S057570, Opinion — Vannatta v. Oregon Government Ethics Comm.

449
Argued and submitted August 13, order of circuit court affirmed in part and
reversed in part, and case remanded to circuit court for further proceedings
December 31, 2009
Fred VANNATTA
and Center To Protect Free Speech, Inc.,
an Oregon Not-For-Profit Corporation,
Plaintiffs-Appellants,
v.
OREGON GOVERNMENT ETHICS COMMISSION,
formerly known as the
Oregon Government Standards and Practices Commission;
and State of Oregon,
Defendants-Respondents.
(CC 07C20464; CA A140080; SC S057570)
222 P3d 1077

450 	Vannatta v. Oregon Government Ethics Comm.
CJS, Statutes§ 7.
En Banc
On certified review from the Court of Appeals on appeal
from a judgment of the Circuit Court for Marion County,
Joseph C. Guimond, Judge.
John 	DiLorenzo, 	Jr., 	Davis 	Wright 	Tremaine 	LLP,
Portland, argued the cause for plaintiffs-appellants. With
him on the briefs were Gregory A. Chaimov, Aaron K.
Stuckey, and Alan J. Galloway.
Anna 	M. 	Joyce, 	Assistant Attorney 	General, 	Salem,
argued the cause for defendants-respondents. With her on
the brief were John R. Kroger, Attorney General, and Jerome
Lidz, Solicitor General.
Linda 	K. 	Williams, 	Portland, 	and 	Daniel 	W. 	Meek,
Portland, filed a brief on behalf of amici curiae Joan Horton,
Ken Lewis, Bryn Hazell, Francis Nelson, Tom Civiletti,
David Delk, and Gary Duell.
DE MUNIZ, C. J.
The order of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit court
for further proceedings.

Cite as 34 7 Or 	451
DE MUNIZ, C. J.
Plaintiffs Fred Vannatta and Center To Protect Free
Speech, Inc., brought this action for declaratory and injunc-
tive relief, asserting that ORS 244.025(1) 	(4) and ORS
244.042 (which, in general terms, regulate the solicitation,
offering, and receipt of gifts by certain public and other per-
sons) violate Article I, sections 8 and 26, of the Oregon
Constitution and the First Amendment to the United States
Constitution and therefore are unenforceable. We discuss the
content of those statutes in greater detail below.
The trial court rejected 	plaintiffs' constitutional
arguments and granted summary judgment in favor of defen-
dants (the state). On review, this court views the facts and all
reasonable inferences that may be drawn from them in favor
of the nonmoving party-in this case, plaintiffs. Jones v.
General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997).
Summary judgment is appropriate if there is no genuine
issue of material fact and the moving party is entitled to judg-
ment as a matter of law. ORCP 47 C. Plaintiffs assert that
there are no factual disputes in this case and that this court
should review the trial court's decision for errors oflaw. The
state does not contest that characterization.
We take the facts from the trial court record on sum-
mary judgment. Plaintiff Center To Protect Free Speech, Inc.
(Center) is 	a 	not-for-profit Oregon corporation. 	Plaintiff
Vannatta is an elector and taxpayer and serves as the presi-
dent of and registered lobbyist for Center. As described in
their amended complaint, Vannatta and Center intend to
engage in conduct that would violate the statutory gift
restrictions in ORS chapter 244, including:
"[O]btaining the good will of public officials and candidates
for public office through offering and providing public offi-
cials, their families and candidates for public office enter-
tainment, business meals with an aggregate value of more
than $50 in a calendar year in connection with their discus-
sions, and honorariums in connection with official duties."
Plaintiffs assert that, because of the restrictions in ORS
244.025 and ORS 244.042, "plaintiffs and some (but not all)
other lobbyists in Oregon are prevented from engaging" in

452 	Vannatta v. Oregon Government Ethics Comm.
those activities and those activities are forms of expression
protected by the state and federal constitutions.
In a letter opinion, the trial court agreed with plain-
tiffs that the statutes at issue in this case regulate gifts that
are forms of constitutionally protected expression. However,
the trial court concluded that the regulation of that form of
expression is permissible, in part because giving gifts to
public officials or candidates can create the appearance of
bribery, corruption, and impropriety. The trial court later
entered a general judgment in favor of the state that declared
that the statutory provisions challenged by plaintiffs are
valid and enforceable. 1
' Plaintiffs appealed the judgment, and, pursuant to Oregon Laws 2009, chap·
ter 277, section 1, the parties filed a joint motion in the Court of Appeals to certify
the appeal to this court. As required, the Court of Appeals granted that motion on
July 13, 2009, and this court accepted certification that same day.
ORS 244.025 provides, in part:
"(1) During a calendar year, a public official, a candidate for public office
or a relative or member of the household of the public official or candidate may
not solicit or receive, directly or indirectly, any gift or gifts with an aggregate
value in excess of$50 from any single source that could reasonably be known to
have a legislative or administrative interest in any governmental agency in
which the public official holds, or the candidate if elected would hold, any offi-
cial position or over which the public official exercises, or the candidate if
elected would exercise, any authority.
"(2) During a calendar year, a person who has a legislative or administra-
tive interest in any governmental agency in which a public official holds any
official position or over which the public official exercises any authority may
not offer to the public official or a relative or member of the household of the
public official any gift or 	with an aggregate value in excess of$50.
"(3) During a calendar year, a person who has a legislative or administra-
tive interest in any governmental agency in which a candidate for public office
if elected would hold any official position or over which the candidate if elected
would exercise any authority may not offer to the candidate or a relative or
member of the household of the candidate any gift or gifts with an aggregate
value in excess of$50.
"(4) Notwithstanding subsection (1) of this section:
"(a) A public official, a candidate for public office or a relative or member
of the household of the public official or candidate may not solicit or receive,
directly or indirectly, any gift of payment of expenses for entertainment from
any single source that could reasonably be known to have a legislative or
administrative interest in any governmental agency in which the public official
holds, or the candidate if elected would hold, any official position or over which
the public official exercises, or the candidate if elected would exercise, any
authority.
"(b) A person who has a legislative or administrative interest in any gov-
ernmental agency in which a public official holds any official position or over

