dissenting.
The majority concludes that ORS 167.062, which prohibits sexual conduct in a live public show, does not violate Article I, section 8, of the Oregon Constitution, the Oregon constitutional guarantee of free expression. It reaches that conclusion on the ground that ORS 167.062 fits *48within a restriction on expression that was well established by 1859 when the state adopted Article I, section 8, and that was demonstrably intended to survive the adoption of the free speech guarantee. The majority is wrong. The historical record on which it relies to conclude that ORS 167.062 comes within a historical exception is equivalent to the record that the Supreme Court held in State v. Henry, 302 Or 510, 732 P2d 9 (1987), and that we held in State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), rev den 332 Or 137 (2001), was insufficient to establish an exception under Article I, section 8, for laws against the distribution of sexually explicit materials to adults and to minors. Consequently, the majority’s decision in this case cannot be reconciled with the decisions in Henry and Maynard.
Furthermore, the majority misunderstands and, hence, misapplies the exception under Article I, section 8, for laws that were well established and demonstrably intended to survive the adoption of the free speech guarantee. The test for the exception is a two-part test. It requires the state (1) to establish that the restriction on expression on which it relies was well established by 1859 and (2) to demonstrate that the restriction was intended to survive the adoption of the constitutional guarantee against the enactment of laws that restrict expression. See, e.g., State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982). The majority stands the second part of the test on its head. Rather than requiring the state to demonstrate that the restriction was intended to survive the adoption of the guarantee, the majority looks to the historical record to see if it demonstrates that the guarantee was intended to displace the restriction. 181 Or App at 17-19. As I will explain in greater detail, that is not the way that the exception works.
Both the majority and Judges Brewer and Wollheim conclude that the conviction of defendant for violating ORS 167.012, which prohibits the promotion of prostitution, does not run afoul of Article I, section 8. I respectfully disagree. Although people generally can be held liable for criminal acts committed while engaged in expressive activity, some criminal laws cannot constitutionally be applied to people engaged in expressive activity. In the context of this case, ORS 167.012 is such a law.
*49Article I, section 8, provides that
“[n]o law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
The state contends that the law that prohibits sexual conduct in a live public show, ORS 167.062, is a law that restricts conduct and not expression and, hence, is a law that is valid under Article I, section 8. The majority does not resolve that issue. It suggests, however, that the state could be correct. 181 Or App at 7. The majority’s discussion of this issue betrays how thoroughly it misunderstands the relevant analysis.
The threshold issue under Article I, section 8, is whether the challenged law restricts expression. The issue is not whether the particular expression is protected by Article I, section 8, against restriction. See, e.g., Robertson, 293 Or at 412, 436-37. The majority confuses those two issues. It says:
“As Huffman and Wright Logging Co. [v. Wade, 317 Or 445, 857 P2d 101 (1993),] makes clear, merely engaging in conduct to attract the attention of an audience does not necessarily transform the conduct into protected expression. Homicide, for example, is conduct. Performing it in front of an audience does not transform it into protected expression.”
181 Or App at 7.
Article I, section 8, generally does not immunize from criminal liability the conduct of people who engage in expressive activity if the liability is imposed under criminal laws that apply irrespective of whether the proscribed conduct serves an expressive purpose. That is why the trespass in Huffman and Wright Logging Co. could be punished even though those who trespassed did so to communicate ideas, and that is why a law against murder would apply to a theatrical production.
However, if there were no law against murder except a law that prohibited murder in a live public show, then the law restricting murder in a live public show would be a law that restricted expression. That is because imposition of the *50restriction would depend on whether the conduct served an expressive purpose, which means that the focus of the law would be on restricting expression rather than on preventing murder, because murder would otherwise be lawful. Of course, the law might be valid under Article I, section 8, if it met the criteria that laws restricting expression must meet in order to be valid under that provision, but it still would be analyzed as a law that restricts expression. Judge Brewer makes precisely that point in his opinion, 181 Or App at 36-37 (Brewer, J., concurring in part, dissenting in part), and he is right. ORS 167.062 prohibits sexual conduct in a live public show. Leaving aside the issue of payment of the performers, the sexual conduct that the statute prohibits is conduct that is otherwise lawful among consenting adults. That means that the statute operates to restrict the conduct only if the conduct serves an expressive purpose. Consequently, the statute restricts expression.
