State v. Ryan, — P.3d —, No. SC S059065, 2011 WL 3963492 (Or. Sept. 9, 2011).
September 14, 2011
Defendant was convicted of two counts of violating a stalking protective order. The trial court denied defendant’s motion for judgment of acquittal on the two counts. On review, the Oregon Court of Appeals reversed defendant’s convictions, reasoning that the state’s constitutional free speech provision required that the statute be narrowed to withstand an overbreadth challenge to require “an unequivocal threat of the sort that makes it objectively reasonable for the victim to believe that he or she is being threatened with imminent and serious physical harm,” and that the state had failed to meet its burden of proof on both counts. The state appealed, and defendant argued in support of the decision of the Court of Appeals that the crime of violating a stalking protective order by communicative acts, which requires that defendant’s conduct create a reasonable apprehension regarding the personal safety of the victim, was insufficient to withstand an overbreadth challenge under the free speech provision of Oregon’s Constitution. Rather, defendant argued, the court should employ the standard used for the issuance of a protective order—that is, the statute at issue must be judicially narrowed to require “an unequivocal threat of the sort that makes it objectively reasonable for the victim to believe that he or she is being threatened with imminent and serious physical harm.” Defendant did not attack the validity of the underlying stalking protective order and conceded that he could be held in criminal contempt for violating the terms of the order. The Oregon Supreme Court rejected defendant’s arguments, holding that, because defendant’s communications with the victim were already prohibited by the stalking protective order, the state was not required by the state’s constitutional free speech provision to prove under the statute that defendant had communicated an unequivocal threat to the victim. The court further held that defendant’s concession that the underlying stalking protective order was valid prohibited defendant from attacking the order on free speech grounds: “The restriction on defendant’s speech rights occurred (if at all) when the trial court entered a stalking protective order that barred defendant from communicating with the victim in any way… . [The statute] does not reach any speech not otherwise prohibited by the concededly lawful order. Therefore, a defendant who seeks to challenge a conviction under [the statute] on free speech grounds first must successfully attack the underlying stalking protective order. Because defendant conceded the validity of the stalking protective order …, his communications to the victim in violation of the order were not protected by [Oregon’s Constitution].” The court then held that the trial court correctly denied defendant’s motion for judgment of acquittal, affirmed that decision, and reversed the decision of the Court of Appeals. One justice concurred, and separately wrote to express the view that the statute itself was constitutional as it “does not punish only those contacts that covey a particular message or advocate a specific viewpoint. Rather, [the statute] distinguishes among prohibited contacts based on whether the contact ‘created reasonable apprehension regarding the personal safety of a person protected by the [stalking protective] order.’ That distinction is, in my view, a permissible one.”
NCVLI participated in this case as amicus curiae along with the Oregon Law Center and the Oregon Crime Victims Law Center (OCVLC). OCVLC also represented the victim in this proceeding.