Cite as 347 Or 449 	453
In this court, plaintiffs argue that ORS 244.025 2 and
ORS 244.042 3 impermissibly restrain free expression and
lobbying activities in violation of Article I, section 8, of the
Oregon Constitution and the First Amendment to the United
States Constitution by, 	among other things, prohibiting
expenditures designed to facilitate dialogue and obtain good-
will with public officials. Plaintiffs also argue that the restric-
tions impermissibly discriminate between different types of
speech and different classifications of speakers. Finally,
plaintiffs argue that the statutory restrictions violate Article
I, section 26, of the Oregon Constitution in that they imper-
missibly restrain plaintiffs' rights to instruct their represen-
tatives and to apply to the Legislative Assembly for the
redress of grievances.
ORS chapter 244, sometimes described as the "code
of government ethics," was referred to the people by the leg-
islature and adopted by the voters in 197 4. ORS chapter 244
is designed" 'to deter violation of the legislative policy of safe-
guarding the public trust inherent in holding a public office.' "
City of Tualatin v. City-County Ins. Services Trust, 321 Or
which the public official exercises any authority may not offer to the public offi-
cial or a relative or member of the household of the public official any gift of
payment of expenses for entertainment.
"(cl A person who has a legislative or administrative interest in any gov-
ernmental agency in which a candidate for public office if elected would hold
any official position or over which the candidate if elected would exercise any
authority may not offer to the candidate or a relative or member of the house-
hold of the candidate any gift of payment of expenses for entertainment."
ORS 244.042 provides:
"(1) Except as provided in subsection (3) of this section, a public official
may not solicit or receive, whether directly or indirectly, honoraria for the pub-
lic official or any member of the household of the public official ifthe honoraria
are solicited or received in connection with the official duties of the public
official.
"(2) Except as provided in subsection (3) of this section, a candidate for
public office may not solicit or receive, whether directly or indirectly, honoraria
for the candidate or any member of the household of the candidate if the hon-
oraria are solicited or received in connection with the official duties of the pub-
lic office for which the person is a candidate.
"(3) This section does not prohibit:
"(a) The solicitation or receipt of an honorarium or a certificate, plaque,
commemorative token or other item with a value of$50 or less; or
"(b) The solicitation or receipt of an honorarium for services performed in
relation to the private profession, occupation, avocation or expertise of the pub-
lic official or candidate."

454 	Vannatta v. Oregon Government Ethics Comm.
164, 172, 894 P2d 1158 (1995) (quoting Groener v. Oregon
Gov't Ethics Comm., 59 Or App 459, 469, 651 P2d 736 (1982)).
Since its enactment, the code of government ethics has placed
restrictions on the solicitation and receipt of gifts or favors in
excess of $100 by public officials or candidates for office.
Former ORS 244.040(1) - (2), (5) (2005). In 2007, however, the
legislature enacted Senate Bill (SB) 10 (2007), which made
several amendments 	to 	the code 	of government 	ethics,
including lowering the monetary limit on certain gifts to $50.
Or Laws 2007, ch 877, § 18. Plaintiffs challenge is directed to
those 2007 legislative changes. 4
ORS 244.025(1) - (4) and ORS 244.042 enact several
distinct restrictions concerning gift giving to public officials.
Those restrictions fall into three categories. The first cate-
gory, 	set forth 	in ORS 244.025(1) 	and (4)(a) 	and ORS
244.042(1) and (2), restricts the receipt of specified gifts or
gifts of payment for entertainment expenses. 5 The second
4 During the 2009 legislative session. the legislature enacted Senate Bill (SB)
30 (2009), which amended several portions of ORS chapter 244, including ORS
244.020, ORS 244.025, and ORS 244.042. Because those amendments have no
bearing on our discussion below, we refer to the 2007 version of the statute
throughout this opinion.
5 ORS 244.020(5)(a) defines "gift" as:
"[S]omething of economic value given to a public official or a relative or mem-
ber of the household of the public official:
"(A) Without valuable consideration of equivalent value, including the full
or partial forgiveness of indebtedness, which is not extended to others who are
not public officials or the relatives or members of the household of public offi-
cials on the same terms and conditions; or
"(B) For valuable consideration less than that required from others who
are not public officials.
"(b) 'Gift' does not mean:
"(A) Contributions as defined in ORS 260.005.
"(BJ Gifts from relatives or members of the household of the public official.
"(CJ An unsolicited token or award of appreciation in the form of a plaque,
trophy, desk item, wall memento or similar item, with a resale value reason-
ably expected to be less than $25.
"(D) Informational material, publications or subscriptions related to the
recipient's performance of official duties.
"(E) Admission provided to or the cost of food or beverage consumed by a
public official, or a member of the household or staff of the public official when
accompanying the public official, at a reception, meal or meeting held by an
organization before whom the public official appears to speak or to answer
questions as part of a scheduled program.

