dissenting.
Defendant is charged under ORS 167.065(l)(a) with unlawfully and knowingly furnishing to three minor children “a picture, photograph, or other visual representation or image depicting 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, knowing or having good reason to know the character of the material furnished.” The majority holds that ORS 167.065(l)(a) is unconstitutionally overbroad because it unlawfully restricts defendant’s freedom of protected expression under Article I, section 8, of the Oregon Constitution. Judge Landau, in a thoughtful dissent based on exhaustive research, correctly points out that defendant’s conduct falls within a historical exception to section 8. I agree with his conclusion.
I write to share some additional commonsense observations about what history tells us regarding how the people of the State of Oregon would have regarded defendant’s conduct at the time of the adoption of the constitution. *157My beginning point is the language of ORS 167.065(l)(a). The statute 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[.]”
ORS 167.060 furnishes definitions for ORS 167.065(l)(a):
“(3) ‘Furnishes’ means to sell, give, rent, loan or otherwise provide.
«* * * * *
“(5) ‘Nudity’ means uncovered, or less than opaquely covered, post-pubertal human genitals, pubic areas, the post-pubertal human female breast below a point immediately above the top of the areola, or the covered human male genitals in a discernibly turgid state. For purposes of this definition, a female breast is considered uncovered if the nipple only or the nipple and areola only are covered.
«* * * * *
“(9) ‘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.
“(10) ‘Sexual conduct’ means 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.
“(11) ‘Sexual excitement’ means the condition of 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.”
*158Article I, section 8, provides, in part:
“No 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 abuse of this right.”
The original Oregon Constitution, of which section 8 is a part, was written by a convention of 60 delegates chosen from the citizens of the territory. The convention met in August 1857. Thereafter, it was approved by a vote of the people. On February 14, 1859, Congress acted to admit Oregon into the Union, and on that date, section 8 went into effect. Section 8
“forecloses the enactment of any law written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication unless the scope of the restraint 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.” State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982).
The “bottom line” question in this case is whether the people of this state in 1859 would have considered the proscription of ORS 167.065(l)(a) on its face to have infringed on the guarantees of section 8. The analysis of the answer to that question begins with an understanding of how a historical exception operates within the framework of section 8. “In principle, * * * a claim of‘overbreadth’ asserts that the terms of a law exceed constitutional boundaries, purporting to reach conduct protected by guarantees such as, for instance, Oregon Constitution, article I, section 8 (freedom to speak and write)[.]” Id. at 410. “If a law concerning free speech on its face violates [section 8], it is unconstitutional; it is not necessary to consider what the conduct is in an individual case. If the law is not unconstitutional on its face, it nevertheless might be applied in a manner that would violate [section 8].” State v. Spencer, 289 Or 225, 228-29, 611 P2d 1147 (1980).
The methodology in analyzing section 8 issues can be found in cases like State v. Moyle, 299 Or 691, 705 P2d 740 (1985). In deciding whether a statute prohibiting harassment *159infringed on freedom of expression, the court first examined whether the statute on its face was a law
“whose very enactment was forbidden by Article I, section 8[.] * * * Even when a law by its terms restricts the right to speak, we have held that it does not, on its face, violate our state constitutional guarantee if the crime was one well established at the time our constitutional guarantee was enacted and demonstrably outside the aims of the guarantee of freedom of expression, or if the statute as written proscribes some effect, rather than communication itself. State v. Robertson, [ ] 293 Or at 412, 416; State v. Garcias, 296 Or 688, 689, 679 P2d 1354 (1984).” Moyle, 299 Or at 695-96 (emphasis added).
After concluding that the law in question did not fall within a historical exception, the Moyle court then turned to the focus of the law and inquired whether it was a law directed against speech or at preventing a forbidden effect. Id. at 697. Having concluded that the law focused on effect rather than speech itself, the court next posed the question of whether the effect of the law could be proscribed under section 8. Id. at 699. It noted that when a statute defines a crime that results only from expression, its potential reach must be “scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such ‘overbreadth’ ” by a narrowing construction. Id. at 702 (quoting Robertson, 293 Or at 418).
