concurring in part and dissenting in part.
For reasons explained below, I dissent from the majority’s conclusion that ORS 167.062 falls wholly within a historical exception to Article I, section 8, of the Oregon Constitution. ORS 167.062, as written, infringes on protected *32expression, in violation of Article I, section 8. Therefore, I would reverse defendant’s convictions for promoting unlawful sexual conduct in a public show. However, for different reasons from those given by the majority, I agree that Article I, section 8, does not shield defendant from his conviction for promoting prostitution and, accordingly, would affirm that conviction.
Defendant was charged with and convicted of promoting unlawful sexual conduct in a public show, ORS 167.062, and promoting prostitution, ORS 167.012. He argued in the trial court that both statutes are unconstitutional in that they violate his free expression rights under the state and federal constitutions. Specifically, defendant argued that ORS 167.062 is overbroad and, hence, facially invalid under Article I, section 8, and that both statutes are unconstitutional as applied to his case. The trial court rejected defendant’s arguments, as does the majority here. As explained below, I would hold that ORS 167.062 is unconstitutionally overbroad under Article I, section 8, and reverse defendant’s conviction under that statute.
ORS 167.062 provides, in part:
“(3) It is unlawful for any person to knowingly direct, manage, finance or present a live public show in which the participants engage in * * * sexual conduct.
* * * *
“(5) As used in * * * this section unless the context requires otherwise:
“(a) ‘Live public show’ means a public show in which human beings, animals, or both appear bodily before spectators or customers.
“(b) ‘Public show’ means any entertainment or exhibition advertised or in some other fashion held out to be accessible to the public or member of a club, whether or not an admission or other charge is levied or collected and whether or not minors are admitted or excluded.”
ORS 167.060(10) defines “sexual conduct” for purposes of ORS 167.062 as follows:
*33“ ‘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.”
No question is raised as to whether defendant presented a “live public show,” or whether the performers engaged in “sexual conduct,” as those terms are defined by statute. The only question is whether ORS 167.062 is unconstitutionally overbroad because the “sexual conduct” defined in ORS 167.060(10) encompasses protected expressive activity under Article I, section 8.
This court previously has addressed similar issues and applied the test enunciated in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), to statutes and ordinances that concern so-called “adult entertainment.”1 Those earlier cases *34demonstrate how “sexual conduct,” as defined in ORS 167.060(10), is to be treated under the Robertson framework. In order to put the present case into its proper legal context, I review that prior case law in some detail.
In our initial opinion in State v. House, 66 Or App 953, 957, 676 P2d 892, on recons 68 Or App 360, 681 P2d 173 (1984), afpd on other grounds 299 Or 78, 698 P2d 951 (1985), we held that ORS 167.062 was overbroad because it prohibits expression that is protected by Article I, section 8. In that case, a male stripper danced among tables while audience members touched his buttocks and genitals and placed money in his G-string. Id. at 955-56. We observed:
“In ballets, operas, musicals and dramas, whether tragic, comic or satirical, one performer, either in human or animal costume, may touch the buttocks, breasts or genitals of another performer. The other person touched may, as part of the performance, respond so that a reasonable person in the audience will perceive that the performer touched is sexually stimulated or gratified. To a reasonable person, the touching is ‘in an act of apparent sexual stimulation or gratification.’ That is the message that the performers seek to convey. It is touching that the statute makes criminal. It is also expression that is protected by Article I, section 8. Live public shows that would fall under the sweep of the statute include Shakespeare’s ‘Romeo and Juliet,’ the musicals ‘South Pacific,’ ‘Hair,’ and ‘Oh! Calcutta,’ the ballets ‘Swan Lake,’ and ‘Leda and the Swan,’ and Tennessee Williams’ dramas ‘Sweet Bird of Youth’ and ‘Cat on a Hot Tin Roof.’ ” Id. at 958.
