State v. Smith

“If the law focuses on the forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category,” determining whether it “appears to reach communication privileged by Article I, section 8, or whether the law can be interpreted to avoid such overbreadth.” State v. Robertson, 293 Or 402, 412 (1982); State v. Rangel, 328 Or 294, 300 (1999). The government cannot discriminate against kinds of speech based on the “ideas or opinion it conveys”. Iancu v. Brunetti, 139 S Ct 2294, 2499 (2019).

Defendant was convicted of second-degree intimidation following an incident in which he threatened to blow up a neighboring apartment building and used homophobic epithets towards its residents. He assigns error to the trial court’s denial of his demurrer, arguing the second-degree intimidation statute violates Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. “If the law focuses on the forbidden effects, and the proscribed means of causing those effects include expression, then the law is analyzed under the second Robertson category,” determining whether it “appears to reach communication privileged by Article I, section 8, or whether the law can be interpreted to avoid such overbreadth”. State v. Robertson, 293 Or 402, 412 (1982); State v. Rangel, 328 Or 294, 300 (1999). The government cannot discriminate against kinds of speech based on the “ideas or opinion it conveys.” Iancu v. Brunetti, 139 S Ct 2294, 2299 (2019). Because the statute is intended to protect individuals from alarm created by threats of serious physical injury and requires that the defendant act intentionally, it complies with Article I, section 8. Moreover, it does not violate the First Amendment because it criminalizes making of threats of physical harm or violent felonies that cause the victim alarm, not expressions of bias. The trial court was therefore correct to deny Defendant’s demurrer. Affirmed.