State v. Cook

Under the framework set forth in State v. Roberson 293 Or 402, 649 P2d 569 (1982), a statute must expressly restrain speech in order justify review for facial overbreadth.

Defendant was charged with one count of telephonic harassment under ORS 16.090(1)(c) after sending multiple messages to his ex-wife. Defendant argued that the court erred when they denied his motion for judgment of acquittal (MJOA), claiming the statute was either facially overbroad or, in the alternative, was unconstitutionally applied to the facts of his case. Defendant further argued that the sent messages were protected speech under Article I, section 8 of the Oregon Constitution. The court used the framework outlined in State v. Robertson, 293 Or 402, 649 P2d 569 (1982) to analyze the statute’s constitutionality by breaking it down into three categories. First, a law is unconstitutional if it directly targets the content of opinions or subjects of communication. Second, if a law doesn’t directly target opinions or communication, the court looks at whether the law attempts to stop certain effects such as harm or disruption caused by the speech or writing. Third, if a law only focuses on the effects, it can be challenged based on its application to a particular case. The court found that while the statute was not unconstitutional on its face, when applied to Defendant’s case it was restrictive of the content within the message sent. REVERSED.