The Oregon Supreme Court last month overturned a state law that banned live sex performances. It simultaneously struck down a Nyssa, Ore. city ordinance that required strip club patrons and performers to maintain a distance of four feet from each other.
The Oregon Constitution has a guarantee that “No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever.”
As members of the press, we value this protection. In fact, Oregonians are fortunate that our state law goes above-and-beyond the U.S. Constitution, protecting expression that other states deem illegal because it’s “obscene,” even if it offends a portion of the population.
In its rulings on these complicated cases, the court elaborates on a long-standing legal debate about just how far this constitutional protection extends today. It does so using a legal framework set forth by State v. Robertson (1982).
In essence, Robertson requires the state to defend laws restricting the freedom of expression by proving that the Oregon Constitution’s framers intended for that restraint to be an exception.
In this case, the court assumed, for the sake of argument, that U.S. law generally prohibited live sex shows at the time the constitution was adopted and afterward. Yet the court decided anti-sex show laws were designed to protect the viewer from a certain message rather than prevent harm to individuals or groups; the court points out the law in question criminalizes sex acts “only when they occur in an expressive context, i.e., in a ‘live public show.’”
Because the law was aimed at expression, the court held that the state must prove the framers wanted sex shows to be an exception to expression rights. Ultimately, the court found there was not sufficient evidence to warrant an exception.
After careful reading of the case, we don’t disagree with the court’s legal reasoning. The ruling is clear and logical; we agree the laws were intended to prevent the message of live sex shows based on certain societal values of the period.
Yet we, like many Oregonians, were initially shocked by the ruling. We oppose the legalization of live sex shows or other sexual acts involving payment.
The court’s ruling is also something of a cop-out; we’re fairly positive that the document’s authors were not considering the issue of girl-on-girl mutual masturbation when they crafted our constitutional right to “free expression of opinion.” Moreover, requiring someone to prove the framers were or were not thinking about strippers performing oral sex on one another is an unfeasible burden.
The real issue in this debate should be the potential harm that can arise from live sex shows.
Business managers at clubs argue that those involved in sex shows are consenting adults who deserve their rights to free expression. Yet such a viewpoint ignores the slippery slope from nude dancing to prostitution.
In a strip club, dancing on stage garners less money than a lap dance, which garners far less money than a private sex encounter with a John in a motel room. Such monetary earning patterns partially explain how strippers become gradually more comfortable with the idea of prostitution.
As long as prostitution remains morally objectionable in Oregon, the legality of live sex shows should not be validated by the court. The Oregon Legislature should address this issue by crafting laws that specifically prohibit the exchange of sex for money.
The court’s decision to authorize private sex performances is in compliance with neither the values of constitutional framers, nor with the values of most Oregon citizens today.