COVER STORY 38 NO. 2 500 WORDS Mad about the new sex shop on Southwest Barbur Neil Gust builds a new band LETTERS WW NEWS
Boulevard? Wish we could limit those obscene ROGUE OF THE WEEK campaign contributions in Oregon? Blame those BUSINESS ENVIRONMENT wacky framers of the Oregon Constitution and WW CULTURE £ £< &° £t- £2 0 a: r: Q MUSIC t ef
VOLUME 25. ISSUE 14 FEBRUARY 3. 1999
• --mm, m • VS."- ? 3 It's Free Speech, Stupid IN ITS WAR ON SMUT, CITY HALL WILL HAVE TO OVERTURN THE LEGACY OF THIS 74-YEAR-OLD RETIRED SUPREME COURT JUSTICE.
BY MAUREEN 0'HAG AN PAGE 2 2
COVE* PHOTO 8Y MICHAEL FAMISH WWEEK.COM 's Free Spee
JUL MAUREEN O'HAGAN
To some angry Portlanders, Southwest Barbur Heck, even Manhattan has managed to crack down on adult businesses. With the wave of Mayor Rudolph Boulevard is starting to look like Smut Street. Guiliani's wand of morality, 44 of New York's 144 adult In December, remodeling work began to trans- businesses have closed their doors since July of last year. form the former home of Bernie's Bagels and But as Portland residents have found out, those kinds of Boston Market into what is being billed as changes aren't so easy to make here. In case after case, the Oregon Supreme Court has ruled "Earth's Largest Adult Superstore." Soon, seeded that the state constitution prohibits government from reg- bagels will be replaced by seedy characters, ulating speech based solely on its content. There is one cream cheese by cheesecake. practical exception: Government may outlaw speech that When the construction started, there were already five causes actual harm, like extortion or defamation. other sex shops and strip bars operating along Barbur. These rulings don't protect just smut. They apply equally Considering the street abuts residential neighborhoods to all speech, be it artistic, political, commercial or even and is home to three schools, the whole thing just didn't obscene. They're the reason Oregon has no state-campaign seem right. finance limits—and why you see so many giant advertise- ments painted on buildings. Residents and business owners formed an organization "I think our constitution protects speech more than any called SIEGE to stop Castle Superstores from sullying their other in the nation," says lawyer and lobbyist John neighborhood. They want a zoning ordinance that would DiLorenzo, who used the free-speech protections to argue do two things: prohibit strip bars and sex shops from locat- successfully that campaign contributions are a form of ing near schools and houses, and prevent such businesses speech and therefore exempt from limits in Oregon. from clumping together into de facto red-light districts. In the sex debate, it boils down to this: Cities can't zone "Forty-eight other states have decided there is a problem adult businesses just because neighbors don't like them. when you have one or more of these businesses in an "It really sounds good in theory, like many ideas," says area," says Kathy Dienhart, a SIEGE spokeswoman. "If s a Susan Marshall, a lawyer who led an unsuccessful 1996 cam- conunon-sense zoning issue. That's the bottom line." paign to outlaw obscenity. "But can you put legs on it? And what happens when you do? We have adult businesses next to schools, parks, day-care centers and right in neighborhoods." Even die-hard liberals like Mayor Vera Katz are thinking about cracking down on porn. Two weeks ago, in her State of the City address, she said that she and the Portland City Council would push for a constitutional amendment to allow some zoning regulation of adult businesses. Last Thursday, The Oregoniarfs editorial called such constitu- tional tinkering "a necessity." Slam dunk? Hardly. Standing in their way will be the ACLU, bookstore owners and other free-speech advocates. Most daunting, however, is the legacy of a 74-year-old named Hans Iinde, the state's most formidable jurist and the man whose precedent-smashing insight led Oregon down this controversial path.
