Appeal from District Court, Josephine County. Allan H. Coon, Judge. No. 86-454-M.
Marc Kardell, Grants Pass, argued the cause and filed the brief for appellant.
Christine Chute, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Defendant appeals his conviction for unlawfully obtaining contents of communications. ORS 165.540(1)(c). He argues that the statute is unconstitutional under both the Oregon and United States Constitutions and that the trial court erred in denying his motion for a judgment of acquittal and in failing to admit evidence of the victim's bias. We reverse and remand.
In July, 1986, defendant, a reporter for a local newspaper, Freedom to Express, interviewed Deputy Graves of the Josephine County Sheriff's office. Graves testified at trial that, approximately five minutes after their conversation began, he noticed a shiny metal object protruding about an eighth of an inch out of defendant's shirt pocket. He testified that he asked defendant if the object was a recorder and whether it was on. Defendant allegedly reached into his shirt pocket and partially removed the recorder and stated, "It better be on." Graves testified that he then asked defendant if he knew that it was illegal to tape record a conversation without permission and that defendant said, "Yes," but indicated that in some cases he had to do that. Graves also testified that he then heard a click, which he believed was the sound of the recorder being turned off. The conversation continued for another 10 to 15 minutes. Graves never asked for the tape or the tape recorder and never saw a tape cassette in the recorder. Defendant was charged with unlawfully and knowingly obtaining and attempting to obtain a conversation by use of a tape recorder, ORS 165.540(1)(c), and was convicted.
ORS 165.540(1)(c) provides:
"[N]o person shall * * * [o]btain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if all participants in the conversation are not specifically informed that their conversation is being obtained."
Defendant argues that the statute is unconstitutionally overbroad and vague, in violation of Article I, section 8, and the First Amendment.
We examine defendant's state constitutional claims first. State v. Kennedy, 295 Or 260, 262-65, 666 P2d 1316
(1983). He argues that the statute is overbroad on its face. Generally, a statute is "overbroad" when its terms purport to reach conduct protected by the constitution. State v. Robertson, 293 Or 402, 410, 649 P2d 569 (1982). Defendant contends that the statute reaches conduct protected by Article I, section 8, namely, the right to speak and write freely on any subject whatsoever. See State v. Robertson, supra, 293 Or at 410.
Defendant argues that ORS 165.540(1)(c) is overbroad with respect to Article I, section 8, in two specific ways. First, he contends that the statute prevents the free exercise of his Article I, section 8, rights, because it forbids transcribing notes taken during a conversation, unless consent is given. However, the statute does not prevent that. In order to violate the statute, a person must (1) "obtain or attempt to obtain the whole or any part of a conversation," (2) by means of any device, contrivance, machine or apparatus when (3) "all ...