evidence as to what value judgments the framers of section 8 held about the evils of furnishing pornography to children. Before the adoption of section 8, the territorial legislature enacted a statute that encompasses concerns about the effect of erotic materials on minors. The territorial statute made it an offense to:
*679“import, print, publish, sell or distribute any book or any pamphlet, ballad, printed paper or thing containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly to the corruption of the morals of youth * * *.” Statutes of Oregon, 1854, Crimes and Punishments, ch XI, § 10, pp 210-11.
Three years later, section 8 was adopted as part of Oregon’s original constitution. The territorial statute was continued in effect by the Oregon legislature in the first state criminal code written in Oregon in 1864. General Laws of Oregon, ch 48, § 637, p 560 (Crim code) (Deady 1845-64).7
Inasmuch as the guarantee of freedom of expression directed at minors under section 8 was deemed restricted in some respects by the constitutional fathers, it is necessary to decide whether ORS 167.065(l)(a) reaches protected communication by its terms. There are at least two interests involved in the protection of minors from harmful influences. The first is the interest of the state in protecting children who are a captive audience in the sense that they are not possessed of the full capacity for individual choice. Individual choice is the presupposition of the guarantees of freedom of expression. Ginsberg v. New York, 390 US 629, 650, 88 S Ct 1274, 20 L Ed 2d 195 (1968) (Stewart, J., concurring) (holding a New York statute that prohibited the sale of erotic material to those under the age of 17 years constitutional under the First *680Amendment).8 The second is the fundamental right of parents under the Ninth and Fourteenth Amendments,9 to care for and nurture their children:
“Constitutional interpretation has recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. ‘It is cardinal with us that the custody, care and nurture of the child resides first in the parents, whose primary function and freedom include preparation for obligations that the state can neither supply nor hinder.’ Prince v. Massachusetts, [321 US 158, 166, 64 S Ct 438, 88 L Ed 645 (1944)]. The legislature could properly conclude that parents and others, teachers for example, who have this primary responsibility for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Ginsberg, 390 US at 639.
Those interests are both reflected and circumscribed by the scope of ORS 167.065(l)(a). ORS 167.085 provides in part:
“In any prosecution under ORS 167.065 to 167.080, it is an affirmative defense for the defendant to prove:
“(1) That the defendant was in a parental or guardianship relationship with the minor;
“(2) That the defendant was a bona fide school, museum or public library, or was acting in the course of employment as an employee of such organization or of a *681retail outlet affiliated with and serving the educational purpose of such organization.
“(3) That the defendant was charged with the sale, showing, exhibition or display of an item, those portions of which might otherwise be contraband forming merely an incidental part of an otherwise nonoffending whole, and serving some legitimate purpose therein other than titillation * *
First, the statutory scheme defines certain roles, parents, guardians, teachers, librarians, to which ORS 167.065(l)(a) does not apply. Second, it excludes those materials which contain incidental depictions of “sexual conduct” or “sexual excitement” that are furnished to the minor for purposes other than sexual stimulation. The sweep of the germane statutes protects from prosecution those who have a legitimate role or interest in the welfare of children, while subjecting those with prurient motives to prosecution. Second, the language of the statute implies that it is not aimed at proscribing what expression is suitable for children, but is intended to support the “rights of parents to deal with the morals of their children as they see fit.” See also Ginsberg v. New York, 390 US at 639 n 7 (quoting Louis Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum L Rev 391, 413 n 68 (1963)). The ability of parents or guardians to choose what materials their children or wards are subjected to is paramount to an exercise of “family rights” under the Ninth and Fourteenth amendments.
Consequently, the statute preserves the right of parents and guardians to monitor the materials to which their children and wards are exposed and to exercise their constitutional rights to protect them from harm. Even though a relative or a well-meaning person may have the best interests of a child at heart, only a parent or guardian is accorded the right under the constitutions to determine what expression is suitable for a particular child under their control. The choice of what expression children are exposed to is a fundamental choice which the state and federal constitutions permit parents and guardians to make regardless of how it may infringe on the guarantees of expression by others. The absolutist’s position, when taken to its logical extension, violates a parent’s or guardian’s constitutional rights by endowing all *682individuals with an unrestricted right to furnish expressive materials to children.