On reconsideration, we narrowed our holding to the facts of the case, concluding that the portion of the statute concerning “any touching of the genitals, pubic area or buttocks * * * in an act of apparent sexual stimulation or gratification” was overbroad but that that portion of the statute was severable from the remaining portions concerning “human masturbation” and “sexual intercourse.” House, 68 Or App at 365. On review, the Oregon Supreme Court declined to reach the constitutional question, declaring instead that the state had failed to prove an element of the crime because there was no evidence that “defendant ever *35engaged in an act of apparent sexual stimulation or gratification,” House, 299 Or at 82, and there “was no evidence that defendant was sexually stimulated or gratified by the touching of women customers * * Id.2
We have subsequently adhered to our constitutional holding in House. In City of Portland v. Gatewood, 76 Or App 74, 708 P2d 615 (1985), rev den 300 Or 477 (1986), we distinguished an ordinance prohibiting indecent exposure from the statute at issue in House, because it was susceptible to a narrowing interpretation that would render it constitutional. We noted that “the statute under consideration in House directly and primarily burdened speech. No limiting construction was possible.” Id. at 82 n 5. In Sekne v. City of Portland, 81 Or App 630, 637, 726 P2d 959 (1986), rev den 302 Or 615 (1987), we cited House and Gatewood for the proposition that “[n]udity alone does not take dance out of the realm of protected expression.” We concluded that the ordinance at issue in that case, which prohibited exposure of genitalia in the course of a stage or floor show, was not susceptible to a narrowing interpretation and thus was overbroad because it reached protected expression. Id. at 640. Finally, in State v. Maynard, 138 Or App 647, 910 P2d 1115 (1996), vacated and remanded 327 Or 582, 964 P2d 264 (1998), adhered to on remand 168 Or App 118, 5 P3d 1142 (2000), rev den 332 Or 137 (2001), we relied on House, as well as State v. Henry, 302 Or 510, 732 P2d 9 (1987).3 Maynard is particularly important to our analysis in the present case because the Maynard decision on remand was made in light of the Oregon Supreme Court’s pronouncements on the application of the Robertson test in State v. Stoneman, 323 Or 536, 920 P2d 535 (1996).
In Maynard, the statute at issue concerned furnishing obscene materials to minors and incorporated the same definition of “sexual conduct” that is at issue here. ORS *36167.065(1). In our first opinion, we noted that, after House, the definition of “sexual conduct” included only “human masturbation” and “sexual intercourse.” 138 Or App at 652. Nonetheless, we concluded that a content-based restriction on distributing materials to minors that depicted “sexual conduct” could not “be justified by either a historical exception or by the purpose of preventing an identified actual effect or harm.” Id. at 656.
The Oregon Supreme Court remanded Maynard to this court for reconsideration in light of Stoneman. The court in Stoneman held that a statute could have a purpose of preventing harmful effects even if it “did not describe the communication, the commerce in which is forbidden, specifically in terms of harmful effects.” 323 Or at 545. In light of Stoneman, we concluded in our second decision in Maynard that ORS 167.065(1) did, in fact, forbid harmful effects. Maynard, 168 Or App at 133. But we continued:
“However, the statute does prohibit expression that is protected, and it may not be narrowed through judicial interpretation to remedy that defect. Therefore, we hold that ORS 167.065(1) ‘impermissibly restricts the right to speak, write, or print freely on any subject whatever under Article I, section 8, of the Oregon Constitution. It is unconstitutional.’ Fidanque [v. Oregon Govt. Standards and Practices], 328 Or [1,] 9, [969 P2d 376 (1998)]rid.
These cases necessarily lead to the conclusion that “sexual conduct” as defined in ORS 167.060(10), even as limited by the court in House, may be expressive. The state does not argue otherwise on appeal. Rather, in urging us to disavow the House line of cases, the state argues that the proper question is whether the statute at issue focuses on the content of expression or whether the statute in fact focuses on conduct. The state posits that under ORS 167.060(10) “sexual conduct,” i.e., “sexual intercourse” and “human masturbation” is necessarily and primarily conduct, and the fact that it may under some circumstances be expressive does not mean that a statute proscribing the conduct is facially invalid as directed at the content of expression.
