This post examines a recent opinion from the Court of Appeals of Oregon: State v. Hirschman, 2016 WL 3675617 (2016). The court begins by explaining that
[a]cting as a self-described `Internet
troll,’ defendant posted an advertisement on Craigslist, stating that he would
give $20 to a person who would bring the person's official ballot to defendant,
let defendant complete it, then sign the person's own name and submit the
ballot to an elections volunteer. It is undisputed that defendant did not
intend to actually vote using another person's ballot. To the contrary, the state
acknowledged that defendant's motives were `political shenanigans * * * on the
Internet’ and `entertainment.’ Nonetheless, the state charged defendant with
knowingly violating Oregon Revised Statutes §260.715(9), which prohibits making
an `offer to purchase, for money or other valuable consideration, any official
ballot.’ The trial court convicted defendant after rejecting his arguments
that Oregon Revised Statutes §260.715(9) unconstitutionally abridges
expression and that his actions had not violated the statute.
State v. Hirschman,
supra.
The court went on to explain that
[o]n appeal, the parties dispute the
meaning of certain terms used in §260.715(9). They also disagree about
whether the statute, as properly construed, violates various constitutional
provisions, including Article I, section 8, of the Oregon Constitution. We conclude, as explained below, that
defendant's actions violated Oregon Revised Statutes §260.715(9). That is,
by making the Craigslist posting, defendant did `offer to purchase’ a ballot,
because his words communicated that he was proposing to acquire another
person's ballot in exchange for money. However, we also conclude that the statutory
prohibition on making an `offer to purchase’ a ballot is facially unconstitutional
because, by its terms, it criminalizes expression and is not wholly contained
within a well-established historical exception to the protections of Article I,
section 8. Accordingly, the trial court should have granted defendant's demurrer. Because it did not, we reverse and remand.
State v. Hirschman,
supra.
The Court of Appeals began its analysis of the issues in the
case by explaining that
[t]he facts are not in dispute. A few
days before the 2010 general election, defendant posted on the Craigslist political
forum website. The posting stated,
`Wanna make an easy $20 for voting?
(Downtown Bend)’
`Are you interested in making a quick
and easy $20? Meet us in the parking lot downtown near the drop off voting
booth this weekend. All you need to do is bring your UNFILLED clean voting
ballot and let us fill it out then you sign, and we hand it to the volunteer in
the voting booth. Its [sic] that simple! Then you get $20. We'll be
there all weekend through [T]uesday.’
(Boldface in original.) Craigslist deleted
the post within half an hour. Although the posting included a link allowing
people to reply to defendant's message, he did not get any responses during the
brief time the message was posted.
A Bend police officer investigated
defendant's posting. He went to the ballot drop off site but did not see any
suspicious activity. The Oregon Secretary of State's office then opened an
investigation and referred the matter to Oregon Department of Justice Special Agent Todd Gray. Gray traced the posting to defendant. During defendant's
subsequent interview with Gray and another agent, he was `compliant and
cooperative.’ Gray testified that defendant seemed `shocked that what he had
done had risen to the level to have two special agents from the Attorney
General's Office interviewing him.’
During the interview, defendant
acknowledged that he had created the Craigslist posting. Defendant maintained,
however, that he had not purchased or attempted to purchase official ballots.
Instead, he contended that he `was basically making a mockery of the system,
and more so than anything, playing around, goofing around on the Internet.’
Further, defendant stated, `There's a lot of vulgarity there, and then people's
political opinions, and I felt like I needed to chime in.’
State v. Hirschman,
supra (emphasis in the original).
The opinion goes on to explain that the
state charged defendant by district
attorney's information with knowingly offering to purchase official ballots in
violation of Oregon Revised Statutes §260.715(9). Defendant demurred to the
information before trial, contending that Oregon Revised Statutes
§260.715(9) facially violates the free speech protections of the state and
federal constitutions. In arguing that Oregon Revised Statutes §260.715(9)
violates Article I, section 8, of the Oregon Constitution, defendant asserted,
among other things, that the statute directly regulates speech and is not
wholly contained within a well-established historical exception to section 8's
protections.
