We next determined that materials depicting sexual conduct or sexual excitement are expression encompassed by Article I, section 8. That determination is consistent with Stoneman and other relevant Supreme Court decisions. See State v. Henry, 302 Or. 510, 515, 732 P.2d 9 (1987). We next addressed whether the statute was directed at harmful effects resulting from the exposure of children to sexually explicit materials or, alternatively, whether it was directed to the content of an opinion or communication.

Given that the focus of the historical exception analysis is what the framers of the Oregon Constitution would have understood, that seems to make sense. See State v. Henry, 302 Or. 510, 521, 732 P.2d 9 (1987) (objective of Article I, section 8, analysis is to determine whether the guarantees of freedom of expression "were not intended to replace" earlier restrictions on expression); Robertson, 293 Or. at 412 (characterizing the objective as determining whether Article I, section 8, was "intended" to reach previously well-established forms of state regulation). There is language in Robertson that also refers to the state of the historical record as of the adoption of "the first American guarantees of freedom of expression" in the late eighteenth century.

Defendant was charged with paying to obtain a videotape and magazine that depicted sexually explicit conduct by a child under 18 years of age. ORS 163.680. The trial court held that ORS 163.680 violated Article I, section 8, of the Oregon Constitution and sustained defendant's demurrer to the indictment on the basis of State v. Henry, 302 Or. 510, 732 P.2d 9 (1987). The state appeals, ORS 138.060(1), and argues that ORS 163.680 does not violate Article I, section 8, because: (1) the statute focuses on the harmful effects of speech, i.e., the abuse of children in the production of child pornography, and not the content of the expression itself; (2) if, however, the statute is content-based, it embodies a historical exception to Article I, section 8; and (3) laws enacted to protect children should be excepted from the sweep of Article I, section 8, because of their exceptional importance to the state.

The dissent contends that "lewd" is unconstitutionally vague because the term "obscene" has been found to suffer from that constitutional infirmity. 120 Or App at 337; see State v. Ray, 302 Or. 595, 733 P.2d 28 (1987); State v. Henry, 302 Or. 510, 732 P.2d 9 (1987). The foundation of its argument lies in its assertion that in State v. Henry, supra, the Supreme Court "observed that the term `lewd' has functioned as a synonym for the vague term `obscene[.]

"Article I, section 8 [of the Oregon Constitution], separately precludes laws `restraining the free expression of opinion' as well as laws `restricting the right to speak, write, or print freely' * * *." State v. Henry, 302 Or. 510, 515, 732 P.2d 9 (1987) (discussed in Note, State v. Henry: A Rational Approach to the Extension of Individual's Rights, 67 Or L Rev 507 (1988)). "The text of Article I, section 8, is broader [than the First Amendment of the Federal Constitution] and covers any expression of opinion * * *."

Moser v. Frohnmayer, 315 Or. 372, 375, 845 P.2d 1284 (1993). The depictions of sexually explicit materials described in ORS 167.065(1)(a) are expression encompassed by Article I, section 8. State v. Henry, 302 Or. 510, 515, 732 P.2d 9 (1987) (Article I, section 8, "covers any expression of opinion, including verbal and nonverbal expressions contained in films, pictures, paintings, sculpture and the like."). The next step is to determine if the law is directed at the content of an opinion or communication, or if it is directed at forbidden effects.

II. METHODOLOGY On review, defendant argues that the Court of Appeals majority's analysis is contrary to this court's holding in State v. Henry, 302 Or 510, 520-23, 732 P.2d 9 (1987), that such early restrictions on sexually explicit or obscene expressions between adults as may have existed were not "well established" at the time that early freedoms of expression were adopted or at the time of the adoption of Article I, section 8. Defendant also argues that the Court of Appeals relied almost entirely on cases and statutes pertaining to "lewd" conduct before a nonconsenting public, but pointed to no real [339 Or. 288] evidence of the historical treatment of private, sexually explicit performances staged for consenting adults.

680 (1) (1987) necessarily involves the purchase of material that is directly and inextricably connected with sexual abuse of children. Ultimately, it is that fact that frames the central legal question posed by this case: Did the focus of ORS 163.680 (1987), i.e., the focus on sexual abuse of children, set the statute apart from the type of anti-obscenity laws that this court held to be invalid restrictions on speech in City of Portland v. Tidyman, 306 Or. 174, 759 P.2d 242 (1988), and State v. Henry, 302 Or. 510, 732 P.2d 9 (1987)? In Henry, this court concluded that expression cannot be outlawed solely on the ground that it is obscene.

Appellant argues that Minnesota, like Oregon, should find that obscenity is not an exception to the historical guarantees of freedom of expression. In State v. Henry, 302 Or. 510, 515, 732 P.2d 9, 13 (1987), the Oregon court agreed with Justice Douglas' dissenting opinion in United States v. 12 200-ft. Reels of Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973), as setting forth the correct historical perspective on federal obscenity law.

" 78 Or App at 396 n 6. See also the dissenting opinion of Van Hoomissen, J., 78 Or App at 407 n 2. On review in Henry, 302 Or. 510, 732 P.2d 9 (1987), the Supreme Court did not agree that the vagueness issue had been raised, and it commented: "The Court of Appeals reversed the convictions, holding that ORS 167.087 is unconstitutionally vague.