No. 578 August 21, 2024 437

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JAMES WILLIAM COOK, 

aka James William Cook, Jr.,

Defendant-Appellant.

Grant County Circuit Court

21CR26992; A177498

Robert S. Raschio, Judge.

Argued August 10, 2023.

Peter G. Klym, Deputy Public Defender, argued the 

cause for appellant. Also on the brief was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Carson L. Whitehead, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,

Judge.

SHORR, P. J.

Reversed.
438 State v. Cook

SHORR, P. J.

Defendant appeals from a judgment of conviction 

for one count of telephonic harassment, ORS 166.090(1)(c).1

In his sole assignment of error, he asserts that the trial 

court erred in denying his motion for judgment of acquittal (MJOA). He contends that the statute on which his conviction is based is facially overbroad or, if not facially overbroad, that it is unconstitutional as applied to the facts of 

this case. We conclude that the statute as applied to defendant violated his rights under Article I, section 8, of the 

Oregon Constitution, and, accordingly, we reverse.

We review the question whether ORS 166.090(1)(c) 

violates Article I, section 8, of the Oregon Constitution2 as a 

matter of law. State v. Rangel, 328 Or 294, 298, 977 P2d 379 

(1999).

The underlying facts are undisputed. Defendant 

was convicted after a jury trial of telephonic harassment 

based on text messages he sent to his ex-wife, K. Defendant 

and K, who were divorced in April 2019, have two children. 

The children lived with K, and defendant had parenting 

time every other weekend. Defendant and K generally communicated about parenting issues and parenting time via 

text message.

On October 27, 2020, defendant and K exchanged 

text messages. K’s last text message that day stated, “Leave 

me alone jimmy” and defendant replied, “Later, tweaky 

bird.” The following day, defendant began a text message 

exchange with K—the messages that are the basis of his 

conviction—by sending two messages: “Hey how’s everyone 

1 ORS 166.090(1) states, in part:

“A telephone caller commits the crime of telephonic harassment if the 

caller intentionally harasses or annoys another person:

“*****

“(c) By sending to, or leaving at, the other person’s telephone a text message, voice mail or any other message, knowing that the caller has been forbidden from so doing by a person exercising lawful authority over the receiving telephone.”

2 Article I, section 8, of the Oregon Constitution states, “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.”
Cite as 334 Or App 437 (2024) 439

in hell?” and “I mean, how is everyone living with you. Are 

[the children] doing good?” That exchange continued:

“[K:] Kids are fine.

“[Defendant:] What r they doing?

“[K:] [C] in school sis playing

“[Defendant:] Do you even know or are you still telling 

to ‘go away!’ and ‘leave me alone!’

“[K:] Leave me alone

“[Defendant:] Why not work on number and letters 

since you guys have this quality time?

“[K:] Leave me alone jimmy

“[Defendant:] Try giving a fuck about their mental 

health and growth!? Because you never did? They aren’t 

just pawns in your little game. Read, write, draw, ect.. with 

them. Try loving them

“[Defendant:] I can’t expect you to help them grow as 

people because you still don’t know how.

“[Defendant:] [meme photo with text ‘YOU SAY YOU 

QUIT THE METH......YOUR TORE UP FACE AND 

GIANT PUPILS DETERMINED THAT WAS A LIE’]

“[K:] Leave me the hell alone jimmy

“[Defendant:] I want to make sure my children are 

taken care of. That’s their minds and bodies. I don’t think 

you can. Bodies yeah, you can. Mentally they need to be 

away from you.

“[K:] For the love of god just fucking stop leave me 

alone

“[Defendant:] Do you feel attacked when the truth is 

thrown in your face or something? I know you aren’t familiar with tell the truth so its probably hard for you to hear.”

K contacted the John Day Police Department and 

spoke with Officer Durr about filing a complaint or stopping 

defendant from texting her. Durr collected screenshots of 

the text messages from K’s cell phone.

Defendant was ultimately charged by information 

with telephonic harassment under ORS 166.090, in part:
440 State v. Cook

“The defendant, on or about October 28, 2020, in Grant 

County, Oregon, did unlawfully and intentionally harass 

or annoy [K] by sending to or leaving at the telephone [of] 

such other person a text message or voice mail or message, 

defendant knowing that defendant had been forbidden 

from doing so by a person exercising lawful authority over 

the receiving telephone.”