The trial court denied defendant's
demurrer. Specifically, the court concluded, in part, `that Oregon Revised
Statutes §260.715(9) is directed at harmful effects. * * * The statute is not
directed at the content of speech; the statute prohibits conduct, specifically a
type of commerce rather than speech itself.’ Additionally, the court concluded
that the statute is not overbroad or unconstitutionally vague. In so deciding,
the court accepted the state's definition of `offer’ as being `a proposal to
enter into a bargain wherein a ballot is exchanged for consideration,’
regardless of whether the person making the offer subjectively intended to
complete the transaction.
During a discussion of proposed jury
instructions, the parties again debated the meaning of the word `offer.’ In
that context, the trial court rejected defendant's argument that a
communication qualifies as an `offer’ only if the offeror `actually intend[s]
to enter into the contract.’ To the contrary, the court reasoned that `offer’
means `a proposal communicated by either words, conduct, or both that would
reasonably lead the party to whom it is made to believe that the proposal is
intended to create a contract, if accepted,’ without regard to the offeror's
subjective intent.
State v. Hirschman,
supra.
The Court of of Appeals also pointed out that,
[d]uring the subsequent bench trial,
the state stipulated that defendant's `motive’ was `political shenanigans’ and
to be an `internet troll,’ `meaning a person who takes contrarian positions online
in an effort to agitate others.’ The state also stipulated that there was no
evidence that defendant actually tried to purchase an official ballot. Moreover,
the state recognized that `people do post crazy political satirical things to
the Internet, and they do so on the same page in which [defendant] posted this
advertisement.’ Defendant testified at trial that he did not believe that a
reasonable person would understand his post as making a serious offer to
purchase a ballot. He also stated that, in hindsight, he wished his post had
specified that it was satirical, but hedged: `obviously it's not a good
joke if you put that at the end, because then you don't get the response.’
After the state rested, defendant moved
for judgment of acquittal, contending, in part, that he `did not offer to
purchase an official ballot for money.’ (Emphasis in original.) In
essence, defendant contended that he had not offered to `purchase’ a ballot,
but had offered money only for the privilege of completing the ballot.
Additionally, defendant argued that he had not knowingly or intentionally made
an `offer,’ because no reasonable person would believe that his post manifested
an actual intent to purchase a ballot and because a person does not `offer’ to
purchase a ballot, as that term is used in Oregon Revised Statutes
§260.715(9), unless the person intends to complete the transaction. The court
denied defendant's motion. Defendant raised similar points, again
unsuccessfully, during his closing argument. The court again rejected those
arguments, found defendant guilty, and sentenced him to 12 months of bench probation.
State v. Hirschman,
supra (emphasis in the original).
The Court of Appeals then summarized the issues raised by
Hirschman’s appeal:
Defendant appeals, renewing his
challenges to the trial court's interpretation of `purchase’ and `offer’ and,
alternatively, his challenges to the constitutionality of Oregon Revised
Statutes §260.715(9). Specifically, defendant asserts that the trial court
erred in three respects: (1) in disallowing defendant's demurrer, which
challenged the facial constitutionality of Oregon Revised Statutes §260.715(9);
(2) in permitting `the state to elect a theory of Oregon Revised Statutes
§260.715(9) that interpreted “offer” to have the same definition as the Uniform
Civil Jury Instructions’; and (3) in denying defendant's motion for judgment of
acquittal, particularly referencing the court's interpretation of `purchase’
and `offer.’ We begin our analysis by considering the statutory-interpretation
issues raised in defendant's challenge to the denial of his motion for judgment
of acquittal. See State v. Rodriguez-Moreno, 273 Or. App. 627, 633 n.6, 359 P.3d 532
(2015), rev. den, 358 Or. 611, 369 P.3d 386 (2016) (courts generally
address statutory arguments before constitutional arguments, and address state
constitutional arguments before those based on the federal constitution). We
then address defendant's contention that the trial court should have granted his
demurrer.
State v. Hirschman,
supra.