Cite as 347 Or
category, set forth in ORS 244.025(2), (3), and (4)(b) and (c),
restricts the offering of specified gifts or gifts of payment for
entertainment expenses. The third category, set forth in ORS
244.025(1) and (4)(a), and ORS 244.042(1) and (2), restricts
the solicitation of specified gifts or gifts of payment for enter-
tainment expenses. 6 We analyze each restriction separately
to determine its constitutionality under Article I, section 8.
I. 	ARTICLE I, SECTION 8
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 ofthis right."
In State v. Robertson, 293 Or 402, 649 P2d 569
(1982), this court set out a framework within which to ana-
lyze challenges to statutes under Article I, section 8, which
the court later summarized in State v. Plowman, 314 Or 157,
164, 838 P2d 558 (1992), cert den, 508 US 974 (1993):
"First, the court recognized a distinction between laws that
focus on the content of speech or writing and laws that focus
"(F) Reasonable expenses paid by any unit of the federal government, a
state or local government, a Native American tribe that is recognized by fed-
eral law or formally acknowledged by a state, a membership organization to
which a public body as defined in ORS 174.109 pays membership dues ora not-
for-profit corporation that is tax exempt under section 50l(c)(3) of the Internal
Revenue Code and that receives less than five percent of its funding from for-
profit organizations or entities, for attendance at a convention, fact-finding
mission or trip, or other meeting if the public official is scheduled to deliver a
speech, make a presentation, participate on a panel or represent state govern-
ment as defined in ORS 174.111, a local government as defined in ORS 174.116
or a special government body as defined in ORS 174.117."
6 For ease of discussion, we refer in this opinion to the person identified in ORS
244.025(1) and (4)(a) "a public official, candidate for public office or a relative or
member of the household of the public official or candidate" as a "public official."
Additionally, we refer to the persons or entities identified in ORS 244.025(1) and
(4)(a)
"any single source that could reasonably be known to have a legislative or
administrative interest in any governmental agency in which the public offi-
cials, or the candidate if elected would hold, any official position or over which
the public official exercises, or the candidate if elected would exercise, any
authority"
as a "lobbyist."

Vannatta v. 	Government Ethics Comm.
on proscribing the pursuit or accomplishment of forbidden
results. [Robertson,] 293 Or at 416-17. The court reasoned
that a law of the former type, a law 'written in terms
directed to the substance of any "opinion" or any "subject" of
communication,' violates Article I, section 8,
" 'unless the scope of the restraint is wholly confined
within some historical exception that was well estab-
lished 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.' Id.
at 412.
"Laws of the latter type, which focus on forbidden
results, can be divided further into two categories. The first
category focuses on forbidden effects, but expressly prohib-
its expression used to achieve those effects. The coercion
law at issue in Robertson was of that category.Id. at417-18.
Such laws are analyzed for overbreadth:
" 'When the proscribed means include speech or writing,
however, even a law written to focus on a forbidden
effect * 	* must be scrutinized to determine whether it
appears to reach privileged communication or whether
it can be interpreted to avoid such "overbreadth." 'Ibid.
"The second kind of law also focuses on forbidden
effects, but without referring to expression at all. Of that
category, this court wrote:
" 'If [a] statute [is] directed only against causing the for-
bidden effects, a person accused of causing such effects
by language or gestures would be left to assert (apart
from a vagueness claim) that the statute could not con-
stitutionally be applied to his particular words or other
expression, not that it was drawn and enacted contrary
to Article I, Section 8.' Id. at 417."
(Emphases, 	brackets, 	and 	ellipsis 	in 	original; 	footnote
omitted.)
Our first task, then, is to determine whether the var-
ious statutes under consideration here are "written in terms
directed to the substance of any 'opinion' or any 'subject' of
communication." Robertson, 293 Or at 412. As this court
observed in Robertson, if a law by its terms restrains the free
expression of opinion or restricts the right to speak freely on
any subject, it violates Article I, section 8.

Cite as 34 7 Or 	457
A. 	Gift receipt restrictions
ORS 244.025(1) provides that a public official "may
not** *receive" a gift or gifts exceeding $50 in value from a
lobbyist. ORS 244.025(4)(a) prohibits a public official from
receiving from a lobbyist payment of expenses for entertain-
ment in any amount. ORS 244.042(1) and (2) prohibit a pub-
lic official, a candidate for public office, or a member of the
official's or candidate's household from receiving from a lob-
byist honoraria with a value in excess of $50. For brevity's
sake, we refer to those statutory limitations as restrictions on
the receipt of gifts.
Plaintiffs assert that the statutory restrictions on
receiving gifts proscribe constitutionally protected expres-
sion. They argue that gifts, entertainment, and honoraria
expenditures 	constitute 	"lobbying" 	as 	defined 	by 	ORS
171. 725(8),7 in that "lobbying expenditures for meals, enter-
tainment, and honoraria convey a general message of inter-
est and appreciation in discussing legislative or administra-
tive issues." Plaintiffs contend that this court previously has
declared that lobbying is political speech protected under
Article I, section 8. See Fidanque v. Oregon Govt. Standards
and Practices, 328 Or 1, 8, 969 P2d 376 (1998) (discussing
principle). Plaintiffs argue that, in this context, giving gifts
constitutes lobbying because the gifts are "clearly designed to
attempt to influence legislative action or, at a minimum, to
attempt to 'obtain the good will' of a legislative official."
Plaintiffs also assert that, because the statutes are directed
at gifts made by persons with a "legislative or administrative
interest," and because the receipt of gifts is restricted only if
there is some political advocacy associated with the expendi-
ture, the statutes are directed at the content of this form of
expression. 	Therefore, 	plaintiffs 	argue, 	the 	gift 	receipt
restrictions fall under the first category of the Robertson
framework. We turn to the merits of that claim. 8
7 ORS 171.725(8) provides:
" 'Lobbying' means influencing, or attempting to influence, legislative
action through oral or written communication with legislative officials, solici-
tation of executive officials or other persons to influence or attempt to influence
legislative action or attempting to obtain the goodwill oflegislative officials."
8 Although the statutory list of gift recipients does not include plaintiffs, we
conclude that plaintiffs are affected by the statutory restrictions within the

