This criminal case presents a question that lies at the intersection between Oregon’s constitutional protection of free expression and an Oregon statute that punishes abusive or insulting speech that is calculated to produce a violent response. The Court of Appeals held that ORS 166.065(1)(a)(B), the abusive speech provision of the criminal harassment statute, does not, on its face, violate the free expression protections in Article I, section 8, of the Oregon Constitution,(1) and that the statute also is not unconstitutional as applied to defendant’s conduct in this case. State v. Johnson, 213 Or App 83, 159 P3d 1213 (2007). For the reasons explained below, we reverse the decision of the Court of Appeals….
The consequence of applying the foregoing principles to the present case is clear. Defendant’s expression may have been offensive, but the state may not suppress all speech that offends with the club of the criminal law. ORS 166.065(1)(a)(B) criminalizes a harm that results only from a kind of expression — public insults through abusive words or gestures. The harm that the statute seeks to prevent — harassment or annoyance — generally is one against which the Oregon Constitution does not permit the criminal law to shield individuals when that harm is caused by another’s speech. For that reason, we conclude that the prohibition contained in ORS 166.065(1)(a)(B) is overbroad on its face and violates Article I, section 8, of the Oregon Constitution.(5) ” (link to full case)