The court began its analysis of the issues in the case by
explaining that
`[w]e review the denial of a motion for
judgment of acquittal to determine whether, ‘after viewing the evidence in the
light most favorable to the state, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.’ State
v. Pedersen, 242 Or. App. 305, 311, 255 P.3d 556, rev. den., 351 Or. 254
[264 P.3d 556, rev. den, 351 Or. 254 [264 P.3d 1285] (2011) (internal quotation
marks omitted). However, when ‘the dispute * * * centers on the meaning of the
statute defining the offense, the issue is one of statutory construction,’
which we review for legal error. State
v. Hunt, 270 Or. App. 206, 210, 346 P.3d 1285 (2015) (internal quotation marks
omitted).’
State
v. Summers, 277 Or. App. 412, 371 P.3d 1223 (2016). We review a trial
court's denial of a demurrer for legal error. State v. Woodall, 259 Or. App. 67, 69, 313 P.3d 298 (2013), rev.
den., 354 OR. 735, 320 P.3d 567 (2014).
State v. Hirschman,
supra.
The Court of Appeals then took up Hirschman’s motion for a
judgment of acquittal:
Again, defendant was charged with
knowingly violating Oregon Revised Statutes §260.715(9), which provides
in, pertinent part: `A person may not * * * offer to purchase, for money or
other valuable consideration, any official ballot * * *.’ Defendant first
argues that he was entitled to a judgment of acquittal because his Craigslist
posting did not offer to `purchase’ a ballot. In defendant's view, to
`purchase’ a ballot means `to acquire or take ownership of’ that tangible
object. He contends that his posting suggested only that defendant wanted
to use another person's ballot, for a short period of time, by
completing it and giving it back to that person, who would then sign the
completed ballot. Such an action does not, according to defendant, amount to a
`purchase.’
The state acknowledges that the term
`purchase’ can, as defendant asserts, mean the acquisition of a tangible
object. The state argues, however, that the term also encompasses the act of
buying the intangible right to use an object.
We need not resolve the parties'
disagreement about the extent to which the word `purchase,’ as used in Oregon
Revised Statutes §260.715(9) may (or may not) extend to acquiring intangible
rights to use a ballot or one of the other items listed. As the parties agree,
the plain meaning of `purchase’ includes the act of paying money to acquire an
object. See State v. Briney, 345
Or. 505, 511, 200 P.3d 550 (Oregon Supreme Court 2008) (courts give an undefined term of
common usage a `plain, ordinary meaning’). Here, the evidence is
sufficient to support a finding that defendant offered to make just that kind
of purchase. Again, his Craigslist posting stated, in part:
`Meet us in the
parking lot downtown near the drop off voting booth this weekend. All you need
to do is bring your UNFILLED clean voting ballot and let us fill
it out then you sign, and we hand it to the volunteer in the
voting booth. Its [sic] that simple! Then you get $20.’
(Emphases added.) That posting proposed
that an elector give defendant and some unknown other person (`us’) a ballot to
fill out, that the elector then sign the ballot, and that defendant and his
accomplice (`we’) then hand in the ballot. Thus, the posting suggested that
defendant wished to pay $20 to divest an elector of a ballot and acquire it
himself, albeit for a short period of time, before he and an accomplice would
hand it over to an elections volunteer. That acquisition of a tangible ballot
in exchange for money would constitute a `purchase’ within the plain meaning of
that term, even though defendant stated that he planned to keep the ballot only
temporarily. The trial court did not err by denying defendant's motion for
judgment of acquittal to the extent it was based on defendant's contention that
what he proposed was not a `purchase.’
State v. Hirschman,
supra.
The opinion went on to explain that
Defendant also contends that the state
failed to prove that he made an `offer’ at all. In his view, the phrase `offer
to purchase,’ as that phrase is used in Oregon Revised Statutes
§260.715(9), carries a requirement that the state prove that the offeror intend
to follow through with the purchase. The state contends that `offer’ carries
its plain meaning and it therefore suggests that Oregon Revised Statutes
§260.715(9) `prohibit[s] any statement that a reasonable person would
understand to be a proposal to buy or sell a ballot.’ The state argues in its
brief that giving the word `offer’ that meaning—which does not require proof
that the offeror intended to carry through with the purchase—reflects
legislative intent `to prevent not only realized misconduct,
but also the enabling of misconduct (such as the creation of a
marketplace for ballots) as well as the public perception that election results
are untrustworthy because ballots are for sale.’ (Emphases in original.)