458 	Vannatta v. 	Government Ethics Comm.
As noted above, the statutory restrictions regulate a
particular kind of conduct: the receipt of specified gifts.
"Receive" means "to take possession or delivery of (a gift)
* * *." Webster's Third New Int'l Dictionary 1894 (unabridged
ed 2002). The statutory restrictions are thus confined to the
act of a public official, a candidate, or a relative or member of
their household, in taking possession or delivery of a gift val-
ued in excess of statutory limits.
The statutory restrictions on the receipt of gifts con-
tain five elements. First, the required time frame: the gift or
gifts must be received within one calendar year. Second, the
receiving party must fall in one of the four groups: (1) a public
official; (2) a candidate for public office; (3) a relative of one of
the foregoing persons; 9 or (4) a household member of one of
the foregoing persons. Third, the party must receive a gift or
gifts, that is, take possession or delivery. Fourth, the gift or
gifts must have an aggregate value in excess of statutory lim-
its. Fifth, the gift or gifts (but not honoraria) must come from
a source of the kind identified by ORS 244.025(1):
"[A]ny single source that could reasonably be known to
have a legislative or administrative interest in any govern-
mental agency in which the public official holds, or the can-
didate if elected would hold, any official position or over
which the public official exercises, or the candidate if
elected would exercise, any authority."
Honoraria must be received in connection with the official
duties of either the public official or the public office for which
the receiver is a candidate.
In our view, the receipt of gifts restrictions are not
written in terms directed to the substance of any opinion or
any subject of communication, as Robertson explained that
meaning of ORS 28.020. If the restrictions on the receipt of gifts are enforceable,
they will have a practical impact on the manner in which plaintiffs conduct their
lobbying business. In that event, the restrictions on gift giving would compel plain-
tiffs either to restrict their present goodwill-building activities to gift giving that
meets the statutory monetary limits or to eliminate gift giving altogether. Because
the asserted effects of the receipt of gifts restrictions on plaintiffs' lobbying busi-
ness are neither hypothetical nor abstract, plaintiffs may seek a declaration con-
cerning the validity of those restrictions.
As already noted, the restrictions in ORS 244.042( 1) and (2) concerning hon-
oraria do not apply to "relatives" of public officials or candidates for office.

Cite as 347 Or 449 (2009) 	459
analytical principle. A public official who is subject to restric-
tions on the receipt of gifts can violate the restrictions with-
out saying a word, without engaging in expressive conduct,
and regardless of any opinion that he or she might hold. In
Plowman, this court considered and rejected a similar free-
speech challenge to a hate crime statute, stating:
"Persons can commit that crime without speaking a
word, and holding no opinion other than their perception of
the victim's characteristics."
314 Or at 165. Because the receipt of gifts restrictions do not
focus on the content of speech or writing, or on the expression
of any opinion, we have no reason to analyze whether the
restrictions fall within a well-established historical excep-
tion, id. at 163, or whether they restrain communications
that are incompatible with a speaker's official role or respon-
sibility. See In re Lasswell, 296 Or 121, 673 P2d 855 (1983)
(discussing incompatibility exception). Neither do the receipt
of gifts restrictions focus on proscribing the pursuit or accom-
plishment of forbidden results, nor do they prohibit expres-
sion used to accomplish those forbidden results.
Plaintiffs, however, relying on Fidanque, argue that
the receipt of gifts by public officials is so closely bound up
with lobbying communications-which they assert are a con-
stitutionally protected form of expression-that any restric-
tion on the receipt oflobbyists' gifts necessarily restrains the
practice of lobbying itself. More specifically, plaintiffs argue
that this court should recognize gift giving to legislators as a
form of constitutionally protected expression because (1) the
act of gift giving typically is surrounded by communications
about legislative business that constitute protected expres-
sion; (2) the motive behind gift giving to legislative officials is
the desire to influence governmental decisions, which reflects
a key reason why the constitution's framers chose to protect
expression in the constitution; and (3) any constitutional pro-
tection for political contributions should apply equally to gifts
to legislative officials because they are indistinguishable
from political contributions. We address each of plaintiffs'
arguments, 	beginning with 	a 	discussion 	of this 	court's
Fidanque decision.

460 	Vannatta v. Oregon Government Ethics Comm.
In Fidanque, two lobbyists challenged the validity of
a statute that required all lobbyists to pay a biennial regis-
tration fee to the government to engage in lobbying. They
contended, among other things, that the registration fee
interfered with their free expression rights protected by
Article I, section 8. This court recognized in Fidanque that
lobbying was a profession that was "essentially expressive
[in] nature," 328 Or at 8, and that lobbying constituted "polit-
ical speech." Id. 	at 7. The registration fee examined in
Fidanque thus was a barrier to political expression by lobby-
ists. Id. at 9. However, in striking down the registration fee,
this court did not express or imply that public officials or oth-
ers are entitled to take delivery of property or other largess,
free of regulation, simply because lobbyists proffer it in con-
nection with a political communication. Nor did Fidanque
express or imply that those who listen to and interact with
lobbyists-public officials and candidates for office, for exam-
ple-have a constitutional free expression right to receive
gifts of property, free of governmental regulation.
Although Fidanque properly recognized that lobby-
ing the legislature is "primarily expressive," id. at 7, that
case does not aid plaintiffs here, because it did not examine
specific types of lobbying activities to determine whether
they involved constitutionally protected expression and, to
the extent they involve expression, whether they are subject
to legislative regulation.
This 	court, 	however, 	has 	previously 	analyzed
(1) whether regulated conduct should be categorized as pro-
tected expression because other free speech activity sur-
rounds 	or 	accompanies 	the 	regulated 	conduct, 	and
(2) whether the actor's motive to express a viewpoint can
require the court to treat regulated conduct as protected
expression. In Huffman and Wright Logging Co. v. Wade, 317
Or 445, 857 P2d 101 (1993), the plaintiff, a logging company,
brought a tort action for trespass to chattels against six per-
sons 	who 	had 	participated in 	a 	demonstration 	against
logging on a forest road. During the demonstration, the
defendants, without permission, climbed on, and chained
themselves to, several pieces of the plaintiffs logging equip-
ment. While chained, the defendants made statements, sang
songs, and chanted slogans to express their views about the