At defendant’s jury trial, K agreed during her testimony that she would have been able to text with defendant 

if it involved the children and that she would not have told 

defendant to leave her alone if he was talking about “parenting stuff.” After the state rested, defendant raised an 

MJOA, asserting, in part, that his text messages to K were 

protected speech under Article I, section 8, of the Oregon 

Constitution. The trial court denied the MJOA. Relying on 

State v. Koenig, 238 Or App 297, 242 P3d 649 (2010), rev den, 

349 Or 601 (2011), the court stated that it believed “that the 

jury can consider the content of a message for the purposes 

of determining whether or not it is harassing or annoying 

to the other party” and that “it isn’t an Article I, Section 8, 

problem if the jury considers expressive conduct in determining whether or not the person was trying to intentionally harass or annoy the other person.”3

The trial court also concluded that under the statute in question, “a person could commit the crime of telephonic harassment by sending a text after being told not to 

send a text” and then “the receiving party could later text 

that individual, reinstituting communication” and would 

again need to tell the sender to stop in order to eliminate 

further communication via text messages. The court determined, viewing the facts in the light most favorable to the 

state, that “there was a context set up for texting that it 

was to be related to the children and the children’s care” 

and when “[d]efendant veered course and started sending personally-offensive and harassing messages to [K],

[K] responded by telling him to stop.” Defendant then 

3 In Koenig, we stated, “[T]he expressive conduct identified by defendant (his 

speech during the telephone calls) is not relevant to proving the forbidden result 

(harassment), *** rather, that expressive conduct, along with other evidence, is 

relevant to show defendant’s intent. *** Criminal laws are not unconstitutional 

under Article I, section 8, simply because that culpable mental state might be 

proved by expressive conduct.” 238 Or App at 303.
Cite as 334 Or App 437 (2024) 441

“persisted *** to send additional messages in direct contravention of [K] saying, ‘Don’t contact me via text in the way 

that you are.’” The trial court acknowledged that the statute 

“is a little problematic” and “the facts in this case are problematic because [defendant] did establish a texting relationship for purposes of communicating with each other about 

the children, and he was allowed to communicate with her 

on that level.” But, according to the trial court, once the content of the messages shifted to what the jury could construe 

as being harassing and annoying, K could tell him to stop; 

however, “he persisted.” The jury ultimately found defendant guilty, and defendant appealed.

The analytical framework for evaluating a law’s 

constitutionality under Article I, section 8, is set forth in 

State v. Robertson, 293 Or 402, 649 P2d 569 (1982).

“Under Robertson, a law is unconstitutional if it is ‘written in terms directed to the substance of any “opinion” or 

any “subject” of communication’ unless the scope of the 

restraint is ‘wholly confined within some historical exception[.]’ Id. at 412. If a law is not directed at the substance of 

any opinion, a court must nonetheless determine 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.’ State v. Babson, 355 Or 383, 391, 326 P3d 559 

(2014) (quoting Robertson, 293 Or at 417-18). ‘If the law 

focuses on the forbidden effects, and the proscribed means 

of causing those effects include expression, then the law is 

analyzed under the second Robertson category.’ Id. Under 

that category, we determine ‘whether the law is overbroad, 

and, if so, whether it is capable of being narrowed.’ Id. If the 

law focuses only on forbidden effects, the law falls into the 

third Robertson category, and an individual can bring an 

as-applied challenge to the law.”

State v. Smith, 319 Or App 388, 390, 510 P3d 217, rev den, 

370 Or 404 (2022) (brackets in Smith).

On appeal, defendant contends that the trial court 

erred when it denied his MJOA because the telephonic harassment statute, ORS 166.090(1)(c), violates Article I, section 8, 

on its face or, in the alternative, as applied to his conduct. 

That is, he contends that the statute is unconstitutional 
442 State v. Cook

under the second or third Robertson categories. The state 

argues that ORS 166.090(1)(c) is constitutional under both 

of those categories.

We begin with defendant’s argument that ORS 

166.090(1)(c) falls under the second Robertson category and 

that it is unconstitutionally overbroad because it prohibits 

privileged speech. ORS 166.090(1) states:

“A telephone caller commits the crime of telephonic 

harassment if the caller intentionally harasses or annoys 

another person:

“(a) By causing the telephone of the other person to 

ring, such caller having no communicative purpose;

“(b) By causing such other person’s telephone to ring, 

knowing that the caller has been forbidden from so doing 

by a person exercising lawful authority over the receiving 

telephone; or

“(c) By sending to, or leaving at, the other person’s 

telephone a text message, voice mail or any other message, 

knowing that the caller has been forbidden from so doing 

by a person exercising lawful authority over the receiving 

telephone.”