Because ORS 167.062 is a law that restricts expression, its validity must be evaluated under the standards that apply to such laws. ORS 167.062 is not a law that focuses on the effects of the prohibited expression, because the state need not establish that the expression had any effect, harmful or otherwise, in order to convict people under the statute. Consequently, the validity of the statute depends on whether it comes within a restriction on expression that was well established when the state adopted Article I, section 8, and that was demonstrably intended to survive the adoption of that provision. See, e.g., Robertson, 293 Or at 412.
The majority concludes that ORS 167.062 is such a law. It marshals as support for that conclusion a body of law that restricted nudity and sexual conduct both before and after the adoption of Article I, section 8. For a number of reasons, that body of law does not establish that ORS 167.062 comes within a historical exception to the protection afforded free expression by Article I, section 8.
The most obvious reason that it does not is that the body of law on which the majority relies is indistinguishable from the body of law that the Supreme Court in Henry and we in Maynard rejected as establishing a historical exception for *51laws that prohibit the distribution of sexually explicit materials to adults and minors. The majority traces the restrictions on which it relies to a 1663 English case involving Sir Charles Sedley, Sir Charles Sydlyes Case, 83 Eng Rep 1146 (KB 1663). 181 Or App at 9-10. That is the same case that is commonly identified as the source of the common-law restrictions on obscene expression. See, e.g., Maynard, 168 Or App at 164, 178-79 (Landau, J., dissenting). Although there are differences in the details of the various laws that allegedly comprise the historical exception at issue in Henry, Maynard, and this case, those differences are legally insignificant. To the extent that the relevant restrictions targeted expression, their purpose was to restrict objectionable sexual expression in order to discourage or prevent objectionable sexual conduct. In other words, the restrictions sought to impose “a uniform vision on how human sexuality should be regarded or portrayed.” Henry, 302 Or at 525. The Supreme Court held in Henry that the body of law that sought to impose that vision did not constitute a historical exception under Article I, section 8. Until the Supreme Court overrules Henry and we overrule Maynard, we cannot hold, as the majority does, that ORS 167.062 comes within a well-established restriction on expression that was intended to survive the adoption of Article I, section 8.
The majority’s historical analysis is flawed for other reasons as well. It lumps together laws on conduct with laws on expression, see 181 Or App at 9-15, and laws that sought to protect unwilling viewers and children against exposure to sexually explicit expression with laws that sought to prevent everyone from being exposed to that expression, see id. Again, the analysis does not work that way. The laws that matter for purposes of historical exceptions under Article I, section 8, are laws whose purpose is to restrict expression. A law against murder will prevent theatrical productions that feature actual murders, but it is not a law that specifically restricts expression. Consequently, the laws cited by the majority that involved restrictions on sexual conduct irrespective of whether the conduct was presented for expressive purposes are irrelevant to whether there is a historical exception that applies to the prohibition at issue here, which is the *52prohibition in ORS 167.062 against the presentation of sexual conduct in a live public show.
Similarly, it is necessary to distinguish, as the court did in Henry, between laws that sought to protect unwilling viewers against sexual, excretory, or similarly offensive expression and laws that sought to protect everyone against it. See Henry, 302 Or at 525. When the focus is narrowed, as it must be, to laws that sought to prevent people from presenting sexually explicit performances to a willing audience, it should be evident, again, that the laws at issue are indistinguishable from the laws at issue in Henry and Maynard that sought to restrict sexually explicit expression in order to promote a uniform vision of acceptable sexual behavior. Those laws do not establish that ORS 167.062 comes within a historical exception to the protection afforded free expression by Article I, section 8.
The majority’s approach also fails to recognize that there is a distinction under Article I, section 8, between conventional laws that restrict expression and other laws that do so. The analysis that the court established in Robertson takes the text of Article I, section 8, at face value and recognizes that the provision imposes a broad prohibition against the enactment of laws that restrain or restrict expression. The court recognized, however, that that prohibition could not be applied literally, because it would mean that there could be no law in Oregon that restricted expression, and the court did not believe that Article I, section 8, was intended to have that effect.
The court resolved the apparent conflict between the text of Article I, section 8, and the principle that some restrictions on expression are permitted by recognizing the familiar three-category distinction among restrictions on expression: (1) those that come within a well-established restriction on expression that was demonstrably intended to survive the adoption of Article I, section 8; (2) those that focus on the harmful effects of expression; and (3) those that are not directed at expression but that are subject to challenge under Article I, section 8, when they are applied to restrict expression. See Robertson, 293 Or at 412, 417 & n 11.