Cite as 347 Or 449 (2009) 	461
environment. Following a jury trial, the trial court entered a
judgment for compensatory and punitive damages against
the defendants, and the Court of Appeals affirmed the judg-
ment. Huffman and Wright Logging Co. v. Wade, 109 Or App
37, 817 P2d 1334 (1991).
On review, the plaintiffs challenged the punitive
damages award on free expression grounds. After describing
the defendants' trespassory actions, this court stated:
"Although those acts undoubtedly had a communicative
effect, in the sense that most purposive human activity
communicates something about the frame of mind of the
actor, the acts were conduct, not speech. The question
becomes, then, whether defendants are nonetheless consti-
tutionally immune from potential responsibility for puni-
tive damages because of the message that their conduct
assertedly was trying to convey, the reason for their con-
duct, or the fact that speech accompanied their conduct."
317 Or at 449-50 (footnote omitted).
The court then turned to an analysis of other Oregon
cases examining both criminal and civil laws, including the
common law of torts, to determine their rationales for per-
mitting or prohibiting punishment of conduct associated with
expression. 10 The court noted that Plowman contained two
lessons, both of which are pertinent to this case:
"The first is that a person's reason for engaging in pun-
ishable conduct does not transform conduct into expression
under Article I, section 8. The second lesson is that speech
accompanying punishable conduct does not transform con-
duct into expression under Article I, section 8."
317 Or at 452 (emphasis in original; citations omitted).
In Huffman, the court also observed that it had
established the analytical line between successful and unsuc-
cessful constitutional challenges to various forms of regula-
tion of conduct by focusing on whether speech was an ele-
ment of the regulation or the cause of the claimed damage.
On the one hand, the court had nullified punitive damages
10 The court analyzed cases involving both criminal and civil laws together,
because "[t]he same analytic construct applies under Article I, section 8, to laws
that regulate but do not criminalize speech." Id. at 450 n 6.

462 	Vannatta v. 	Government Ethics Comm.
awards in cases in which speech was an element of the tort at
issue, see Wheeler v. Green, 286 Or 99, 593 P2d 777 (1979)
(defamation), or the defendant had committed the tort only
by speech, see Hall v. The May Dept. Stores, 292 Or 131, 637
P2d 126 (1981) (claim for intentional infliction of severe emo-
tional distress was based solely on store security officer's
statements during employee interrogation). On the other
hand, the court had concluded that, in tort cases involving
harm caused only in part by speech, "a defendant who
requests it is entitled to an instruction limiting the tortious
predicate for punitive damages to conduct not protected by
the free speech provision of Article I, section 8." 317 Or at
457. See, e.g., Lewis v. Oregon Beauty Supply Co., 302 Or 616,
733 P2d 430 (1987) (illustrating principle).
The Huffman court then turned to an application of
those principles to the tort of trespass to chattels involved in
that case. The court determined that the jury had been enti-
tled to find that the defendants' trespassory activities, such
as chaining themselves to the plaintiff's equipment,
"caused the disturbance of plaintiffs possession of its per-
sonal property, wholly apart from any motivating opinion,
underlying message, or accompanying speech. The trespas-
sory acts were, therefore, 'non-expressive conduct' within
the meaning of Lewis v. Oregon Beauty Supply Co., supra.
The message that defendants sought to convey by their con-
duct, the reason for their conduct, and the spoken and writ-
ten words accompanying their conduct did not transform
defendants' conduct into speech."
317 Or at 458. The judgment for punitive damages was
affirmed. Id. at 462.
Applying the analytical model used in Huffman, we
conclude that the terms of the gift receipt restrictions limit
nonexpressive conduct-not expression. As a general matter,
the act of delivering property to a public official is nonexpres-
sive conduct. Lobbyists may regularly convey political mes-
sages to public officials at or near the occasions of their gift
giving. Lobbyists also may intend their gift giving to com-
municate political support or goodwill toward the recipi-
ents-as this court has observed, "most purposive human
activity communicates something about the frame of mind of

Cite as 34 7 Or 449 (2009) 	463
the actor." Huffman and Wright Logging Co., 317 Or at 450.
But something more is required to elevate mere purposive
human activity into protected expression. To the extent that
the gift receipt restrictions interfere with gift giving by lob-
byists, they impede only nonexpressive conduct. Moreover,
the array of political expressions and communicative inten-
tions that may surround the giving of gifts by lobbyists does
not immunize the nonexpressive conduct of gift giving from
legislative regulation. 11
That brings us to plaintiffs' final argument, viz., that
gift giving by lobbyists to public officials is analogous to the
giving of political contributions to candidates and campaigns,
and that, consistent with Vannatta v. Keisling, 324 Or 514,
931 P2d 770 (1997) (Vannatta I), this court should declare
that the giving of gifts to public officials, like campaign con-
tributions, is constitutionally protected expression under
Article I, section 8.
In Vannatta I, the plaintiffs challenged various stat-
utory measures, 	adopted through the initiative process,
including a mandatory limit on contributions to state politi-
cal candidates and campaigns. The plaintiffs argued, among
other things, 	that the contributions limitations violated
Article I, section 8, because campaign contributions and
expenditures 	were 	constitutionally 	protected 	expression
under Article I, section 8.
In analyzing the plaintiffs' argument, the Vannatta!
court first accepted a concession by the parties that campaign
expenditures constitute protected expression. 324 Or at 520.
However, with regard to campaign contributions, the court
noted that the United States Supreme Court had held in
Buckley v. Valeo, 424 US 1, 96 S Ct 612, 46 L Ed 2d 659
(1976), that campaign contributions were a kind of expres-
sion that was less central to the core of First Amendment
expression and, thus, were subject to governmental restric-
tion, with the constitutionality of any particular restriction
being determined based on a balancing of the interests
11 We note that, in challenging the restrictions on receiving gifts, plaintiffs
might seek to demonstrate through specific proof that the state is seeking to apply
the restrictions to their particular words or expression, but they have not done so
here.