Defendant argues that ORS 166.090(1)(c) is written to focus 

on a harm, that harm being harassment or annoyance, 

but the means of achieving that harm necessarily involve 

expression—by sending a text message, voicemail, or other 

message. He argues that it is not expression neutral because 

it involves leaving a message intended to harass or annoy. 

The state responds that the text of paragraph (1)(c) targets 

conduct—the act of “sending” or “leaving” a text message or 

voicemail on the victim’s phone with the intent to harass or 

annoy—the statute does not target expression itself and it 

does not matter what the text message says.

We agree with the state that ORS 166.090(1)(c) 

is not unconstitutional on its face. “[A]s a general rule, to 

warrant review for facial overbreadth, a law must expressly 

restrain speech.” State ex rel Rosenblum v. Living Essentials, 

LLC, 371 Or 23, 55, 529 P3d 939 (2023). Nothing in the 

statute requires that the content of the text be harassing 

or annoying. Rather, the statute requires that “the caller 
Cite as 334 Or App 437 (2024) 443

intentionally harasses or annoys another person” by “sending to, or leaving at, the other person’s telephone a text message” when that person knows that they have been forbidden 

from doing so. The intent of the person who sends the text 

message must be to harasses or annoy, but the actual text 

message itself could be anything. It is the act of sending the 

text itself that is the proscribed means of causing the harm.

We turn to defendant’s argument that ORS 

166.090(1)(c) is unconstitutional as applied to him. “To determine whether a ‘category three’ law violates Article I,

section 8, as applied to particular conduct, ‘the court must 

examine how the law was applied to determine whether 

the application was directed at the content or the expressive nature of an individual’s activities, advanced legitimate 

state interests, and provided ample alternative opportunities to communicate the intended message.’” State v. Pucket, 

291 Or App 771, 774-75, 422 P3d 341, rev den, 363 Or 727 

(2018) (quoting Babson, 355 Or at 408). That is, a facially 

valid statute may violate Article I, section 8, if it is applied 

“so that it did, in fact, reach privileged communication.” City 

of Eugene v. Miller, 318 Or 480, 490, 871 P2d 454 (1994).

Defendant argues that he was convicted for the content of his messages, which reached privileged communication. Defendant argues that, here, K sought only to forbid 

him from sending messages with particular communicative 

content, and, further, that the trial court explicitly relied 

on the communicative content of defendant’s speech when 

it denied his MJOA. The state does not dispute that defendant’s text messages are communications that are subject to 

protection under Article I, section 8. However, the state contends that defendant was convicted for the act of sending the 

text messages, not because of the content of the messages.

Defendant asserts that the scenario here is analogous to that in Miller, 318 Or 480, in that his prosecution 

reached privileged communication. In Miller, the defendant 

was convicted of violating a sidewalk vending ordinance and 

the Supreme Court agreed with the defendant that, as applied 

to him, the ordinance violated Article I, section 8, because it 

“unreasonably impinge[d] on the dissemination of expressive 

material that is itself protected under Article I, section 8.” Id.
444 State v. Cook

at 482, 486. The defendant was cited for selling a joke book 

to a pedestrian on a sidewalk in violation of an ordinance 

that permitted licensed vendors to sell only food, beverages, 

flowers, or balloons that were designated on the license. Id. at 

483. The court applied the third Robertson category and concluded that as applied to the defendant, the ordinance unconstitutionally denied the defendant “the same opportunity for 

the public sale of his expressive material goods that [was] 

given to vendors of other products.” Id. 491-92.

In contrast, in Pucket, another case in which a defendant asserted an “as applied” challenge, we concluded that 

a disorderly conduct statute did not violate Article I, section 8, as applied to the defendant. In that case, the defendant was standing on the sidewalk in front of a Fred Meyer 

store using an electrified bullhorn to preach to passersby. 

