State v. Hirschman

ORS 260.715(9) is facially unconstitutional because the law criminalizes a "offer to purchase" ballots and therefore is directed at the the act of communicating itself and not at whatever harmful effects of the expression may exist.

Defendant appealed his conviction for offering to purchase ballots (ORS 260.715(9)). Prior to conviction Defendant demurred the charge, arguing that the statute violated his right to freedom of expression under Article I, section 8 of the Oregon Constitution. He reiterated this argument on appeal. If a law is “written in terms directed to the substance of any opinion or any subject of communication,” the law is unconstitutional unless its restrictions are “wholly confined within some historical exception.” State v. Robertson, 293 Or. 402, 412, 649 P.2d (1982). The Court held that ORS 260.715(9) is facially unconstitutional because it is “directed toward the content of expression.” The Court first noted that the phrase “offer to purchase” refers only to communication of that offer, therefore criminalizing an act of communication. The Court also noted that ORS 260.715(9) is not directed at the harmful effects of the speech, which would require a different analysis. The Court further held that there was no relevant historical exception which would justify criminalizing the communicative act of “offering to purchase” ballots. Reversed and remanded.