What the majority fails to appreciate is that the first category of laws, those that come within a well-established *53historical exception, is subject to a further division between conventional laws that restrict expression and other laws that do so. In summarizing its decision in Robertson on the constitutionality of the coercion statute, ORS 163.275 (1981), the court explained:
“To recapitulate, we believe that the constitutional right to speak, write, or print freely on any subject whatever guaranteed in article I, section 8, was not meant to immunize the use of words in some respects relevant to ORS 163.275 [(1981)]. As we have said, one of these is the use of words in the course of what indisputably would have been a conventional crime when Oregon’s Bill of Rights was adopted in 1859, or in the course of similar kinds of conventional crimes that lawmakers from time to time enact.28
“28 we refer to ‘conventional’ crimes so as not to imply that constitutional freedom of expression today does not extend to crimes known before the Bill of Rights, such as seditious or criminal libel, that restrained freedom of public disclosure and debate.”
Robertson, 293 Or at 433 & n 28. As that statement indicates, restrictions on expression embodied in historically established conventional crimes survived the adoption of Article I, section 8. However, restrictions imposed by historically established laws whose purpose was to restrict thoughts and ideas did not necessarily survive the adoption of the provision. The state must demonstrate that they were intended to survive the adoption.1
As Robertson and other cases make clear, conventional crimes are those that restrict expression to prevent identifiable, tangible harm, such as laws against perjury, fraud, forgery, solicitation or verbal assistance in crime, etc. *54See, e.g., Robertson, 293 Or at 412. Crimes such as seditious libel and criminal libel that restrict expression to control thoughts and ideas are not. Id. at 433 & n 28. The statute at issue here, ORS 167.062, which restricts the sexual content of shows presented to an audience of willing adult viewers, is the latter type of law.
Henry establishes, in turn, that laws equivalent to ORS 167.062 that were adopted contemporaneously with Article I, section 8, are insufficient to show that those laws were intended to survive the adoption of Article I, section 8. The Oregon territorial legislature adopted restrictions on obscene expression in 1853 and 1855 and the Oregon legislature did so just after statehood, see General Laws of Oregon 1845-1864, Crim Code, ch 48, § 637, p 560 (Deady ed. 1866), yet the Henry court held that the existence of those laws failed to establish that they survived the adoption of the free speech guarantee:
“As we cautioned in State ex rel Oregonian Pub. Co. v. Deiz, 289 Or 277, 284, 613 P2d 23 (1980), ‘[contemporaneous legislative actions should not necessarily be given much weight when construing constitutional principles. Constitutional draftsmen are concerned with broad principles of long-range significance.’ ”
302 Or at 521-22.2
Here, the relevant historical record establishes, at most, that the state imposed restrictions on the sexual content of live expressive works contemporaneously with the adoption of Article I, section 8. As in Henry, that is insufficient to show that restrictions of that kind were intended to survive the adoption of the constitutional guarantee. The majority errs in concluding otherwise.
I turn to defendant’s challenge to his conviction for promoting prostitution in violation of ORS 167.012. As I *55noted earlier, people who engage in expressive conduct generally are not immune from liability for violating laws that apply to the conduct irrespective of whether the conduct serves an expressive purpose. Consequently, a person who commits murder in a theatrical performance is liable for that crime even though the murder was committed solely for expressive purposes. The majority and Judge Brewer apply that principle to conclude that Article I, section 8, does not immunize defendant from liability for promoting prostitution by paying performers to engage in sexual conduct in a live public show, because the law against promoting prostitution is one that applies irrespective of whether the violation served an expressive purpose.
The California Supreme Court confronted the same issue under the First Amendment in People v. Freeman, 46 Cal 3d 419, 758 P2d 1128, 250 Cal Rptr 598 (1988), and concluded that California’s prostitution laws could not be applied to penalize a film producer for paying actors to perform in a sexually explicit film. Although the court recognized that expressive conduct generally is subject to laws that apply irrespective of whether the conduct serves an expressive purpose, such as laws against murder, rape, and robbery, see 46 Cal 3d at 428-29, it held that the prostitution laws were qualitatively different from other laws when applied to expressive work. It noted, for example, that applying such laws to film production would mean that people who produced
“films of unquestioned artistic and social merit, as well as films made for medical or educational purposes,”
would be subject to prosecution for promoting prostitution. Id. at 426. The court rejected that conclusion under the First Amendment. 3
I would do so as well under Article I, section 8, of the Oregon Constitution. If it is lawful to film or produce a live public show in Oregon in which willing adult viewers watch *56unpaid adult performers engage in a performance that includes sexual conduct, and I believe that Article I, section 8, establishes that it is, then the state cannot apply the prostitution laws to make that conduct unlawful when the performers are paid for their performance. I therefore would reverse defendant’s conviction for promoting prostitution in violation of ORS 167.012.4
I respectfully dissent.