291 Or App at 772. He was convicted of second-degree disorderly conduct for recklessly creating a risk of public inconvenience, annoyance, and alarm by making unreasonable 

noise. Id. The trial court denied the defendant’s MJOA after 

concluding that the defendant had been arrested for making unreasonable noise rather than for the content of his 

speech. Id. at 774. The defendant had been warned by police 

officers that “he was free to speak his mind but could not use 

the bullhorn to make an unreasonable noise” and employees 

and customers from nearby businesses complained about 

the noise; there was nothing in the record that suggested 

that the complaints were based on the content of the defendant’s message. Id. at 775-76. In addition, officers testified 

that they arrested the defendant because of the volume 

and duration of his noise. Id. at 776. Given the record, we 

agreed with the trial court that the “defendant’s prosecution 

was not ‘directed at the content or the expressive nature of 

[his] activities.’” Id. at 776 (quoting Babson, 355 Or at 408 

(emphasis and brackets in Pucket)); see also State v. Rich, 

218 Or App 642, 651, 180 P3d 744 (2008) (disorderly conduct statute was applied against the defendant because of 

the noncommunicative elements of his speech and was not 

unconstitutional as applied to him).

Defendant argues that the evidence shows that K 

sought to prohibit only certain of defendant’s text messages 
Cite as 334 Or App 437 (2024) 445

that she perceived as demeaning or insulting—in other 

words, she sought to forbid messages with particular communicative content. The record supports that assertion. In 

its opening statement, in a preview of its evidence, the state 

told the jury that in the text messages, K

“[is] asking [defendant] to please not make derogatory comments to her this way, and just, let’s talk about the kids.

“So you’ll see messages between the two of them that 

are about children, * * * and then you’ll see messages that 

come from him to her that are derogatory. And you’ll see 

messages from her to him telling him to stop, which is what 

the statute indicates.”

The state called Officer Durr to testify. He explained that 

he received a call from K, who wanted to talk to him about 

filing a complaint or stopping defendant from texting her. 

He collected screenshots of text messages between K and 

defendant and agreed, when questioned, that the messages 

contained derogatory statements from defendant to K but 

did not contain derogatory statements from K to defendant. 

Durr agreed that it is a crime when a person sends text messages after they have been advised not to.

As the prosecutor’s opening statement asserted 

it would, K’s testimony indicated that K wanted to prevent only certain kinds of text messages from defendant. 

K testified that it was “[n]ot a problem” if defendant were 

to text her about the children needing a coat or defendant 

picking up the children. She also testified that, “We have 

to get along. If you can’t not [sic] get along, don’t talk.” She 

explained that she responded to defendant’s texts with all of 

the “leave me alones” because she did not want to engage in 

a fight with defendant—she did not “want the petty game.” 

K agreed that she would not have told defendant to leave her 

alone if he was “talking about parenting stuff.” In re-direct 

testimony, K was asked by the state if she felt harassed by 

certain text messages, and she responded, “A little. It’s more 

he’s just mocking me though.” When asked if she felt like it 

was annoying, she replied in the affirmative.

The state argues that the evidence was sufficient to 

convict defendant for the act of sending the text messages. 

It points to the fact that that the trial court instructed the 
446 State v. Cook

jury that the content of defendant’s speech was protected 

by the constitution and that it could only consider the content of the messages to consider what defendant’s intent 

was when he sent them. The state also notes that its closing argument reflected the same correct understanding of 

the law expressed in the jury instructions. The state also 

argues that Article I, section 8, does not prevent private 

citizens, like K, from making content-based distinctions in 

what messages can be sent to their phone.

There are several problems with the state’s arguments. First, although K is a private citizen, this case 

involved state actors in the prosecution of defendant. This is 

not a situation where one person privately told another person not to send certain kinds of text messages. K involved 

the police, as she was entitled to do, and the state prosecuted 

defendant. In addition, although there were aspects of the 

way this case was presented to the jury that attempted to 

apply the statute without reaching the content of protected 

communication—that once a person is told not to text, they 

cannot text—the only evidence was that certain texts to 

K were acceptable, and others were not. Despite the jury 

instructions indicating that the content of the texts was relevant only to defendant’s intent, the only evidence that the 

texts had the required result of harassing or annoying K 

was based on their content. On this record, we conclude that 

ORS 166.090(1)(c) as applied, reached privileged communication, and impermissibly burdened defendant’s right of free 

speech.4

Reversed.

4 In reaching this result, we do not intend to minimize the nature of the 

texts defendant sent. We also note that our ruling is specific to this statute and 

the record before us. We express no opinion on the ability of courts to put parameters around communication between parties in matters involving, for instance, 

domestic relations or protective order situations.