State v. Hirschman,
supra (emphasis in the original).
The court then explained that it was going to begin its
analysis of the issues in the case
with the words of the statute
itself. See Bundy v. NuStar GP, LLC, 277 Or. App. 785, 793, __P.3d __ (2016) (in construing a
statute, `we give primary weight to the text and context of the provision”).
The term `offer’ is not statutorily defined for purposes of Oregon Revised
Statutes §260.715(9) so we consider its dictionary definition. Webster's
defines `offer’ as `to present for acceptance or rejection * * * an action
or movement indicating a purpose or intention of doing something.’ Webster's
Third New Int'l Dictionary 1566 (unabridged ed. 1993). That definition
looks only to what the offeror's actions would objectively indicate to
another person, not to what the offeror may subjectively intend.
Similarly, Black's Law Dictionary 1189 (10th ed. 2014) defines
`offer’ as
`1. The act or an instance of
presenting something for acceptance; specif., a statement that one is willing
to do something for another person or to give that person something * * * 2. A
promise to do or refrain from doing some specified thing in the future,
conditioned on an act, forbearance, or return promise being given in exchange
for the promise or its performance; a display of willingness to enter into a
contract on specified terms, made in a way that would lead a reasonable person
to understand that an acceptance, having been sought, will result in a binding
contract.’
Like Webster's, Black's definition
of `offer’ focuses on the offeror's actions and what they “would lead a
reasonable person to understand,” and does not reflect anything about the
offeror's subjective intent. Thus, the dictionary definitions of the word are
consistent with the trial court's determination that `offer,’ as used in Oregon
Revised Statutes §260.715(9), relates to the message that the offeror has
conveyed, and that it does not require the state to prove that a person charged
with offering to purchase a ballot actually intended to follow through with the
purchase. We conclude that the word `offer’ means, in this context, a
communication that would objectively be understood as proposing to engage in a
described transaction. . . .
In sum, the trial court did not err
when it rejected defendant's contention that the phrase `offer to purchase,' as
used in Oregon Revised Statutes §260.715(9), encompasses a requirement
that the person charged with violating the statute have subjectively intended
to follow through on that offer if it were accepted. The trial court correctly
denied defendant's motion for judgment of acquittal to the extent it was
premised on that interpretation of the statute.
State v. Hirschman,
supra.
Next, the Court of Appeals explained that
[t]o recap: in rejecting defendant's
challenge to the denial of his motion, we have concluded that a person `offer[s]
to purchase * * * any official ballot,’ for purposes of Oregon Revised
Statutes §260.715(9), if the person communicates a message that objectively
would be understood as proposing to purchase the right to use another person's
ballot. With that understanding in mind, we turn to defendant's argument that
the trial court should have granted his demurrer because the statute abridges
expression in violation of Article I, section 8.
State v. Hirschman,
supra.
The court pointed out that that Article I, section 8, of the
Oregon Constitution, provides: `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; but every person shall be responsible for the
abuse of this right.’ It also explained
that “[u]nder the analytical framework described in State v. Robertson, 293 Or. 402, 649 P.2d 569 (Oregon Supreme Court
1982), we determine into which of three categories the challenged statute
falls.” State v. Hirschman, supra.
The Court of Appeals went on to describe the three Robertson categories:
`Under the first category, the court
begins by determining whether a law is ‘written in terms directed to the
substance of any opinion or any subject of communication.’ . . . State v. Robertson, supra. If it is,
then the law is unconstitutional, unless the scope of the restraint is ‘wholly
confined within some historical exception that was well established when the
first American guarantees of freedom of expression were adopted and that the
guarantees then or in 1859 demonstrably were not intended to reach.’. . . If
the law survives that inquiry, then the court determines whether the law
focuses on forbidden effects and ‘the proscribed means [of causing those
effects] include speech or writing,’ or whether it is ‘directed only against
causing the forbidden effects.’ . . . If the law focuses on forbidden
effects, and the proscribed means of causing those effects include expression,
then the law is analyzed under the second Robertson category. Under that category, the court determines
whether the law is overbroad, and, if so, whether it is capable of being
narrowed. State v. Robertson, supra.