Ask most any Oregon lawyer to describe Hans Linde and it isn't long before youll hear about the retired justice's brain. Former Oregon Attorney General Dave Frohnmayer calls Linde a "brilliantly original thinker." University of Oregon
It doesn't look intimidating now, but neighbors are worried that their children will be harmed when they pass what will soon be a sex superstore on Southwest Barbur Boulevard. St u p i d
law professor Dominick Vetri describes him as one of the top-10 state court judges of the past 20 years—not only in Oregon but nationwide. Noted Harvard legal scholar Laurence Tribe called him "one of the nation's legal treasures," and late U.S. Supreme Court Justice William Brennan praised Linde's work. "He's sort of like Mark McGwire or Babe Ruth," says Jim Westwood, a local lawyer who ran for the state Supreme Court last year. "He's in a different league." As a state Supreme Court justice from 1976, when he was appointed by Gov. Hans Linde (above, today; left, standing at the far left with his col- Robert Straub, until his retirement in leagues in 1979) never served as chief justice on the Oregon Supreme 1990, Linde put Oregon's top tribunal on Court. Even so, people once referred to the state's top tribunal as the the map. "I think during the time he was "Linde Court." on the Court, it gained a good deal of national respect for a variety of reasons," Or maybe it's because he was an intellec- of her performing oral sex on someone said Stephen Kanter, a former dean at tual who didn't give a damn about public else. For that, Robertson was charged Lewis & Clark College's Northwestern reaction or convention or anybody else's with coercion. School of Law. "The court, in my opinion, sense of right and wrong. Whatever the There's no question that what would have been different without him reason, Linde made his mark—catapulted Robertson allegedly did was morally and lesser without him." himself into the national spotlight, in wrong, but that was irrelevant to his fact—with a single idea. You might say legal argument. Robertson challenged Unlike most other judges, Linde had lit- he was an Isaac Newton of jurispru- the charge on technical grounds, claim- tle courtroom experience before he served dence, a man whose flash of insight led ing that the law against coercion was on the bench. Instead, he spent most of to a radical way of looking at the world. invalid because it denied him his right to his life with his nose buried in books. "He does happen to look at things in free speech. His claim eventually made He was born in Germany in 1924 but ways that are different," says appellate its way up to the state Supreme Court. It moved with his family to Copenhagen, Judge Rex Armstrong, a former clerk of was up to the justices to decide whether Denmark, a short time later. Six months Linde's. "But when you realize the result Robertson was right about the law—not before the German occupation of the and what he's thinking about, it really whether his behavior was acceptable. city, in 1939, the family left for America. appears quite simple. It's the ability to The answer depended on which lens they At the time Linde was a teen, but he still have looked at something in a different would look through. carries the accent of his homeland. way that led to the insight that he had." Under the U.S. Constitution's First Academics—at Lincoln High School, A falling apple helped Newton Amendment—the document most lawyers Reed College and UC-Berkeley law expound the theory of gravity. and judges would routinely turn to school—were his lifeblood, a passion that You could say that Dwight Robertson under the circumstances—Robertson has never left him. In 1959 he began was Linde's falling apple. may not have had much of a case. But teaching constitutional law at the Linde looked somewhere else. University of Oregon, a position he held Robertson was a University of Oregon for almost two decades before being Years earlier, he realized one didn't appointed to the state Supreme Court. football player, a big man on campus necessarily need the federal government Since his retirement, he has taught at who, in 1978, along with a few friends, to protect citizens' rights. The U.S. Willamette University. allegedly gave a co-ed this ultimatum: If Constitution acts as a sort of "floor" that she didn't perform oral sex on them, sets the rights of all citizens. Each state, Maybe it's because he was an outsider. they would post a photograph they had continued on page 25
IN ITS WAR ON SMUT, CITY HALL WILL HAVE TO OVERTURN THE LEGACY OF THIS 74-YEAR-OLD RETIRED SUPREME COURT JUSTICE.