The distinction makes sense. To the extent that expression causes harm, the legislature is free to write laws that impose restrictions that focus on that harm. See, e.g., Robertson, 293 Or at 412-18. Most problems caused by expression can be addressed in that way. Consequently, the legislature generally does not need to look to historical exceptions as a source of authority for laws that address problems caused by expression. That is even more true where, as here, the function of the claimed historical exception was to control people’s thoughts and beliefs (and concomitant behavior) by controlling the expression to which they were exposed. The whole point of Article I, section 8, is to prevent the legislature from adopting laws that restrict expression in order to control what people think and believe, yet the majority upholds a law in this case that does precisely that.
The court continued in Deiz:
“[LJegislators are more likely to be concerned with the immediate. We have observed a political temptation to adopt an ideal as an abstract principle and then substantially undercut the ideal in order to accommodate an immediate concern. For example, the political generation that adopted the first amendment also attempted to suppress political criticism by enacting the Alien and Sedition Acts.”
289 Or at 284.
The court went on to note in Freeman that “ ‘any more restrictive rule could annihilate in a stroke much of the modern theater and cinema.’ ” Freeman, 46 Cal 3d at 426 (quoting Barrows v. Municipal Court, 1 Cal 3d 821,831,464 P2d 483,83 Cal Rptr 819 (1970)); cf. Wooten v. Superior Court, 93 Cal App 4th 422,113 Cal Rptr 2d 195 (2001), rev den (Cal 2002) (managers of strip club not liable for prostitution-related crimes for sexual acts performed between paid performers).
The analysis that I apply here is analogous to the analysis that I believe applies under the Oregon Constitution to a claim that an otherwise valid law cannot be applied to prevent a person from complying with the requirements of her religion. A law against murder properly can apply to prevent a person from complying with a religious command to engage in human sacrifice. However, the constitutional guarantee of religious liberty might prevent the state from requiring a licensed driver to have her photograph on her driver license if the requirement would violate her religious beliefs. See, e.g., Quaring v. Peterson, 728 F2d 1121 (8th Cir 1984). Similarly, it would prevent the state from requiring a person to pledge allegiance to the Oregon flag if doing so would require the person to violate her religious beliefs. See, e.g., Board of Education v. Barnette, 319 US 624,626-30,642, 63 S Ct 1178, 87 L Ed 1628 (1943). There is no obvious line that can be drawn between general laws that can be enforced notwithstanding religious beliefs and those that cannot. Nevertheless, I believe that the Oregon religious liberty guarantees embody such a distinction, which, as I have said, is equivalent to the distinction that Article I, section 8, creates between generally applicable laws that can apply to expressive conduct and those that cannot.
In rejecting my analysis, Judge Brewer notes that Oregon law permits parents to place their children for adoption but prohibits them from selling their children to others, which is another example besides the prostitution laws of a law that makes conduct criminal because the conduct involves the payment of money. 181 Or App at 47 n 14 (Brewer, J., concurring in part, dissenting in part). Of course, you can pay actors to stage a scene in which they purport to sell their child without violating the law against selling children. In contrast, the laws prohibiting prostitution are the only laws of which I am aware that would prevent a filmmaker or theater producer from paying actors to portray conduct that would be lawful but for the fact that the actors are paid to portray it. Given the realities of film and theater production, in which actors generally must be paid, the enforcement of the prostitution laws against the people involved in that work means that expressive works involving sexual conduct cannot be produced. The unique conflict between the prostitution laws and the ability of people to create film and theatrical works using paid actors to portray sexual conduct leads me to conclude that Article I, section 8, bars the state from enforcing the prostitution laws against producers and actors involved in expressive work that includes sexual conduct that is lawful but for the payment of the actors. As noted above, the California Supreme Court reached the same conclusion under the First Amendment in Freeman.
Furthermore, I do not doubt that, if the state enacted a law that made it a crime to pay or receive money for an adult to be nude in the company of adults to whom the nude adult was not related, then Article I, section 8, would bar enforcement of that law against dancers, models, photographers, and artists involved in the creation of expressive works. I believe that the same principle applies to the prostitution law at issue in this case.