The state’s argument is sound, as far as it goes. There is nothing inherently or necessarily expressive about *37sexual intercourse or masturbation. I agree with the state’s general proposition that otherwise forbidden conduct cannot bring itself within the protections of Article I, section 8, merely because the person performing the forbidden conduct is doing so as a form of expression. See generally Huffman and Wright Logging Co. v. Wade, 317 Or 445, 452, 857 P2d 101 (1993) (a person’s reason for engaging in punishable conduct does not transform conduct into protected expression, nor does speech accompanying punishable conduct transform such conduct into protected expression). That unremarkable proposition, however, does not save the statute at issue here. The statute under which defendant was prosecuted did not attempt to prohibit “sexual conduct” in the form of sexual intercourse or masturbation generally; it prohibited the presentation of a “live public show in which the participants engage in * * * sexual conduct.” ORS 167.062(3) (emphasis added). In short, the gravamen of the offense is not the “sexual conduct,” which, under most circumstances, is perfectly lawful, but it is the conduct when, and only when, performed in the context of a “live public show.” As noted above, a “live public show” is one in which performers appear before spectators or customers. ORS 167.062(5)(a). Moreover, a “public show” is something that provides “entertainment or exhibition.” ORS 167.062(5)(b). Thus, while “sexual conduct,” as defined in those statutes, is not inherently expressive or communicative, “sexual conduct” that is performed before spectators or customers for entertainment or exhibition is inherently communicative.
In sum, ORS 167.062 prohibits sexual conduct only in the context of live public shows. It is irrelevant that sexual conduct is not necessarily or inherently expressive, because the statute does not prohibit sexual conduct in general. The statute seeks only to prohibit sexual conduct in the context of a “live public show,” and live public shows are inherently expressive. Thus, ORS 167.062 is “written in terms directed to the substance of’ a subject of communication, Robertson, 293 Or at 417, and violates Article I, section 8, unless it falls wholly within a well-established historical exception to Article I, section 8.4
*38The state suggests that the House line of cases should be overturned because there is, in fact, a historical exception to the protections of Article I, section 8, for live public shows involving sexual conduct. The state points to an Oregon territorial statute, An Act to Define Crimes and Misdemeanors, and Regulate Criminal Proceedings, chapter 11, section 8 (1854), which provided:
“Every person who shall keep a house of ill fame, resorted to for the purpose of prostitution or lewdness, on conviction, shall be punished by imprisonment in the county jail not more than one year, nor less than six months, or by fine not exceeding five hundred, nor less than one hundred dollars.”
The court in Henry, however, rejected a very similar argument. As noted, Henry involved the constitutionality of a statute prohibiting the dissemination of obscene materials. 302 Or at 512. The state argued that a historical exception to the protections of Article I, section 8, existed as to such materials, given the existence of an 1854 statute that prohibited distribution of certain materials “containing obscene language or obscene prints, pictures, figures, or other descriptions, manifestly tending to the corruption of the morals of youth [.]” Id. at 522. The court rejected that argument, noting that the statute in question contained no definition of obscenity and concluding that it “certainly does not constitute any well-established historical exception to freedom of expression and * * * is in no way equivalent of statutes punishing libel, perjury, forgery and the like.” Id.
A similar problem exists here. The 1854 statute in question contains a generic reference to “lewdness.”5 The term “lewdness,” like the term “obscene” discussed in Henry, is not susceptible to ready definition. Lewdness has been defined as “[t]he unlawful indulgence of lust; fornication, or adultery,” as well as “[l]icentiousness; shamelessness.” Noah Webster, 2 An American Dictionary of the English Language (1828). According to an early law dictionary, lewdness was “[a] general term for conduct involving or expressing sexual desire in unlawful circumstances, or in ways that offend the public or tend to demoralize others.” 2 Abbott’s Law *39Dictionary, 35 (1879). If sexual conduct is lewd because it is unlawful, then a statute that makes it unlawful because it is lewd is circular and provides little guidance as to what specific conduct was intended to be prohibited.