FEBRUARY 3, 1999 COVER STORY WW NEWS 23 W W NEWS COVER STORY
state constitutional interpretation, Free Speech O N SPEJLKLNG TERMS continued from pagt 2) citizens had no other recourse. His insight, which led other state however, is allowed to provide more "No law shall be passed restraining courts to adopt a similar methodolo- "Congress shall mate no rights to citizens than federal laws law...abridging the freedom of the free expression of opinion, or gy, has since been championed by require. Until Linde outlined the speech or of the press." restricting the right to speak, write, the political left. It has been used to idea of state constitutional interpre- First Amendment, or print freely on any subject whatev- secure Oregonians more protection tation, modern judges mostly U.S. Constitution er; but every person shall be respon- from police searches and to force ignored that extra breathing room sible for the abuse of this right." businesses to provide the same ben- for citizens. Article 1 Section 8, efits to gay couples as they do to "That was an astounding, signifi- Oregon Constitution married ones. But because of Linde's cant breakthrough," says Vetri. work Oregon's political right has also To a non-lawyer, this probably To most people these two statements may seem very similar, but to legal schol- won a battle or two, most notably in sounds like a no-brainer. After all, ars a few words can mean all the difference in the world. The justices of the winning gun owners more freedom Hans Linde had the we're in Oregon, so why not use our state Supreme Court have interpreted the first article of Oregon's Constitution, idea about state from government regulation. which is a little more emphatic than the First Amendment, to give citizens own constitution? The answer has to constitutional First, however, the state constitu- free-speech protections far broader than those conferred by the federal govern- do with a unique and volatile period analysis long ago. tion helped Robertson. In order to ment and most other states. in history. U.S. Supreme Court weigh his free-speech c l a i m s , Linde During the Civil Rights movement, Justice Douglas looked to Article 1 Section 8 of the it became clear that states couldn't wrote an opinion Oregon Constitution, which came into statute could pass muster only if it the road, though, it would have alluding to the sub- be trusted with the responsibility of effect in 1859. It reads, "No law shall met one of two tests: If coercion was tremendous impact. "These aren't ject when Linde protecting their own citizens. African be passed restraining the free expres- one of the exceptions to free-speech things that stir up a lot of attention served as his clerk Americans were being denied the sion of opinion, or restricting t h e protections recognized at the time of until their implications are con- in the mid-'50s. right to vote, schools were segregat- right to speak, write, or print freely the Oregon Constitution or if the fronted," says Portland City ed and police were abusing their on any subject whatever." The lan- statute was written in terms solely Attorney Jeff Rogers. authority. Armed with the U.S. guage of the U.S. Constitution's First addressing the ill effects of coercion. That would come later, as the free- Constitution, the federal government Amendment, enacted 68 years earlier, Neither was the case. Thus, Linde speech argument was pushed like an stepped in. With Chief Justice Earl is less specific and has been inter- reasoned in his unanimous opinion, expanding ladder—from protection Warren leading the charge, the U.S. preted less broadly (see "On Speaking the statute amounted to government for door-to-door soliciting to protec- Supreme Court began giving citizens Terms" above). censorship and was unconstitutional. tion for obscenity to protection for back their constitutional rights. To Linde and his colleagues, the Among lawyers Robertson became commercial advertising—to the point Then came the backlash. Under answer in the Robertson case was a fountainhead case because it laid at which even free-speech purists Chief Justice Warren Burger, who clear. The coercion statute clearly out a new, real-world framework f o r have begun to take pause. was more conservative than Warren was aimed at speech—that is, it pro- deciding free-speech cases, accord- and who served at the same time hibited threatening people in certain ing to Deputy Attorney General Until the late '80s, Oregon was like Linde was on the state court, those ways. That meant it was vulnerable David Schuman. most other states when it came to rights were either scaled back or left to being found unconstitutional. The Outside legal circles no one paid to wither. Until linde popularized much attention to the ruling. Down
