State v. Henry
Encyclopedia
State v. Henry was a 1987 decision of the Oregon Supreme Court
which held that the Oregon state law that criminalized obscenity
was unconstitutional because it violated the free speech provision of the Oregon Constitution
. The ruling made Oregon the first (and only state as of 2011) to abolish the offense of obscenity
in its state law, although obscenity remains a federal offense.
on Mr. Henry's behalf arguing that the Oregon Constitution's free speech clause (Article 1, Section 8) provides greater protection than the free speech clause found in the First Amendment to the United States Constitution
and that "state courts should interpret and develop state law under their state constitutions without regard to the swings in interpretation at the national level.", especially when state constitutions provide greater protections than the federal one.
The court further explained that "no criminal law could outlaw a certain category of speech unless that speech represented a "historically established exception" to the general guarantee of freedom of expression afforded by the state constitution.", noting that "The very fact that 'obscenity' originally was pursued and repressed for its 'anti-establishment' irreverence rather than for its bawdiness elsewhere and only to protect the morals of youth in this state leads us to conclude that no broad or all-encompassing historical exception from the guarantees of free expression was ever intended."
and Oregon Ballot Measure 31 (1995) attempted to amend the free speech provision of the Oregon Constitution
so that it no longer protected obscenity but both measures failed and no other changes have been proposed since.
Oregon Supreme Court
The Oregon Supreme Court is the highest state court in the U.S. state of Oregon. The only court that may reverse or modify a decision of the Oregon Supreme Court is the Supreme Court of the United States. The OSC holds court at the Oregon Supreme Court Building in Salem, Oregon, near the capitol...
which held that the Oregon state law that criminalized obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
was unconstitutional because it violated the free speech provision of the Oregon Constitution
Oregon Constitution
The Oregon Constitution is the governing document of the U.S. state of Oregon, originally enacted in 1857. As amended the current state constitution contains eighteen sections, beginning with a bill of rights. This contains most of the rights and privileges granted in the United States Bill of...
. The ruling made Oregon the first (and only state as of 2011) to abolish the offense of obscenity
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
in its state law, although obscenity remains a federal offense.
Background
The case came about when the owner of an adult bookstore, Earl Henry, was charged and convicted of obscenity (specifically for possessing and distributing obscene materials) after police raided his store. He was "fined $2,000 and sentenced to 60 days in jail but was allowed to remain free pending an appeal." The ACLU of Oregon filed an appeal to the Oregon Supreme CourtOregon Supreme Court
The Oregon Supreme Court is the highest state court in the U.S. state of Oregon. The only court that may reverse or modify a decision of the Oregon Supreme Court is the Supreme Court of the United States. The OSC holds court at the Oregon Supreme Court Building in Salem, Oregon, near the capitol...
on Mr. Henry's behalf arguing that the Oregon Constitution's free speech clause (Article 1, Section 8) provides greater protection than the free speech clause found in the First Amendment to the United States Constitution
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
and that "state courts should interpret and develop state law under their state constitutions without regard to the swings in interpretation at the national level.", especially when state constitutions provide greater protections than the federal one.
Ruling
In a unanimous (7-0) ruling on January 21, 1987, the Oregon Supreme Court agreed that "the text of the state constitution was "broader" than the text of the First Amendment" and dismissed the charges against Earl Henry. The court's ruling declared that the state's obscenity statute was unconstitutional with the majority opinion noting that:The court further explained that "no criminal law could outlaw a certain category of speech unless that speech represented a "historically established exception" to the general guarantee of freedom of expression afforded by the state constitution.", noting that "The very fact that 'obscenity' originally was pursued and repressed for its 'anti-establishment' irreverence rather than for its bawdiness elsewhere and only to protect the morals of youth in this state leads us to conclude that no broad or all-encompassing historical exception from the guarantees of free expression was ever intended."
Aftermath
Oregon Ballot Measure 19 (1994)Oregon Ballot Measure 19 (1994)
Ballot Measure 19 was a citizen's initiative in the U.S. state of Oregon in 1994. The measure sought to amend the Oregon Constitution, limiting free speech protection for obscenity and child pornography...
and Oregon Ballot Measure 31 (1995) attempted to amend the free speech provision of the Oregon Constitution
Oregon Constitution
The Oregon Constitution is the governing document of the U.S. state of Oregon, originally enacted in 1857. As amended the current state constitution contains eighteen sections, beginning with a bill of rights. This contains most of the rights and privileges granted in the United States Bill of...
so that it no longer protected obscenity but both measures failed and no other changes have been proposed since.
Further reading
- Long, William R. "Free Speech in Oregon." Oregon State Bar Bulletin. October 2003.
- ACLU of Oregon. "Oregon's Unique Constitutional Protection of Free Expression is Challenged." ACLU of Oregon. September 2005