Under an appropriate analysis, the lead opinion’s overbreadth analysis is never reached if the language of ORS 167.065(l)(a) falls wholly within a historical exception. By definition, a law that in whole reflects a historical exception to protected speech could not infringe on protected expression. Therefore, there can be no need to further scrutinize a challenged law if in fact it constitutes a historical exception to the guarantees of section 8. Just as statutes that embody the historical exceptions of peijury, solicitation of criminal conduct and some forms of theft, forgery and fraud are statutes that are aimed at harmful effects and, therefore, are not subject to an overbreadth analysis, so too is ORS 167.065(l)(a) historical exception not subject to an overbreadth analysis.1
*160In that light, would the people of this state in 1859 have believed that the furnishing of visual depictions to children that portray sadomasochistic abuse, sexual conduct or sexual excitement by someone, other than those who qualify under the statutory exemptions,2 to have been protected expression under section 8? The inquiry is solely one of examining historical fact in light of the information available to us from the period surrounding 1859. “The first part of the Robertson test for determining whether a restriction on expression comes within a historical exception focuses on whether the restriction was well established when the early American guarantees of freedom of expression were adopted[.]” State v. Henry, 302 Or 510, 515, 732 P2d 9 (1987). “The second part of the Robertson test determines whether Article I, section 8, was intended to eliminate that restriction.” Moser v. Frohnmayer, 315 Or 372, 376, 845 P2d 1284 (1993).
Judge Landau’s research demonstrates unequivocally that restrictions on expression that were harmful to children or that “tended to corrupt the morals of youth” were uniformly believed by nineteenth-century Americans not to *161infringe on protected expression. The Judeo-Christian ethics and traditions reflected by a majority of the populace at that time esteemed and promoted the value of protecting young people from deleterious influences with the same vigor that they condemned perjury, solicitation to commit crimes, theft and fraud. It is hard to imagine a more conventional, fundamental belief held by that society than a belief that children should be protected from those who would endeavor to encourage them to become involved in prurient behavior.
Moreover, it is undeniable that both the territorial legislature and the Oregon Legislature during the time of the adoption of section 8 were concerned about the furnishing of materials that were manifestly intended to corrupt the morals of youth as were numerous other state legislatures. To assert that such a concern was not “conventional” or that section 8 was intended to eliminate such restrictions is to controvert established historical fact. Chapter XI, section 10, of the Statutes of Oregon 1854, pp 210-11, and the same provision of the Statutes of Oregon 1855, Chapter XI, section 10, p 234 (Deady 1855), are illustrative of how such concerns were embodied by statutes. They provided:
“If any person shall 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, or shall introduce into any family, school or place of education, or shall buy, procure, receive, or have in his possession, any such book, pamphlet, ballad, printed paper or other thing, either for the purpose of loan, sale, exhibition or circulation, or with intent to introduce the same into any family, school, or place of education, he shall, on conviction, be punished by imprisonment in the county jail not more than six, nor less than three months, or by a fine not more than three hundred dollars, nor less than fifty dollars.”
The identical statute was enacted by the state legislature in 1864 after the adoption of the constitution.
The reach of ORS 167.065(l)(a) is even more restricted than the reach of earlier Oregon statutes that made it unlawful to “introduce [obscene material] into any *162family, school or place of education[.]” As the Supreme Court has consistently pointed out in Henry, 302 Or at 525, and State v. Stoneman, 323 Or 536, 543 n 7, 920 P2d 535 (1996), its rejection of a historical exception based on those earlier statutes for a prohibition on furnishing obscene material to consenting adults does not foreclose their pertinence to furnishing materials to children. ORS 167.065(l)(a) is directed solely at the harm of furnishing obscene material to children, and defendant is charged with furnishing pornography to children. It may be that the earlier statutes as they pertain to obscene material unconnected to children could not have withstood scrutiny under section 8. However, that possibility does not impinge on the consideration of 1859 societal attitudes concerning children and the effect of pornography on them. This concern about the corruption of the morals of youth in the earlier Oregon statutes and their contemporaries is a consistent and common statutory theme that, in my opinion, affords compelling evidence that such a historical exception exists.
The question becomes: What would a modern day statute reflecting the historical exception under section 8 prohibiting the furnishing of materials that manifestly tend to corrupt the morals of youth look like? An examination of the texts of the territorial and 1864 statutes provide clues: (1) The statute would have to prohibit expression directed toward minors; (2) The statute would have to proscribe materials that “manifestly” tend to corrupt the morals of minors; (3) The statute would have to be restricted to expression that fell within the public’s understanding of the word “obscene.”