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Earl Henry operated one of those businesses, a small adult bookstore. Unfortunately for him, it was located The U.S. Supreme in Redmond, where tolerance wasn't Court has allowed exactly high. In the early '80s, governments to undercover officers went into rank different kinds of speech and allot Henry's shop to buy some of his them various magazines. Then they got a search degrees of protec- warrant to seize anything in the tion. Some states store that was deemed "obscene." ban porn shops but "The police seized everything," allow political says Fidanque. "They cleaned him protests. out." Henry was charged in Deschutes County Circuit Court with dissemination of obscene material. By today's standards, Henry's shop would be considered tame. a date for passion: "Compared to all the adult businesses that operate in Portland today, it's almost like a night-and-day kind of thing," recalls lawyer Tim Sercombe, who helped defend Henry for the ACLU. "The evidence in trial was Portland's basically pictures of heterosexual sex, foreplay and intercourse. No animals Human Rights Campaign or children or anything like that." The jury convicted Henry none- theless, and he was sentenced to 60 Fund Raising Gala days in jail. In 1987, the state Supreme Court considered Henry's appeal. like Robertson, Henry claimed that his Saturday February 13, 1999 right to free speech had been violat- ed. He asked that the statute be Portland Hilton declared unconstitutional. This time, Justice Robert E. Jones Featured Speakers: Congressman Dick Gephardt, penned the opinion, which bore strong signs of Linde's thinking on Senator Ron Wyden, Activist David Mixner state constitutional analysis of free speech. "There wasn't a great deal of and Comedian Bob Smith Several states, debate about it," Jones now says. beginning with "We followed the Linde procedure, Tickets are $150 per person Vermont in 1821, which he pioneered, analyzing our passed obscenity constitution first before we did the statutes aimed at federal constitution.... We unani- the French postcard mously agreed it was not in the trade. thinking of the [framers of the Oregon Constitution] to censor adult readership. It was as simple as that." But Henry took a surprising step, one that makes Oregon law vastly different from federal law. In his rul- ing, Jones wrote, "In this state, any person can write, print, read, say, HUMAN show or sell anything to a consent- ing adult, even though that expres- RIGHTS sion may be generally or universally CAMPAIGN considered obscene." Jones, now a U.S. District Court Purchase Tickets by calling judge, is viewed as somewhat con- servative, making it all the more sur- 1-800-494-8497 prising that he and his colleagues still saw fit to find that obscenity is seven days a week from 7am to 4pm protected speech. "There had to be a hell of a lot of logic to Linde's suggestions for For More Information, Call 503/244-6951 those things to get adopted because those judges would probably be pre- WILLAMETTE disposed to say, 'We don't want to WEEK expand our free-speech clauses,'" Vetri explained. continued on page 29 COViR STORY r Chiropractic Emphasizes > Free Speech byist, is busy working the continued from page 26 Legislature to approve a constitu- PREVENTIVE Health Care tional amendment limiting strip bars Henry's conviction was over- and adult bookstores. Other local • Qualified professionals turned by a unanimous vote. Would Former Justice governments, like Medford's, are • Family practice he have gotten off the hook under Robert E. Jones' doing the same. • Wellness care the federal Constitution? "Absolutely Henry opinion put Some legal scholars say we're not," Jones says. The First • Nutritional and exercise his appointment to heading down a dangerous path. evaluation the federal bench in Amendment just doesn't offer as Furthermore, they say, these consti- • Certified in Chiropractic jeopardy. "They much protection. tution-changers are ignoring an kept me swinging i n Spinal Trauma A year after Henry's case was important part of the Tidyman rul- the wind for 16 overturned, another adult bookstore ing. According to Schuman, "Cities months," Jones Call for an appointment and owner scored the biggest victory of are perfectly capable of passing laws l)r Paula