The majority, focusing on a cluster of early public “lewdness” statutes from other jurisdictions and an Oregon territorial statute concerning the same subject, acknowledges that the term is not subject to easy definition.6 The majority attempts to avoid the problem by saying that, despite that lack of clarity, it is easy to conclude “that [the term lewdness’] included the sort of conduct at issue in this case, that is, public sexual intercourse and masturbation.” 181 Or App at 13.7 We can be sure of no such thing.
In the first place, the majority assumes that the conduct at issue here was “public” as that term was used in the many public indecency statutes to which it refers. It seems unlikely that conduct of the sort at issue here — sexual conduct that occurred in a small room in an establishment that can be seen only by patrons who have paid to be there — is the type of “open” or “public” conduct that statutes prohibiting nudity and public indecency were intended to prohibit. If sexual activities between consenting adults in rooms rented to them in establishments open to the public were to be considered “lewd” and hence unlawful, then every married couple that had sexual relations while staying in a boarding house or inn would have committed a crime by doing so. That is unlikely, to say the least. Legislation prohibiting indecent exposure has nothing to do with the statute at hand, which involves expression between (and visible to) consenting adults, rather than the subjection of an unwilling audience. *40Thus, the “public indecency” variety of “lewdness” statute on which the majority relies does not establish a historical exception into which ORS 167.062 wholly fits.
Virtually all of the other examples that the majority cites as evidence of the existence of a historical exception also miss the point. The fact that legislatures formerly criminalized adultery and fornication, for example, tells us nothing about the proper analysis of this case. Whatever we may think of such prohibitions, no one could seriously contend that they focus on expression. Likewise, I agree with the majority that prostitution has been criminalized since time beyond memory; accordingly, no court has ever held that prostitution amounts to expression that is entitled to constitutional protection. As I explain below, the legislature lawfully may prohibit the promotion of prostitution that occurred in connection with the “two girl” shows.
Second, the majority has misconstrued the requirement that a restraint on expression be wholly contained within a historical exception. That requirement is not concerned with whether the prohibitive reach of a statute can be reduced to a rotten core of vile expression that the framers uniformly would have condemned. Rather, it is concerned with whether the “scope of the restraint,” as expressed in the statute, is “wholly confined” within the exception. Plowman, 314 Or at 163; Robertson, 293 Or at 412. Even with respect to what remains of ORS 167.062 after House, that simply is not the case here. As we recognized in House, many stage performances — both modern and from earlier eras — have contained sexual scenes yet are generally recognized as being works of literary and artistic merit that would not commonly be regarded as depicting the “unlawful indulgence of lust.” House, 66 Or App at 958. Under the explicit terms of ORS 167.062, some of those performances would be unlawful because the participants engaged in “masturbation” as the term is used in ORS 167.060(10). The Broadway production of “Hair” is one example. The current stage hit “Freak” may be another.8
*41The controversy over such performances reflects a classic collision between one segment of society’s sense of acceptable expression and another’s perception of obscenity. The debate over such matters is nothing new. However, it illustrates why the majority’s view is untenable. True historical exceptions to the constitutional guarantee of free expression — such as peijury, forgery, and fraud — do not trap us in a time warp of our own devising. Instead, they reflect timeless and unstinting values whose pedigree is so patent that there is no occasion to conjure their meaning or contours.9 Contrast those examples with the majority’s proposed historical exception, which apparently is so broad as to contain the depiction or presentation of any human nudity, whether in television, theater, or a movie. Such a postulate simply makes no sense in light of contemporary standards of tolerance.