In summary, I disagree with the majority’s assertion that ORS 167.065(l)(a) is a law that focuses on expression rather than harmful effects. Under section 8, a law is constitutional if, by clear inference, it identifies the effects that it is intended to address. One need only consider the audience protected under the statute and read the statutory definitions of “sexual conduct” and “sexual excitement” to comprehend the identifiable harm that the legislature has sought to address. Moreover, the statute does not reach protected expression. The majority fails to recognize that children are a protected class, that pornography is harmful to children and that harmful communication directed at children can be constitutionally restricted by the state, parents, and guardians.
The concurrence would mandate that the legislature require and the state prove an actual effect on the victim.10 Such a requirement would effectually emasculate any effort of parents and the legislature to protect the children of Oregon from the pervasive energy of porn*683ography.11 Regardless, that policy choice is not ours as a court to make. The legislature has spoken, and our only inquiry is whether what they have enacted passes constitutional muster. For the reasons expressed, the majority and the concurrence simply cannot be correct in their interpretation of section 8. When ORS 167.065(l)(a) is read in context with the other statutes that define its reach, it is apparent that the legislature has acted constitutionally to protect this state’s children from the harmful influences of pornographic material.12
De Muniz, J., joins in this dissent.Defendant does not argue that no identifiable harm arises if a minor is furnished with materials depicting “sadomasochistic abuse” because he says that the allegations made against him do not “hint” that the materials that he furnished fall within that definition. ORS 167.060(9) provides:
“ ‘Sadomasochistic abuse’ means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume, or the condition of being fettered, bound or otherwise physically restrained on the part of one so clothed.”
The indictments allege the materials were furnished to three different children and depicted ‘ ‘sexual intercourse, a male touching a female vagina with his mouth, a female touching a male penis with her mouth, or an erect male penis.”
In State v. Stoneman, 132 Or App 137, 888 P2d 39 (1994), rev allowed 321 Or 94 (1995), this court held that there was no well-recognized historical exception for the regulation of child pornography at the time of the adoption of section 8.
Both approaches make it impossible for the state to effectively regulate purveyors of pornography to children. For a thorough analysis on the effects of pornography on children, see United States Department of Justice, Attorney General’s Commission on Pornography, Final Report (July 1986).
The major flaw in the majority’s and the concurrence’s rationale is the refusal to confront the meaning of the Supreme Court’s language in Moser, that a law may specify the harm “by clear inference.” This defect is especially clear from the concurrence’s analysis, which, in effect, disregards the “clear inference” language in Moser. According to the concurrence:
“[T]he Oregon analysis requires lawmakers to adopt restrictions on speech that focus on the harmful effects against which the restrictions are addressed. That *674fact, that the targeted speech produced, or would produce, the harmful effects that the state sought to prevent in enacting the laws. * * *
“[The Oregon analysis] 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.” 138 Or App at 659.
Thus, according to the concurrence, the law is valid only if the legislature makes a harmful effect an element of the offense. In contrast, I believe the harmful effect on children of furnishing pornography to them to be self-evident, and thus, the harmful effect is expressed by clear inference in the language of the statute.
Other analogous statutes are ORS 475.995, making it unlawful “to deliver” controlled substances to a person under 18 years of age, and ORS 163.575(l)(d), which provides that a person commits the crime of endangering the welfare of a minor if the person “distributes, sells, or causes to be sold tobacco in any form to a person under 18 years of age.” If, for example, a statute made it unlawful to furnish a loaded firearm to a child under the age of ten, without expressing the harm that could result thereby, there would be no difficulty in discerning the potential harm created by the prohibited act.
The concurrence states that I fail to distinguish between
“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.” 138 Or App at 662.
However, my analysis takes into consideration something that both the majority and the concurrence fail to consider — the significance of the particular audience that the statute is intended to protect. According to their respective analyses, the fact that the statute expressly limits the audience to whom the offense pertains has no significance to our analysis of the statute under Article I, section 8. As the language in Henry suggests, the audience to be protected does play a role in deciding whether a law focuses on the content or effect of expression.