Conklin, says. make a commitment to health! D C . ( ( S T. them all, the one that is tormenting that prevent all the deleterious Vera Katz today. effects of nude dancing." But, he says, they must show that the busi- COIN I Neighborhood February 2 - 28 critics of Castle Reception February 4, 5:30 - 7:30 Superstores have promised a three- month picket once the store Portland opens. center for c o n t e m p o r a r y craft 3934 sw corbett ave. pdx/or 223 2654 be at least 500 feet from residences For example, a city could collect and schools, and in some zones they evidence showing a certain business had to be at least 1,000 feet away attracts prostitutes, litter or vandal- from each other. ism. Portland, however, hasn't made X T Several adult bookstores ignored In 1973, the U.S. any significant efforts to do so the ordinance and continued operat- Supreme Court ruled despite the deluge of citizen com- ing. In May 1983, the City had had in Milter vs. plaints every time a new adult busi- elehraie I he California that enough. It filed suit against the ness opens. f obscenity is not bookstore owners in a case that has So why hasn't the City of Portland considered protect- come to be known as Tidyman, the studied the alleged harm caused by J)ir in e ed speech under the name of one of the business owners. adult businesses? Rogers, the city First Amendment. John Ray Tidyman's attorneys attorney, says that while legal rulings Many states have A %/, .stan sung a familiar theme—their client's may theoretically allow cities to zone since adopted the rights to free speech were being vio- '/,„; /,,/. /I,,/,/„., < „ J , / L r Miller standards. adult businesses, it's difficult to doc- lated. The trial-court judge agreed. ument the actual harm they cause. 7V.v, „„/ ' >Urn/in ,,/s The city appealed the case to the Or maybe there's just no harm state Supreme Court. done. Police spokesman Derek (it",) J'J(>-(>(>'J() Harking back to his Robertson Anderson doesn't think adult book- analysis, Linde wrote that although stores have caused any particular j')() i // ' >L the City may have tried to describe law enforcement problems in nut ( the "harmful effects" of adult book- Portland. "It probably wouldn't go in " il/LJ. (>*,*•„ >72/0 stores in general terms, it didn't the plus column as far as a neigh- base its reasoning on any real facts. borhood is concerned," he says, "but In 1994 and 1996, Without that proof, the zoning ordi- it's not as big a negative as people there were initia- nance was obviously directed at might suspect." tives on the ballot speech alone. Therefore, it was THOUSANDS to bring the Oregon Mayoral spokeswoman Elisa unconstitutional. Constitution in line Dozono agrees—to a point. "Is there Sex-shop owners, like those who with the federal a criminal problem? No. Is there a OF QUALITY constitution i n have overtaken part of Southwest neighborhood problem? Yes." regard to obscenity. Barbur Boulevard, were free from That's why, for the City, it may be Both failed by mar- government interference. They could simpler to change the state consti- gins of at least 6 operate with no more oversight than tution than to meet the test laid ADULT VIDEOS percent. any Powell's, McMenamin's or down by Linde. Nature's. FOR Oregon had become the Free How do we measure the conse- Speech State. quences—both good and bad—of Oregon's broad protection of speech? A decade later, Oregon is about to $14.95 OR LESS! "Putting all speech in the same have this argument all over again. category is more pure," explains Jim Last week, SIEGE held a protest, one Huffman, dean of Lewis & Clark's law of many planned in an attempt to school. "But from the point of view V VALENTINE VIDEO V drive the new sex shop out of busi- of anybody who's worried about ness. Marge Kafoury, a Portland lob- 7320 ME Sandy Blvd. Portland, OH 1 1 FEBRUARY 3. 1999 COVER STORY W W NEWS 29 : "ft.*hLf-. !