I do not shrink from the majority’s point that — as elaborated in Robertson — the historical exception doctrine focuses on the intentions of eighteenth- and nineteenth-century constitutional framers: all the more reason to apply the doctrine with a surgeon’s scalpel. Although many no doubt were admirable and, indeed, visionary people, some *42politicians of the era also held and practiced intolerant, narrow-minded, and bigoted beliefs.10 If we find a spate of antiquarian American and colonial statutes and ordinances banning plays and theater altogether, have we found yet another historical exception to free expression?11 Our adherence to historical baggage of the latter sort inevitably will lead to results that make no sense.
It is an insufficient answer to that criticism to say that we are merely following where Robertson leads us. The historical exception doctrine was devised by judges to explain what appeared to be conflicts between the protections afforded by our constitution and age-old legislative prohibitions that seemingly contradicted those protections. There is nothing in Robertson that requires us to enshrine, as an exception to Article I, section 8, every type of statute regulating expression that commonly was on the books in the eighteenth and nineteenth centuries. Rather than extend the doctrine beyond the explicitly defined sorts of immutable crimes listed in Robertson, the courts would do well to examine the constitutionality of other legislation burdening expression against a more logical standard, namely, whether the legislation permissibly has targeted the harmful effects of such expression.12 That approach may have been foreshadowed in *43Stoneman, where the Supreme Court declined to apply the historical exception doctrine to uphold a statute prohibiting commerce in child pornography but, instead, concluded that the legislature’s evident and permissible purpose in enacting the statute was to prevent the sexual exploitation of children. 323 Or at 545-47. Significantly, the state makes no harmful effects argument in support of ORS 167.062. We should accept that concession and be done with it.
Third, the majority’s analysis, while erudite and extensive, is notably lacking in its failure to come to terms with what the Supreme Court held in Henry. Henry concerned the dissemination of books and videos portraying “sexual conduct.” 302 Or at 512. Following Robertson, the court framed the question as “whether ‘obscene’ expressions fall within such historical exceptions as ‘perjury, solicitation or verbal assistance in crime, some forms of theft, forgery and fraud and their contemporary variants.’ ” Henry, 302 Or at 515 (quoting Robertson, 293 Or at 412). The court undertook an extensive review of “crimes against public decency.” Henry, 302 Or at 516-18. The court concluded that “from our review of the English and American cases and statutes, we conclude that restrictions on sexually explicit or obscene expressions were not well established at the time the early freedoms of expression were adopted.” Id. at 520 (emphasis added).
When all is said and done, the majority here simply ignores that holding and follows its own version of history in concluding that there was, in fact, a well-established historical exception to Article I, section 8, for “sexually explicit or obscene expressions.” The majority sweeps away not only our own precedent in House, but also ignores the Supreme Court’s holding in Henry, in order to reach its desired result. The Supreme Court’s ultimate conclusion bears repeating here:
“We conclude as we did in reviewing English and American history that restrictions on sexually explicit and obscene expression between adults were not well established at the *44time of the adoption of Article I, section 8, of the Oregon Constitution.
******
“* * * jn this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally considered ‘obscene.’ ’’Henry, 302 Or at 523, 525 (emphasis added).
That holding has consistently been affirmed by the Supreme Court, see, e.g.,Stoneman, 323 Or at 541 n 6; City of Portland v. Tidyman, 306 Or 174, 179, 759 P2d 242 (1988), and this court is not free to disregard or distinguish it by unearthing a different, but equally obscure, territorial statute upon which to spin a different view of history. It is beyond this court’s authority to refuse to follow precedent of the Oregon Supreme Court on the ground that we disagree with it.
