Oregon Supreme Court 09-09-11
by: Abassos • September 8, 2011 • no comments
Read the full article for details about the following new cases:
- Stalking Order Violations - Free Speech
The Oregon Supreme Court today reverses the appellate court, finding that Article I, Section 8 does not provide a free speech defense when the speech is prohibited by a Stalking Protective Order:
We hold that, because defendant's communications were already prohibited by the stalking protective order, the state was not required by Article I, section 8, to prove under ORS 163.750 that defendant had communicated an unequivocal threat to the victim.
To be fair, it's not that there's nothing at the intersection of free speech and stalking order violations, it's just that ORS 163.750 already contains sufficient protections. The stalking order violation statute requires both prohibited communication and, when speech is involved, that "defendant's conduct created a reasonable apprehension regarding the personal safety of the victim. " The appellate court found that the additional free speech protections for the issuance of Stalking Orders (State v. Rangel) also apply to Stalking Order Violations.
The Supreme Court rejects the notion that a stalking order violation requires the exact same protections as the issuance of the initial stalking order. The Court points out that defendant conceded that the Stalking Order itself was Constitutional and lawful and that it could have formed the basis for a contempt charge. But, defendant argued, it could not form the basis for a statutory Stalking Order Violation. The court rejects defendant's attempt to challenge the violation without challenging the order:
The restriction on defendant's speech occurred ( if at all) when the trial court entered a stalking protective order that barred defendant from communicating with the victim in any way. As explained above, ORS 163.750 does not reach any speech not otherwise prohibited by the concededly lawful order. Therefore, a defendant who seeks to challenge a conviction under ORS 163.750 on free speech grounds first must successfully attack the underlying stalking protective order.
On the upside this ruling leaves open the possibility that a stalking protective order could be overbroad, violating free speech. On the downside, we (attorneys) don't usually get the case until there's an alleged violation, at which point a collateral attack is more difficult.
J. Kistler writes separately to add that the subsection of the stalking order violation statute dealing with communication (ORS 163.750(1)(c) is content neutral because it doesn't distinguish between communicative contacts based on whether it conveys a particular message or advocates a specific viewpoint. Instead, it distinguishes among prohibited contacts based on whether they created a reasonable apprehension regarding the personal safety of the victim. That, in J. Kistler's view, is a permissible distinction. State v. Ryan