464 	Vannatta v. Oregon Government Ethics Comm.
involved. Vannatta I, 324 Or at 521. The court described two
of the 	reasons 	on 	which 	Buckley 	had 	relied 	for 	that
conclusion:
"(i) although contributions may result in speech, that
speech is by the candidate and not by the contributor; and
(ii) contributions express only general support for a candi-
date and do not communicate the reasons for that support."
Id. The court in Vannatta I then stated:
"Neither of those assumptions appears correct to us. In
our view, a contribution is protected as an expression by the
contributor, not because the contribution eventually may be
used by a candidate to express a particular message. The
money may never be used to promote a form of expression
by the candidate; instead, it may (for example) be used to
pay campaign staff or to meet other needs not tied to a par-
ticular message. However, the contribution, in and of itself,
is the contributor's expression of support for the candidate or
cause-an act of expression that is completed by the act of
giving and that depends in no way on the ultimate use to
which the contribution is put."
Id. at 522 (emphasis in original).
Plaintiffs, relying-not unreasonably, in our view-
on the preceding paragraph from Vannatta I, assert that any
donation to a political figure, including a public official, that
the donor intends as an expression of support is necessarily a
form of expression protected by Article I, section 8. In our
view, however, plaintiffs read the foregoing statements out of
context. The statements on which plaintiffs rely are best
understood if we clarify and explain them in light of the bal-
ance of the discussion in Vannatta I.
First, the court's assertion in Vannatta I that a polit-
ical contribution is protected expression even if it never pro-
motes any political message was made in connection with the
court's disagreement with the two assumptions, noted above,
on which the United States Supreme Court had relied for its
ruling in Buckley. Second, and most important in our view,
the court's rationale for the holding in Vannatta I that "cam-
paign contributions" are protected speech is based on the
assumption by the Vannatta I court that campaign contribu-
tions are so inextricably intertwined with the candidate or

Cite as 34 7 Or 449 (2009) 	465
the campaign's expression of its message that the two cannot
be separated. In other words, the Vannatta I court assumed
that restricting campaign contributions restricts a candi-
date's or a campaign's ability to communicate a political
message. It is that assumption that underlies the court's
determination that the statutory campaign contribution lim-
itations at issue in Vannatta I violated Article I, section 8.
Because that premise-restricting campaign contri-
butions restricts the ability to communicate political mes-
sages-is in question here, two other clarifying comments are
necessary. First, the court's statement in Vannatta I that
campaign 	contributions 	were 	constitutionally 	protected
forms of expression regardless of the "ultimate use to which
the contribution is put" was unnecessary to the court's hold-
ing. On further reflection, we conclude that that observation
was too broad and must be withdrawn. Second, because
Vannatta I assumed a symbiotic relationship between the
making of contributions and the candidate's or campaign's
ability to communicate a political message, this court did not
squarely decide in Vannatta I that, in every case, the delivery
to a public official, a candidate, or a campaign of money or
something of value also is constitutionally protected expres-
sion as a matter oflaw.
The foregoing discussion undermines plaintiffs' reli-
ance on Vannatta I. Giving a gift to a public official is not
inextricably linked with a public official's ability to carry out
official functions. Public officials can speak whether or not
lobbyists have given them gifts, which distinguishes this case
from Vannatta I and its focus on the connection between the
restriction on campaign contributions and the candidate's or
campaign's ability to communicate a political message. We
agree with the state that the restrictions on receiving gifts
withstand plaintiffs' constitutional challenge because the
lobbying activity on which plaintiffs based their challenge-
giving gifts to public officials-is nonexpressive conduct.
That determination is consistent with this court's analysis
and conclusion in Huffman and Wright Logging Co., and is
correct, at least in the absence of facts (which plaintiffs do not
offer here) demonstrating that the state's enforcement of the
restrictions 	has 	the 	effect of suppressing or restricting
expression in a specific case. We conclude, therefore, that the

466 	Vannatta v. Oregon Government Ethics Comm.
trial court correctly determined that plaintiffs' challenges to
the gift receipt restrictions were not well taken, and that the
court therefore correctly granted summary judgment in favor
of the state.
B. 	Restrictions on offering gifts
ORS 244.025(2) and (3) prohibit a lobbyist from
"offer[ing]" to a public official or candidate for public office (or
their relatives or household members) any gift or gifts with
an aggregate value in excess of $50. ORS 244.025(4)(b) and
(c) prohibit a lobbyist from "offer[ing]" to a public official or
candidate for public office any gift of payment of expenses for
entertainment. 12
We recognize that the same statutes that restrict
plaintiffs' right to communicate an offer of a gift that exceeds
the statutory limitations also prohibit the public official from
accepting the offered gift. As we have discussed earlier, the
statutory restrictions on a public official's ability to accept
specified gifts from lobbyists are constitutionally valid. In
that light, it can be argued that, if the statutory restrictions
on the receipt of gifts are constitutionally permissible, there
is no need to analyze the statutory restriction on offering a
gift: any claimed right to offer a gift to a public official
essentially rendered nugatory, if a public official cannot
accept it. However, the restrictions on "receiving" a gift and
"offering" a gift apply to different kinds of conduct and they
deserve a separate constitutional analysis. In our view, the
legal validity of restrictions on "receiving" gifts does not
resolve the question whether plaintiffs enjoy a constitutional
free expression right to communicate an "offer" of a gift.
Unlike the statutory restriction on the receipt of
gifts (including by implication a restriction on the giving of
gifts), the restrictions on "offering" gifts, when examined
under the Robertson methodology, are a type of law that
focuses on the content of speaking or writing: offering a gift.
The restrictions on offering a gift are not aimed at the pursuit
u The record below demonstrates that plaintiffs wish to "offer" gifts to public
officials, candidates for public office, and their relatives and household memhers
that would exceed the restrictions described above. As a consequence, plaintiffs are
"affected" by those restrictions and they may seek declaratory relief from their
enforcement under ORS 28.020.