Finally, the majority’s linkage of “lewdness” to public nudity is also incongruous in that it suggests that many forms of expression protected under the First Amendment are not protected by Article I, section 8. If, as the majority appears to suggest, legislation proscribing “public nudity’ constitutes a historical exception to constitutional guarantees of free expression, the United States Supreme Court has yet to grasp that fact. The Court repeatedly has held that customary, barroom-type nude dancing is expressive conduct that is entitled to some measure of protection under the First Amendment. City of Erie v. Pap’s A.M., 529 US 277, 289,120 S Ct 1382, 146 L Ed 2d 265 (2000); Barnes v. Glen Theatre, Inc., 501 US 560, 563, 111 S Ct 2456,115 L Ed 2d 504 (1991). In fact, under the First Amendment, a government may not prohibit sexually explicit dance movements as a means of regulating sexually oriented businesses. Schultz v. City of Cumberland, 228 F3d 831, 847 (7th Cir 2000). It seems highly unlikely, to say the least, that the Oregon Supreme Court in Henry, or in any of its subsequent decisions, meant to say that Article I, section 8, provided more meager protection for expression.
The burden of demonstrating that a restriction on expression falls wholly within a historical exception is a heavy one. Moser v. Frohnmayer, 315 Or 372, 376, 845 P2d 1284 (1993). Neither the state nor the majority has met it *45here. Because ORS 167.062 is directed at the content of expression and it prohibits constitutionally protected expression, it is overbroad. Further, because we may not excise the unconstitutional prohibitions and leave an intact criminal offense, the statute may not be narrowed through judicial interpretation to remedy that defect. Accordingly, it violates Article I, section 8, of the Oregon Constitution.
I turn to defendant’s argument that ORS 167.012, prohibiting the promotion of prostitution, is unconstitutional as applied to the present case. ORS 167.012(1) provides, in part:
“A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly:
“(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise [.]”
ORS 167.007(1) provides:
“A person commits the crime of prostitution if:
“(a) The person engages in or offers or agrees to engage in sexual conduct or sexual contact in return for a fee; or
“(b) The person pays or offers or agrees to pay a fee to engage in sexual conduct or sexual contact.”13
In support of his contention that ORS 167.012(1) is unconstitutional as applied to him, defendant argues:
“The same conduct that resulted in defendant’s convictions under ORS 167.062 also resulted in his conviction under ORS 167.012. Therefore, even if the described conduct meets the technical definition of prostitution, defendant is still entitled to judgment of acquittal because the dancers were engaged in protected expression.”
*46Defendant’s argument fails. The conclusion that ORS 167.062, relating to “live public shows,” is facially overbroad does not in any way imply that every type of conduct performed in the course of such a show is somehow protected under Article I, section 8, of the Oregon Constitution.
Viewed in the light most favorable to the state, the evidence in the record supports findings that the performers in the “two girl show” committed acts of prostitution, as defined in ORS 167.002 and that defendant promoted that conduct: that is, conduct that is illegal with no expressive aspects. As noted above, engaging in otherwise punishable conduct for expressive reasons, or engaging in otherwise punishable conduct and protected expression at the same time, does not somehow transform the punishable conduct into protected expression. Huffman and Wright Logging, 317 Or at 452. In that case, Earth First! protestors trespassed on property in the course of a demonstration against logging practices. Id. at 447. The reason for the trespass concerned political expression, and, in fact, in the course of the trespass the protestors hung a banner that expressed a political message. Id. The court held, however, that “[t]he message that defendants sought to convey by their conduct, the reason for their conduct, and the spoken and written words accompanying their conduct did not transform defendants’ conduct into speech.” Id. at 458. In short, the elements of a trespass remained the same, regardless of any accompanying expressive speech or political motive.
Similarly, the elements of promoting prostitution were met here, whether the conduct constituting the prostitution promoted by defendant involved two persons engaged in sexual conduct in a dark alley or in a motel room, or two persons engaged in the same conduct in front of customers— in effect, an audience — in a private room of a “gentlemen’s club.” Stated another way, the statute does not seek to punish the promotion of prostitution only when the prostitution occurs in front of an audience or because it occurs in front of an audience. Rather, it seeks to punish all acts of promoting prostitution regardless of the ostensible reason for the prostitution or for the promotion of it, whether that reason is *47monetary gain, sexual gratification, or artistic expression.14 As discussed above, under Article I, section 8, a person’s expressive purpose for engaging in otherwise punishable conduct does not transform that conduct into protected expression. Huffman and Wright Logging, 317 Or at 454.15 The trial court correctly concluded that ORS 167.012, providing for the crime of promoting prostitution, was not unconstitutional as applied to defendant.
