Freedom Without Permission: Oregon's Free Speech Guarantee
How California Manages Speech, Federal Law Balances It, and England Punishes It
Most Americans believe they live under “free speech.” Fewer understand how conditional that freedom actually is. In most of the country, speech is protected until the government decides it has a sufficiently good reason to regulate it. Courts weigh interests, apply scrutiny, balance harms, and determine whether expression may be limited. The result is a system in which speech is not sovereign—it is permitted so long as it remains acceptable to institutional judgment.
Oregon is different.
Not symbolically. Not rhetorically. Structurally.
Oregon’s Constitution does not say that speech is protected unless the state has a compelling reason to interfere. It says something far more radical: the state has no authority over expression at all. Article I, section 8 provides that “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.” That final phrase—on any subject whatever—is not decoration. It is jurisdictional. It draws a hard boundary around the domain of expression and says: the legislature does not belong here.
Most American free-speech law asks whether a restriction is justified. Oregon asks whether the state even has the right to be asking in the first place.
This is not theory. In 1982, in State v. Robertson, the Oregon Supreme Court articulated a doctrine that still governs today: if a law is written in terms of what may or may not be said, it is unconstitutional unless it falls into a narrow set of historically recognized exceptions—fraud, perjury, solicitation of crime, true threats tied to criminal conduct. There is no balancing test. No “important government interest.” No allowance for moral regulation, public sensibilities, or institutional convenience. Either the law targets expression, in which case it fails, or it regulates conduct, in which case it may stand.
This is a different theory of power. The federal system treats speech as a right to be weighed against other interests. Oregon treats speech as a domain outside government authority altogether.
To see how unusual this is, look south.
In California—and under federal doctrine generally—speech is protected, but conditionally. Courts ask whether the government’s interest is sufficiently important, whether the restriction is narrowly tailored, whether it leaves open alternative channels. Professional speech may be regulated. Institutional “civility” may be demanded. Tone, manner, and even moral framing can become subjects of oversight. The question is never “does the state have jurisdiction here?” It is always “has the state justified itself adequately?”
This is why loyalty-style affirmations and civility pledges can exist at all. The architecture of federal free-speech law assumes that expression is something the state may manage, so long as it manages it carefully. Speech is not outside power. It is balanced within it.
Oregon rejects that premise.
Here, the state may punish fraud, threats, coercion, perjury, and criminal acts. It may regulate conduct. What it may not do is decide which ideas are acceptable, respectful, offensive, harmful, or dangerous. It cannot police tone. It cannot mandate dignity of opinion. It cannot condition professional standing on expressive alignment. Those mechanisms are not merely disfavored. They are constitutionally impossible, because they require the state to claim authority over expression itself.
This difference becomes even clearer when placed beside England.
In modern British law, expression is routinely subordinated to social order and emotional safety. Under public order statutes and “hate speech” laws, expressing an opinion that someone finds “hostile,” “offensive,” or “disturbing” can trigger investigation, arrest, and, in some cases, imprisonment. The test is not whether speech is tied to criminal conduct. It is whether it causes distress, alarm, or perceived harm to others. The state openly claims the authority to regulate belief, tone, and moral stance in the name of public harmony.
That is not an aberration. It is the logical end of a system in which speech is something government is expected to manage.
Oregon stands at the opposite pole.
Its constitution did not emerge from modern rights-balancing theory. It was written in 1857 by people who had already seen what happened when governments were allowed to police morality, religion, dissent, and “dangerous ideas.” At the time, much of the United States still enforced blasphemy laws, sedition statutes, obscenity bans, and loyalty requirements. “Public order” and “community values” were routine justifications for silencing heterodoxy. Oregon’s framers rejected that entire project. They did not try to design better rules for censorship. They removed the state’s jurisdiction over expression altogether.
What makes Oregon unique is not that it “values” speech more highly, but that it assigns power differently. Most systems ask: when should government be allowed to intervene? Oregon asks: why would government ever have authority here?
That distinction matters now more than ever. Modern regulation rarely arrives in the form of overt censorship. It arrives through licensing, professional discipline, workplace codes, administrative rules, and moralized standards of “appropriate” expression. Speech is seldom banned outright; it is made institutionally dangerous. One may speak, but only at one’s own risk.
Oregon’s constitutional structure does not permit that form of control. The state cannot discipline expression because it is harsh, unsettling, controversial, or morally disfavored. It cannot demand ideological alignment. It cannot supervise conscience.
This protection is not fragile. It is embedded in constitutional text, reinforced by decades of precedent, and internalized as part of Oregon’s legal identity. To undo it would require a public decision to grant the state authority over expression itself—a fundamental redefinition of where power ends. That is not a quiet change. It is a repudiation of principle.
We are accustomed to thinking of free speech as something the government grants and protects. Oregon’s constitution reflects a deeper truth: some domains do not belong to the state at all.
Expression is one of them.