concurring.
I agree with the majority that the speech protections of Article I, section 8, of the Oregon Constitution, present no impediment to the award of punitive damages in this claim for common-law fraud. In my view, however, it is unnecessary to reach the question of whether the tort of fraud is an historical exception to the constitutional speech protections, because it is not a law directed to “the substance of any ‘opinion’ or any ‘subject’ of communication,” for which punitive damages would otherwise be prohibited.
In Huffman and Wright Logging Co. v. Wade, 317 Or 445, 857 P2d 101 (1993), the court drew a distinction between torts, such as defamation, that have as one of their elements the content of speech or writing, Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979), and torts, such as intentional infliction of severe emotional distress, Hall v. The May Dept. Stores, 292 Or 131, 146-47, 637 P2d 126 (1984), and intentional interference with an economic relationship, Lewis v. Oregon Beauty Supply Co., 302 Or 616, 733 P2d 430 (1987), that do not have the content of speech or writing as one of their elements, but *704that readily can be committed by speech, as well as by conduct, or a combination of the two. 317 Or at 455.1 believe the court was making a distinction between torts that can only be committed by speech and torts that can be committed by speech or conduct. The tort of fraud is within the second of those two categories, because it does not have as one of its elements the content of speech or writing. It can be committed by speech or conduct, or a combination of the two.
As the majority’s quote from Prosser and Keeton, Handbook on the Law of Torts 736 (5th ed 1984), explains, fraud is a tort that can, but need not, be committed by speech or writing. A nondisclosure of material facts is also actionable as a misrepresentation. Elizaga v. Kaiser Found. Hospitals, 259 Or 542, 487 P2d 887 (1971). It is true, as the majority notes, that a nondisclosure is actionable as fraud only to the extent that it misrepresents, but in my view, that type of misrepresentation is not an “opinion or subject of communication” that would, or should be protected as speech under State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Most volitional human conduct has a purpose; I would not say, however, that every purpose of human conduct is protected as an expression of opinion or the subject of a communication. An omission is not a communication at all; it is a noncommunication, and it is the noncommunication that results in the misrepresentation. To the extent that an omission has as its purpose the creation of a misrepresentation, it is not the type of conduct that is protected as speech. Because the tort of fraud can be committed other than by speech, and because it does not have as one of its necessary elements the content of speech or writing, I would hold that punitive damages are recoverable.
Finally, I would not dismiss quite so readily as the majority the Supreme Court’s footnote regarding the application of the historical exception “in the context of analyzing a criminal law .’’ Huffman, 317 Or at 457 n 10. I strongly suspect that that note means, more than inferentially, that the historical exception is applicable in the criminal context, but not in the civil context. Unlike the majority, I can see a rationale for limiting the historical exception to the criminal context: Speech or conduct, otherwise protected by constitutional guarantees of expression, should be subject to penalty *705because of an historical prohibition only if the conduct offends society’s sensibilities to the point of justifying criminal sanctions. The historical exception was, after all, first noted in Oregon in the criminal context. Although the exception has been discussed by the Supreme Court in other than criminal cases, I am not aware of any case in which it has been applied to uphold a civil penalty, such as punitive damages. I would not make this one the first.