Governmental concern about the effect of some kinds of expression on the morals of youth was evidenced as early as 1699 in the English case of Rex v. Hill, Mich 10 W 3. See Rex v. Curl, 93 Eng Rep 487 (1727). That concern traveled to America with those who settled this country. For instance, in 1711, the colony of Massachusetts enacted a statute making expression unlawful that “corrupt the mind and are incentives to all manner of impieties and debaucheries.” In Commonwealth v. Sharpless, 2 Serg & Rawle 91 (Pa 1815), the defendants were indicted for exhibiting a painting that was “to the manifest corruption and subversion of youth.” Also, in Commonwealth v. Holmes, 17 Mass 336 (1821), the court recognized a common law offense of obscenity. The indictment in that case accused the publisher of a book of
‘ ‘contriving, devising, and intending the morals of youth as well as other citizens of said commonwealth to debauch and corrupt, to raise and create in their minds inordinate and lustful desires.” 17 Mass at 336.
The Oregon territorial statute appears to have been patterned after an 1836 Massachusetts statute that prohibited the sale, distribution or publication of printed matters “manifestly tending to the corruption of the morals of youth.” 1836 Mass Rev Stat 740. The majority’s absolutist position, insofar as unlimited expression toward minors is concerned, does not survive historical scrutiny.
In FCC V. Pacifica Foundation, 438 US 726, 98 S Ct 3026, 57 L Ed 2d 1073 (1978), the Court said:
“The Court has recognized society’s right to ‘adopt more stringent controls on communicative materials available to youths than on those available to adults.’ * * * This recognition stems in large part from the fact that ‘a child ... is not possessed of the full capacity for individual choice which is the pre-supposition of First Amendment guarantees.’ * * * Thus children may not be able to protect themselves from speech which, although shocking to most adults, generally may be avoided by the unwilling through the exercise of choice.” Id. at 757-58 (citations omitted).
“The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed ‘essential,’ * * * ‘basic civil rights of man,’ and ‘Mights far more precious . . . than property rights.’ * * * The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, * * * the Equal Protection Clause of the Fourteenth Amendment, * * * and the Ninth Amendment * * Stanley v. Illinois, 405 US 645, 651, 92 S Ct 1208, 31 L Ed 2d 551 (1972) (citations omitted).
The concurrence relies on City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), as support of its argument that every law limiting expression must include the harm to be prevented as one of the elements to be proven. In Tidyman, the issue was whether a city could regulate the zoning of “adult” businesses. The ordinance was prefaced with a list of findings regarding the inherent incompatibility between “adult” businesses and residential zones. The court said that the findings were vague and conclusoiy, and then stated:
“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 does not apply only when these adverse effects are shown to occur or imminently threaten to occur. * * * By omitting the supposed adverse effects as an element in the regulatory standard, the ordinance appears to consider the ‘nuisance’ to be the characteristics of the ‘adult’ materials rather than secondary characteristics and anticipated effects of the store. Such lawmaking is what Article I, section 8, forbids.” Id. at 185-86 (footnotes omitted).
It does not follow from the language in Tidyman that ORS 167.065(l)(a) is unconstitutional as the concurrence asserts. 138 Or App at 667. Tidyman is about the sale of “adult material” to a general audience in a designated geographical area. That factor alone makes it significantly different from this case. ORS 167.065(l)(a) includes within the elements of the crime the self-evident harmful effects that the city’s ordinance lacked because it specifies children as the protected audience and defines pornographic material by the words “sexual conduct” and “sexual excitement.”
The concurrence suggests that the statute’s prohlem could be solved by adopting a law that prohibits communicating with minors for the purpose of inducing them to engage in unlawful sexual conduct. However, such a law does not address the main concern of the statute — a minor’s exposure to pornographic material. The harmful effects of such exposure occur regardless of the offender’s intent to induce the child to engage in unlawful sexual conduct.
ORS 163.065(l)(a) is constitutional also under the First Amendment. See Ginsberg v. New York (recognizing the right of state legislatures under the federal constitution to enact statutes that prohibit the dissemination of erotic materials to minors).