Cite as 347 Or 449 (2009) 	467
or accomplishment of some forbidden results, such as, per-
haps, the regulation of conflicts of interest involving govern-
ment officials. Rather, they focus on every utterance of an
offer, of the kind described in the statute, whether or not such
an offer produces any invidious effect. See City of Portland v.
Tidyman, 306 Or 174, 183-84, 759 P2d 242 (1988) (city ordi-
nance prohibiting "adult bookstores" was addressed to one
disfavored type of communication by words and pictures;
ordinance was not written in terms of asserted negative
effects of adult bookstores). The trial court correctly deter-
mined, insofar as the restrictions on offering gifts are con-
cerned, that those restrictions expressly regulate speech by
lobbyists.
"[A]rticle I, section 8 prohibits lawmakers from enacting
restrictions that focus on the content of speech or writing,
either because that content itself is deemed socially unde-
sirable or offensive, or because it is thought to have adverse
consequences. * * * It means that laws must focus on pro-
scribing the pursuit or accomplishment of forbidden results
rather than on the suppression of speech or writing either
as an end in itself or as a means to some other legislative
end."
Robertson, 293 Or at 416-17. Applying that standard here, we
also conclude that the restrictions on "offering" gifts do not
focus on the pursuit or accomplishment of forbidden results.
The state next contends that the restrictions on
offering gifts qualify as permissible reasonable limitations on
the time, place, and manner of expression that leave open
ample avenues for engaging in the proscribed expression. We
disagree.
In Tidyman, this court stated:
"A regulation is not always unconstitutional because it
restricts one's choice of a place or time for self-expression or
religious practice, when that is not the object of the
regulation."
306 Or at 182. Tidyman explained several ways in which a
city permissibly could limit "all location, time, manner, inten-
sity, or invasive effect of some communicative activity * * *
[or impose] limitations of number, frequency, density, or
duration" of communication. Id. at 183. The court listed, as

468 	Vannatta v. Oregon Government Ethics Comm.
examples, the granting of evenhanded exceptions to other-
wise valid restrictions on the placement of signs, the flow of
traffic during a demonstration, and the use of sound trucks
during a campaign. But, as noted, those examples did not
assist the city there, because its ordinance was drafted to pro-
hibit one kind of disfavored speech, i.e., adult bookstores.
Outdoor Media Dimensions v. Dept. of Transportation,
340 Or 275, 132 P3d 5 (2006), elaborated on the holding in
Tidyman, explaining that, although content-neutral time,
place, and manner restrictions on speech can be sustained,
that category of regulations concerns laws that
"focus on the accomplishment of 'forbidden results,' but do
so by restricting expression, [and therefore] such restrictions
appear to come within the second of the three Robertson
categories."
Id. at 288. As noted, the "second Robertson category" refers to
laws that prohibit expression used to achieve prohibited
effects. The restrictions on the offering of gifts, as noted, do
not fall within the second Robertson category, because they
expressly prohibit disfavored speech without referring at all
to prohibited effects that the legislature may proscribe. The
restrictions on offering gifts also do not qualify as limitations
on the time, place, and manner of speech. The restrictions
apply to every offer of a gift that meets the statutory criteria,
regardless of when, where, and in what manner it is made.
For the foregoing reasons, we conclude that the stat-
utory restrictions on "offer[ing]" a gift to a public official, can-
didate for public office, or relative or household member
impermissibly restrict the right of free expression protected
by Article I, section 8. 13 With respect to that statutory restric-
tion, the trial court erred in granting summary judgment in
favor of the state. Instead, the trial court should have entered
a declaratory judgment in plaintiffs' favor, with respect to the
restriction on "offer[ing]" gifts.
1'3 As a result of our constitutional analysis regarding the statutory restrictions
on receiving a gift, we perceive no need or utility in determining whether the
restriction on offering a gift falls within a well-established historical exception.

Cite as 34 7 Or 449 (2009) 	469
C. 	Solicitation restrictions
ORS 244.025(1) is a restriction on what a public offi-
cial may do. It prohibits a public official from "solicit[ing]" a
gift or gifts in excess of $50 in value from a lobbyist. ORS
244.025(4)(a) further prohibits a public official from soliciting
from a lobbyist any gift in any amount for payment of
expenses for entertainment. ORS 244.042(1) and (2) prohibit
a public official, including a candidate for public office or a
member of their household, from soliciting honoraria with a
value in excess of $50. 14
The state concedes that "soliciting" a gift or honorar-
ium from a lobbyist is protected expression. It nonetheless
argues, 	however, 	that, 	for 	other reasons, 	the 	statutory
restraint on speech represented by the solicitation restric-
tions is a permissible one. In our view, however, we need not
consider the state's concession unless we first determine
whether plaintiffs are statutorily qualified to seek declara-
tory relief regarding the solicitation restrictions described
above. ORS 28.020 provides that a person "whose rights,
status or other legal relations are affected by a constitution
[or] statute*** may have determined any question of con-
struction or validity arising under any such * * * constitution
[or] statute*** and obtain a declaration of rights, status or
other legal relations thereunder." (Emphasis added.)
In Gruber u. Lincoln Hospital District, 285 Or 3, 7,
588 P2d 1281 (1979), this court stated that plaintiffs seeking
declaratory relief under ORS chapter 28 and ORS 20.020
must show how their
" 'rights, status, or other legal relations are affected' by an
instrument or enactment, the construction or validity of
14 ORS 244.020(6) provides:
" 'Honorarium' means a payment or something of economic value given to
a public official in exchange for services upon which custom or propriety pre-
vents the setting of a price. Services include, but are not limited to, speeches or
other services rendered in connection with an event."
The statutory restrictions on soliciting or receiving gifts in ORS 244.025 (1) and
(4)(a) apply to a "relative" ofa public official or candidate for public office. However,
the statutory restrictions on receiving honoraria in ORS 244.042(1) and (2) do not
mention "relatives" and, thus, do not apply to relatives of public officials or candi-
dates for public office, unless the relative also is a public official, candidate for pub-
lic office, or member of a public official's household.