•>• i'1 dtJk Free Speech HOME OFFICE? continued from pagt 29 STARTING what's going on their back yard, it ^ CHECH OUT & 800/888 Numbers has its downsides." Customers prefer to call a toll-free Just ask Jim Francesconi. As a city RMEHICRN number Expands your business nation- commissioner and a lawyer, he's sym- VOICE MAIL pathetic both to the residents' com- B l Local & Nationwide plaints and to the constitutional argu- 0 Voice Mail The first reported ments. But Francesconi, who was a Answers your phone, or uie II give you a new Paging obscenity case in student of Iinde's at the University of phone number to give out Long Distance the United States Oregon, sees the issue as a balancing was Commonwealth test. When weighed against residents' Fax-On-Demand You find something to sell, we'll help p sell it Calling of Pennsylvania vs. concerns over their children, he says, The Hot Button in Sales Callers immeUi- Sharpless in 1815. for as little as $9 95 a month! the constitutional protections Justice ately receive sales literature, Sine/vise Merchant The first obscenity Linde espoused seem awfully eso- brochures, applications with the touch Accounts case involving a teric—particularly since adult busi- of a button Heeps your office open 24 American book (Memoirs of a So you can accept credit cards from Woman of Pleasure) nesses tend to locate in poorer neigh- hours a day your customers Nfoice Mail? was six years later borhoods, where residents already (503) 228-2551 America's Communication Provider EEJEIEIIl in Massachusetts. have enough to deal with. But how bad is the problem? SWEDISH MASSAGE • POLARITY • SPORTS MASSAGE Portland City Council members—all progressive liberals—say they can see the harm done to neighborhoods East-West College of the Healing Arts on the anguished faces of residents. A Professional School of Massage & Bodywork "Four hundred school children pass by this location every day on school buses, and hundreds of other chil- dren walk or are driven by daily," a SIEGE press release states, noting f l that marketing data shows 3,143 children live within 1 mile of the Training for Excellence site. But is what these children see— a sign that says "adult books" or "Girls, Girls, Girls"—any worse than Oregon's Only American Massage City Commissioner what they see in a Calvin Klein ad or Therapy Association/COMTA- Jim Francesconi calls sex shops and on MTV? Approved Massage Curriculum adult bookstores Even if it is, is it worth changing SOBs—sexually ori- the constitution over? ented businesses. Legal scholars, most of whom find no fault with the logic behind Linde's free-speech analysis, say there's got to be a better way. "Even if you think the court has failed, Day or Night Classes changing the constitution is not the Convenient Financing A Referral Brochure is Available for way to go," says Kanter, the former Lewis & Clark law school dean. Bookstore and Cafe Licensed Massage Therapists In the past 10 years, Oregonians in the Portland Area have rolled back constitutional pro- tections three times: first to insti- tute the death penalty in 1984, then to remove the provision barring "vin- The Robertson dictive justice" from the constitution framework nearly prohibited govern- and finally to change the protections ment from outlaw- against search and seizure in 1996. ing possession of (The last initiative was later over- child porn. In the turned by the Supreme Court.) Stoneman case, the Linde, who is no fan of nude state Supreme Court dancing, was reluctant to talk about upheld a statute how his legal analysis has been used banning such pho- to defend sex shops. But on the ENROLLING NOW FOR PROGRAMS THAT tos. issue of changing the state constitu- BEGIN APRIL 5 & JULY 5, 1999 tion, he stands firm. "What offends me as a constitutional professional is PUBLIC & CONTINUING EDUCATION treating a constitution as no differ- FEBRUARY ent from a city charter," says Linde. Friday the 5th INTRODUCTION TO MYOFASCIAL MASSAGE "It gets no respect. To change the 6pm-9pm/$40 140-year-old constitution over one Friday the 5th SHIATSU IN SIDE-LYING POSITION/6 9pm Friday essentially trivial issue doesn't both- Saturday the 6th 9am-4pm Saturday and Sunday/$150 er people. If people start saying we Sunday the 7th Prerequisite: Shiatsu I or instructor permission. can make ad hoc changes, then it's Saturday the 6th INTRODUCTION TO RELAXATION MASSAGE lost its efficacy." 10am-1pm/$20 The ACLU's Fidanque agrees. Saturday the 13th INTRODUCTION TO SHIATSU/9:30am-1 2:30pm/$10 "Nothing in the Oregon Constitution Saturday the 13th INTRODUCTION TO ASTON PATTERNING® today prevents local government 10am-2pm/$40 from regulating businesses," he says. Saturday the 13th MYOFASCIAL TRIGGER POINT THERAPY-UPPER BODY "The only thing the Oregon 10am-1pm/$45 Constitution says is you can't regu- Saturday the 13th COUPLES MASSAGE/10am-5pm/$150 per couple late a business based on the content 4531 SE Belmont Street • Portland, Oregon 97215-1635 of the expression that's taking place 503-231-1500 • 1-800-635-9141 inside. That, to me, seems to be a 503-232-4087 fax • wvAv.ewcha.com pretty good prindple." MM DEEP TISSUE MASSAGE • ANATOMY AND PHYSIOLOGY 10 I 0? 03 1999 • - { nrw^ rJtAZ.