I respectfully concur in part and dissent in part.
Wollheim, J., joins in this opinion.The Supreme Court summarized the Robertson test in State v. Plowman, 314 Or 157,163-64,838 P2d 558 (1992), cert den 508 US 974 (1993), as follows:
. “In [Robertson], this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on proscribing the pursuit or accomplishment of forbidden results. 293 Or at 416-17. The court reasoned that a law of the former type, a law ‘written in terms directed to the substance of any “opinion” or any “subject” of communication,’ violates Article I, section 8,
“ ‘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 .’Id. at 412.
“Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. * * * Such laws are analyzed for overbreadth:
“ “When the proscribed means include speech or writing, however, even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid such “overbreadth.” ’Ibid.
“The second kind of law also focuses on forbidden effects, but without referring to expression at all. Of that category, this court wrote:
“ ‘If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to [A]rticle I, section 8.’Id. at 417.” (Emphasis in original; footnotes omitted.)
Justice Campbell, joined by Justice Linde, concurred only in the result reached by the majority. He wrote that “[w]e granted the petition for review in this case to consider the constitutional issue decided by the Court of Appeals. I would affirm the Court of Appeals on that issue.” Id. at 82-83 (Campbell, J., concurring).
In Henry, the court struck down as facially unconstitutional a statute that prohibited the dissemination of obscene materials after concluding that Article I, section 8, contained no historical exception for obscene expression. 302 Or at 515-25.
The state makes no argument in the present case concerning “forbidden effects.”
Insofar as “prostitution” is at issue, I address it in the discussion below.
The Oregon territorial statute is An Act to Define Crimes and Misdemeanors and Regulate Criminal Proceedings, chapter 11, section 8 (1854). The majority’s reliance on statutes enacted after the adoption of the Oregon Constitution, including General Laws of Oregon, chapter 48, section 632 (Deady 1845-64), 181 Or App at 12, is misplaced. While laws that were on the books when the constitution was adopted provide appropriate context for a constitutional analysis, laws enacted afterward shed no significant light on the framers’ intent.
Although it is not altogether clear, I presume that the majority does not really mean to suggest that any of the activity involved in this case constituted “sexual intercourse.” So that my premise is clear, I note that the sexual conduct defendant was convicted of presenting was “masturbation.” That term is not defined by statute.
In our opinion on reconsideration in House, as noted above, we struck down a part of ORS 167.062 regarding “touching of the genitals * * * whether alone or *41between members of the same or opposite sex * * * in an act of apparent sexual stimulation or gratification” but nonetheless did not conclude that both the “sexual intercourse” and “masturbation” portions of the statute were unconstitutional. On reflection, it is entirely unclear how “masturbation” can be meaningfully differentiated from “touching of the genitals * * * in an act of apparent sexual stimulation or gratification,” ORS 167.062, much less why it should be differentiated. See Webster’s Third New Int’l Dictionary, 1391 (unabridged ed 1993) (“masturbation” includes “stimulation involving the sexual organs * * * achieved by manual or other bodily contact”). To the extent that we may have been suggesting in House that the constitutionality of the touching of genitals in a live performance was dependent upon whether the person whose genitals were touched was enjoying it, I find that distinction unconvincing.
Although their jurisprudence scarcely binds us, our common legal heritage makes worth noting — if only in passing — that our Canadian neighbors likely would be perplexed by the majority’s sense of historical obligation. In the quest to establish criteria for determining “indecency,” the Canadian Supreme Court, in Tremblay v. R., [1993] 2 SCR 932, considered the lawfulness of activities virtually identical to those involved here (except for the activities in the “two girl” shows). The court concluded that the acts were not indecent, noting that both the dancers and the clients knew what to expect, consented to the activities, and were free to leave at will. The court further noted that such a performance in a closed room with only consenting adults present was far different from the same activity carried out in a school yard or public park.