470 	Vannatta v. Oregon Government Ethics Comm.
which [the plaintiffi seeks to have determined. Standing
under this section has been denied when the showing of the
required 	effect 	has 	been 	too 	speculative 	or 	entirely
missing."
(Citations omitted.)
Determining whether plaintiffs have standing to
seek declaratory relief in this proceeding is a question ofleg-
islative intent:
"When it is ruling on a standing issue, a reviewing court
must focus on the wording of the particular statute at issue,
because standing is not a matter of common law but is,
instead, conferred by the legislature."
Local No. 290 v. Dept. of Environ. Quality, 323 Or 559, 566,
919 P2d 1168 (1996) (citations omitted).
Accordingly, to determine whether plaintiffs satisfy
the statutory requirements in ORS 28.020, we must examine
the factual record to determine how the challenged solicita-
tion restrictions affect plaintiffs' legal interests. Here, plain-
tiffs assert that they desire to bestow gifts on public officials,
candidates for public office, and relatives and members of
their households in connection with lobbying activities. How-
ever, plaintiffs have made no showing on the record in this
case that the solicitation restrictions affect them at all. Plain-
tiffs are not among the persons to whom the solicitation
restrictions apply, viz., a public official, a candidate for public
office, or a relative or member of the household of a public
official or candidate. 15 Moreover, 	nothing that plaintiffs
allege permits the implication that the solicitation restric-
tions have had or will have a practical effect on plaintiffs' lob-
bying and business activities. Plaintiffs do not explain how
the statutory restrictions on the ability of public officials to
15 We have recognized that the legislature has constitutional authority to con-
fer standing on "any party" in an agency proceeding to seek judicial review of the
agency's final order without a further showing of interest. Marbet v. Portland Gen.
Elect., 277 Or 447, 453, 561P2d154 (1977). No such conferral has occurred here.
We also have recognized that the legislature may deputize its citizens to challenge
governmental action in the public interest, even though the particular plaintiff
may have no personal stake in the proceeding. Kellas v. Dept. of Corrections, 341 Or
4 71, 484, 145 P3d 139 (2006). In contrast to the statute reviewed inKellas, no stat-
ute deputizes the entire public, or any smaller group that might include plaintiffs,
to challenge the solicitation restrictions at issue here.

Cite as 347 	471
solicit from lobbyists gifts, entertainment expenses, or hono-
raria creates or imposes any limitation on plaintiffs' ability to
communicate freely with public officials, either in plaintiffs'
individual capacities or as representatives of their clients.
Based on the foregoing, we conclude that plaintiffs
do not qualify under ORS 20.080 as parties "affected" by the
solicitation restrictions. They therefore are not entitled to
seek declaratory relief from those restrictions. Plaintiffs are
not entitled to an adjudication of the constitutionality of the
solicitation restrictions in ORS 244.025(1) and (4)(a) and
ORS 244.042(1) and (2). The trial court should have dis-
missed plaintiffs' complaint with respect to that claim.
D. 	First Amendment: Classification of speakers
Plaintiffs also challenge the gift and entertainment
restrictions under the First Amendment to the United States
Constitution. Their theory is that the gift and entertainment
restrictions apply unevenly, and therefore unconstitution-
ally, because they suppress the federal speech rights of
lobbyists (i.e., persons with a legislative or administrative
interest) but not others.
We have already concluded that the receipt of gift
and entertainment restrictions do not abridge the right of
free expression under Oregon's Constitution because, as a
general matter, they regulate nonexpressive conduct, not
expression. Plaintiffs fail to demonstrate that the United
States Supreme Court would construe and apply the First
Amendment to those restrictions, and yet reach a different
conclusion under federal law. We are not aware of any perti-
nent federal authority that would compel a different answer.
Because plaintiffs have not established that the gift and
entertainment restrictions deny a First Amendment right,
their contentions regarding the alleged discriminatory appli-
cation of those restrictions to different classifications of per-
sons are unavailing.
II. 	ARTICLE I, SECTION 26
Finally, plaintiffs assert that the statutory gift,
entertainment, and honoraria restrictions violate Article I,
section 26, of the Oregon Constitution, which provides:

472 	Vannatta v.
"No law shall be passed restraining any of the inhabi-
tants of the State from assembling together in a peaceable
manner to consult for 	their common good; 	nor from
instructing their Representatives; nor from applying to the
Legislature for redress of greviances (sic)."
Plaintiffs assert that, "by prohibiting* * * expendi-
tures to inform or persuade legislators regarding legislative
matters, the lobbying restrictions impermissibly restrain
Oregon inhabitants from 'instructing their Representatives'
or 'applying to the Legislature for redress of grievances.' "
However, plaintiffs have failed to support their assertions
with any case law, or with any analysis of the origins, the his-
toric concerns, or the drafters' political theories that underlie
Article I, section 26. See State v. Montez, 309 Or 564, 604, 789
P2d 1352 (1990) (without extensive briefing on the origins,
historic concerns, and political theories underlying federal
Guarantee Clause, court would not consider full range of argu-
ments that could be made regarding impact of Guarantee
Clause on constitutionality of death penalty statute). In the
absence of that kind of extensive and focused analysis in this
case, we fail to see how the rights to assemble, to instruct rep-
resentatives, and to apply to the legislature for redress of
grievances, as protected by Article I, section 26, necessarily
must include a constitutional right for public officials to
receive gifts, entertainment, and honoraria, or for lobbyists
to give restricted gifts to public officials. The fact that gifts
may be ''helpful" in creating goodwill with public officials
does not mean that Article I, section 26, protects the delivery
of gifts to them.
III. 	CONCLUSION
We summarize our conclusions as follows. The trial
court correctly granted summary judgment to the state on
plaintiffs' challenges to the receipt of gifts and payment of
expenses for entertainment restrictions under Article I, sec-
tions 8 and 26, of the Oregon Constitution and the First
Amendment to the United States Constitution. However, the
trial court erred in granting summary judgment to the state
in respect to plaintiffs' challenges to the restrictions on
"offer[ing]" gifts and entertainment under Article I, section 8.
The trial court correctly granted summary judgment to the

Cite as 347 Or 449 	473
state on plaintiffs' challenges to the solicitation of gifts
restrictions, because plaintiffs do not qualify as persons
affected by those restrictions under ORS 28.020. Plaintiffs
are entitled to a declaratory judgment that the restrictions on
offering gifts and entertainment violate plaintiffs' free speech
right under Article I, section 8.
The order of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit court
for further proceedings.