The next step is to compare the elements of ORS 167.065(l)(a) with the above elements. Both statutes encompass the furnishing of material that will affect minors, who are deemed not to have the maturity to consent or to respond appropriately to sexually stimulating materials. The phrase “manifestly tending to corrupt the morals of youth” in the earlier statutes suggest that under some circumstances, expression that otherwise was considered “harmful” would be exempt from proscription when such expression did not have the effect of corrupting the morals of youth. For example, depictions of sexual conduct used for purposes of teaching human sexuality in a proper setting would not have the *163harmful effect that is contemplated by the statutes. In comparison, the exemptions to ORS 167.065(l)(a) under ORS 167.085 embody similar concepts when the corrupting influence of sexual titillation is absent.
The final element involves a comparison between the element of “obscenity” in the earlier statutes and the definitions of “sadomasochistic abuse,” “sexual conduct” and “sexual excitement.” The word “obscene” is a word that has caused courts much difficulty in defining. Apparently, the majority seizes on that difficulty as an alternative means to reject the assertion that a historical exception for furnishing pornography to children exists. But it does not necessarily follow that, because some definitions of historical obscenity lack certainty, all definitions are unascertainable. Rather, each case needs to be decided within its own historical context. For instance, the fact that the Supreme Court in Henry ruled that restrictions on obscene expression involving consenting adults were not well established at the time of adoption of section 8 says little about the nature of restrictions on expression to children. This case requires us to reason anew about what kind of understanding the people of the State of Oregon would have had in mind about the meaning of the word “obscene” insofar as children are concerned when they voted for the adoption of the constitution. Whatever else were the parameters of the meaning of the word “obscene” at that time, it cannot be reasonably debated from the historical information that a nineteenth-century elector in Oregon would have considered depictions of human masturbation, sexual intercourse, the touching of genitals or intimate sexual body parts, sexual stimulation and sexual flagellation or torture to be included within its meaning. Consequently, all of the core elements of the early statutes are wholly contained within the prohibitions of ORS 167.065(l)(a), regardless of what disputes may exist regarding whether other expressions were considered obscene.
The above comparison leads me to ask rhetorically: If ORS 167.065(l)(a), as limited by its definitions of prohibited depictions and exemptions thereto, does not embody an established historical exception under section 8, is it possible to conceive of a different statute that could constitutionally prohibit the furnishing of pornography to children? For me, *164there are only two possible answers to the issue posed by this case. Either ORS 167.065(l)(a) is wholly embodied within the historical exception or there is no protection available for our children from those who would furnish pornography to them of the kind described here. Because I enjoy Oregon history, I occasionally wander through the pioneer cemeteries in Polk County and reflect on what life must have been like in the “Garden of Eden”3 at the time of statehood. Based on my understanding of their beliefs and values, it is hard for me to imagine that the pioneers buried in those cemeteries would even be having the debate in which this court finds itself embroiled.
I dissent.
The lead opinion relies on the holding in State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den 508 US 974 (1993), for the assertion that the historical *160exception analysis applies only to statutes that focus exclusively on the content of expression. The lead opinion reads too much into the opinion in Plowman. Plowman undertook to initially analyze whether the statute at issue in that case focused on content of speech or proscribed forbidden results of speech because there was no historic exception issue before the court. As the Robertson court pointed out, 293 Or at 412, the analysis forks depending on whether there is a putative historical exception. When there is no historical exception available, then the analysis turns first to whether the statute proscribes content of speech or only effects from speech. If a historical exception applies, it can make no difference to the order of the methodology of analysis because section 8 is never implicated.
ORS 167.085 provides that it is a defense to any prosecution under ORS 167.065( 1) that the defendant was in a parental or guardianship relationship with the minor to whom the materials were furnished. Other exemptions include individuals acting on behalf of “bona fide schoolM, museumfsl or public librarles!” and when the furnishing serves a purpose other than sexual titillation. The lead opinion concedes that the provisions of ORS 167.085(3) serve to identify ORS 167.065’s purpose of being aimed at the unlawful forbidden effect of sexual titillation of minors. 168 Or App at 126. Nonetheless, it views the statute as inadequate to protect expression not intended for sexual titillation. 168 Or App at 127 n 13. However, ORS 167.085 clearly exempts material from prosecution that serves “some legitimate purpose therein other than titillationM” None of the examples in Judge Armstrong’s concurrence involves furnishing for the purpose of sexual titillation. In my view, the breadth of the exemptions in ORS 167.085 operate with the provisions of ORS 167.065 to circumscribe the reach of ORS 167.065 so as to bring it wholly within a historical exception to protected expression.
Historical journals of the Oregon pioneers and promotional materials often referred to the Oregon territory as the “Garden of Eden” in the 1840s and 1850s.