If, on the other hand, the law focuses only on forbidden effects, then the
law is in the third Robertson category,
and an individual can challenge the law as applied to that individual's
circumstances. State v. Robertson,
supra.
State v. Hirschman,
supra.
The court went on to explain that
[f]or two reasons, we readily conclude
that the statutory provision is, by its terms, directed toward the content of
expression. First, as noted, we have construed the term `offer to purchase’ to
mean a communication that objectively conveys a proposal to purchase another
person's ballot. Thus, by prohibiting the making of such an offer, the
legislature has criminalized the act of communicating a certain message.
Because a person can violate the pertinent part of Oregon Revised Statutes
§ 260.715(9), only through
expression—by communicating the prohibited message—that part of the statute
appears, by its terms, to fall within the first Robertson category. See State v. Moyer, 348 Or. 220, 232, 230 P.3d 7 (2010)
(statute prohibiting making a campaign contribution in a false name fell within
the first Robertson category
because `the falsity that the statute prohibits can only be achieved through
expression—through one person's communication of a falsehood to another person’).
Second, Oregon Revised Statutes §
260.715(9), is not specifically directed against any harmful effects of
the prohibited communication in a way that would bring the statute within the
second Robertson category. Even
assuming that the state has accurately characterized the harms that the
legislature may have hoped to prevent, a person's communications can
violate Oregon Revised Statutes § 260.715(9), whether or not the
targeted harms occur. Thus, defendant's Craigslist posting violated the
statutory prohibition against offering to purchase a ballot without regard to
whether, in fact, that posting created public doubt in the validity of
elections or the appearance of fraud. . . .
State v. Hirschman,
supra (emphasis in the original).
Therefore, the court explained because the State, i.e., the
prosecution, had not
suggested any other well-established
historical exception to Article I, section 8, protections that might apply to the
restriction on expression that Oregon Revised Statutes § 260.715(9), imposes,
and we are not aware of one. Nonetheless, the state argues more broadly
that `a historical exception exists authorizing the government to closely
regulate the electoral system in order to ensure the accuracy and validity of
its results, as well as public trust in the accuracy and validity of those
results.’ The state's argument reduces to a contention that any election
law designed to promote public trust in the state's election system must be
constitutional, even though it restricts speech.
That argument . . . cannot withstand Vannatta v. Keisling, 324 Or. 514, 931
P.3E 770 (1997), in which the Supreme Court rejected an analogous argument
offered in support of statutes restricting campaign contributions. In that
case, an amicus had argued `that the harm targeted by the
contribution limitations is the existence of undue influence in the political
process, or at least the appearance thereof.’ Id. at 539, 931 P.2d 770 In
dismissing the argument as having `select[ed] a phenomenon and label[ed] it as
a ‘harm,’ the court observed that,
`if the purpose of the limitation
simply is to improve the ‘tone’ of campaigns, as [the amicus] seems at bottom
to be arguing, the constitutional answer must be even clearer: The right to
speak, write, or print freely on any subject whatever cannot be limited
whenever it may be said that elimination of a particular form of expression
might make the electorate feel more optimistic about the integrity of the
political process. A contrary result would make illusory the protections
afforded by Article I, section 8.’
Id.
The same is true here. No matter how much one might wish to reduce cynicism
about elections (and any justifications for that cynicism), the legislature
cannot accomplish that goal by suppressing expression because of the `supposed
harm that the message itself might be presumed to cause to the hearer or to
society.’ State v. Ciancelli, 339 Or. 282, 318, 121 P.3d 613 (2005). But
that is exactly what the pertinent part of Oregon Revised Statutes §
260.715(9) does.
In sum, the statutory prohibition on
making an `offer to purchase’ a ballot, contained in Oregon Revised
Statutes § 260.715(9), violates Article I, section 8, of the Oregon Constitution. The trial court erred when it denied defendant's demurrer
to the information, which charged him with violating that statute.
State v. Hirschman,
supra.
The court therefore reversed Hirschman’s conviction and
remanded the case to the trial court for further proceedings. State
v. Hirschman, supra.
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