Witness the 1849 Oregon territorial act that prohibited any “negro or mulatto” from entering or residing “within the limits of this territory.” Laws of Oregon, § 1, p 161 (1850).
The thought is absurd only in hindsight:
“Until the 1760’s no native professional theater existed — no actors, singers, or dancers, and no playhouses. But the demand that did exist divided society. The perennial objection to the theater — harm to morals — was supported by local laws, and the Confederation Congress passed a resolution that classed under ‘extravagance and dissipation’ gambling, horse-racing, cockfighting, and all ‘shows and plays.’
“The dissipated were nonetheless served by an English troupe with David Douglass as actor-manager. He toured the colonies twice with his repertory of English plays by Farquhar, Mrs. Centilivre, Colley Cibber, and George Lillo, interspersed with ballad operas such as Arne’s Love in a Village and Gay’s Beggar’s Opera. Some of Shakespeare, heavily improved and sometimes offered in thin slices, also figured on the programs. The people of Charleston loved plays and perhaps Boston did too, or why should a law have been passed there in 1750 to prohibit them?” Jacques Barzun, From Dawn to Decadence, 500 Years of Western Cultural Life, 406 (2000).
Although this is not the time to discuss them, I do not suggest that the harmful effects principle is free of its own practical weaknesses and pitfalls. However, it *43lacks the most obvious conceptual and practical flaws of the historical exception doctrine.
In contrast to the statutes discussed above and for purposes of the prostitution statutes, ORS 167.002(4) defines “sexual conduct” as “sexual intercourse or deviate sexual intercourse.” For purposes of the prostitution statutes, ORS 167.002(5) defines “sexual contact” as “any touching of the sexual organs or other intimate parts of a person not married to the actor for the purpose of arousing or gratifying the sexual desire of either party.”
While Judge Armstrong makes many good points about the Robertson case in his dissent, his analysis of the constitutionality of ORS 167.012 is unconvincing. He correctly posits that those who engage in expressive conduct while violating a law that is not aimed at expressive conduct are not immune from liability, noting that “a person who commits murder in a theatrical performance is liable for that crime even though the murder was committed solely for expressive purposes.” 181 Or App at 54-55 (Armstrong, J., dissenting). He chooses to treat prostitution (and promoting prostitution) in the course of a performance as somehow “qualitatively different” from murder for purposes of Article I, section 8, analysis. Id. at 55. He states that, “[i]f it is lawful to film or produce a live public show in Oregon * * * that includes sexual conduct, * * * then the state cannot apply the prostitution laws to make that conduct unlawful when the performers are paid for their performance.” Id. To the extent that Judge Armstrong is positing that drawing a distinction based on whether conduct is done for a fee creates constitutional problems, I respectfully disagree. Prostitution that is not done in the course of a theatrical performance involves the same “conduct” in which people may lawfully engage so long as it is not done “for a fee.” ORS 167.007 (defining prostitution). Similarly, it is entirely lawful to give up a baby for adoption. It is a serious felony, however, to sell a baby to adoptive parents. ORS 163.537 (buying or selling a child is a Class B felony). The legislature may define crimes based on whether or not a fee is involved without running afoul of the constitution. It is illogical to posit that prostitution in the course of a theatrical performance cannot be a crime simply because sexual conduct that is not prostitution may lawfully occur in the course of a theatrical performance.
Defendant’s theory, carried to its logical extreme, would lead to the conclusion that a political candidate who physically assaulted an opposing candidate during the course of a live debate could not be prosecuted for the assault, because a political debate constitutes protected expression under Article I, section 8, and the assault was an expression of the political disagreement between the candidates.