SB Nation

Susan Shepard | October 28, 2015

The State v. Robertson

How Four Football Players Beat the Rap and Changed Free Speech in Oregon

Photo: University of Oregon/Collegiate Images/Getty Images

The State v. Robertson

How Four Football Players Beat the Rap and Changed Free Speech in Oregon

by Susan Elizabeth Shepard

Editor’s Note: It is the policy of not to publish the names of minors who come forward with allegations of sexual abuse or rape. It is also the policy not to publish the names of adults who come forward with allegations of sexual abuse or rape unless those individuals are willing to be named in the media.

In this state any person can write, print, read, say, show or sell anything to a consenting adult even though that expression may be generally or universally considered “obscene.” —State v. Henry, Supreme Court of Oregon, 1987

It is while watching Portland’s annual Vagina Beauty Pageant, a very explicit talent contest, that Oregon’s commitment to protecting free speech really shines. The pageant is the product of Portland’s surplus of strip clubs and the lack of restrictions on the performances in them: it’s completely legal for a performer to do a magic trick in a liquor-serving bar that would either earn them a ticket or an arrest in any other state.

That Oregon has a lot of strip clubs is well known to any resident. Why here? Locals understand it’s partly because Oregon loves free speech. It’s the only state to have no crime of obscenity, which remains a federal offense. Oregon’s free speech protections are far more expansive than those of the federal government. The all-nude, liquor-serving strip clubs are just the most visible manifestation of a legal framework that protects everything from naked bike rides to verbal harassment to unlimited campaign spending.

In this state’s truly weird fashion, University of Oregon football deserves credit. In 1980, during a historically awful scandal-ridden era of the program, four Ducks players were charged under a coercion statute that made it a crime to use a threat to publicly expose “a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule.” The subsequent case, State v. Robertson, resulted in a unanimous Oregon Supreme Court decision that has been the single most important free speech decision in the state’s history.

The original charges in Robertson have largely been forgotten, but they are stunning. Few people in Oregon or anywhere else know of the case, much less that it emerged from the worst time in Ducks football history from an incident that is a case study in the sordid intersection of collegiate athletics, entitlement and the legal system. It is also so similar to current events that it appear to be just another instance of a story that repeats over and over again; the only things that ever seem to change are the details.

Every college football program has its fallow times, but Oregon’s futility was impressively consistent until the current century, when a healthy infusion of Phil Knight’s money helped the Ducks become one of the most potent programs in the NCAA. Before that, there were decades of nothing but pure struggle in Eugene before the Ducks started notching post-season appearances and single-digit national rankings. They did not appear in a single postseason game between the 1963 Sun Bowl and the 1989 Independence Bowl; and after the formation of the Pac-8 in 1968, did not go to a single Rose Bowl until the ‘90s. They played in one of the worst college football games in history, turning the 1983 Civil War with bitter in-state rivals the Oregon State Beavers into the infamous Toilet Bowl, a game that ended in a scoreless tie with a total of 11 turnovers and four missed field goals.

Moves were made to run them out of the Pac-8 in the 1970s, when other conference schools suggested that they and Oregon State might be more comfortable in a league better suited to their achievements, like the Big Sky. They averaged only four and a half wins per season, few in league play, as league titles and bowl berths usually went to USC, UCLA and Washington. Oregon had last won a conference title in 1957. Loving Ducks football meant intimacy with failure.

Joe Robbins/Getty Images

After the school briefly flirted with Bill Walsh, Rich Brooks took his first head coaching job in this desperate situation in 1977. Despite their recent history, the team mattered in Eugene and in Oregon; the only major league team in the state was the Portland Trail Blazers. Oregon and Oregon State football were the state’s biggest draw in sports.

Still, Ducks football struggled for relevance in a newly expanded Pac-10. Now they had to compete with two more teams, Arizona State and Arizona, for the recruits not taken by other league powerhouses . Although the school initially paid Brooks less than $35,000, they backed it up with a $100,000 recruiting budget, second highest in the Pac-10.

It was starting to pay off in 1979, when Brooks was named Pac-10 Coach of the Year after the Ducks finished 6-5, their first winning season in nine years. His leading scorer, tailback Dwight Robertson, and leading receiver, Ricky Ward, were both returning. Brooks had depth at QB, cause for optimism for 1980.

Oregon enjoyed its turnaround season for about a month before a series of scandals rocked the program. After an extensive cash-for-credits scam was uncovered in Arizona State football, evidence of fraudulent transcripts and phony class credits for dozens of college athletes around the country were discovered by law enforcement, the NCAA, and the universities themselves. For Oregon, the trouble began when it was revealed that three players had received credits for an extension course they never took called “Current Problems and Principles of Coaching Athletics” at Los Angeles Valley Community College. That Oregon assistant coach John Becker had been the head football coach at LAVCC just prior to coming to Oregon didn’t look good. University President William Boyd asked Becker for an explanation. Instead, Becker tendered an unsigned letter of resignation.

“His failure to give me such a letter is liable to be taken as a confession of guilt,” Boyd told the Portland Oregonian. “Rather, I think he is living by a code, a different code than I live by. His is a macho code where you don’t finger those involved at the other end.”

Sporting News via Getty Images
Above: Former University of Oregon football coach Rich Brooks.

Brooks turned in his own resignation, saying at the time, “My action solely reflects my support of John and my feelings for him plus my overall responsibility for the football program.” Boyd rejected the letter, absolving Brooks of any real responsibility although he was later fined, and Brooks stayed on through 1994 before moving on to coach in the NFL and at Kentucky before retiring after the 2009 season.

Reporter Clay Eals had been on the Eugene beat for the Oregonian since the early ’70s and remembers Boyd being genuinely furious.

“He basically said he’d rather not have any athletics at all if it’s gonna besmirch the image of the university,” said Eals.

In that, recalls Eals, Boyd wasn’t in accord with much of Eugene. “The ‘town’ of the ‘town and gown,’ those people, their main concern about the U of O was whether they had a good sports team,” said Eals.

Boyd also initiated his own inquiry, headed by a law professor, before welcoming the FBI’s presence on campus to investigate possible mail fraud and bribery related to the fake credit scam. Players who had just told the university and the papers that they absolutely had attended the class suddenly changed their tune and admitted the credits were unearned when federal agents showed up.

Ultimately, seven Oregon players were found to have received fake credits. Oregon wasn’t even the worst offender in the Pac-10, which effectively became the Pac-5 for the 1980 season after the conference declared Oregon, Oregon State, UCLA, USC and Arizona State ineligible for postseason play, all for similar incidents.

Boyd’s inquiry found more than just academic problems. Students and assistant coaches were also improperly using campus lines and department credit cards to pay for long distance phone calls. An illegal travel slush fund, used to buy tickets for players and recruits, was discovered at a local travel agency. The responsibility for determining if any of these offenses merited criminal prosecution fell to the Eugene Police Department and the Lane County District Attorney’s office, where DA J. Pat Horton convened a grand jury to look into possible fraud and theft charges.

As the detectives started asking around campus about departmental misconduct, fellow students made allegations of widespread theft, burglary and assault by Ducks athletes, leading to more investigations. The grand jury returned indictments over the summer of 1980 for seven football players for telephone credit card fraud charges and two basketball assistant coaches for theft charges related to the travel fund.

Ducks fans were outraged — not over the potential crimes, but that someone dared to investigate the athletes at all. Bumper stickers reading “Rich Brooks for DA” appeared on cars around town and the Eugene Register-Guard and Oregonian published angry letters to the editor about the unfair persecution of the Ducks. T-shirts bearing an illustration of the Ducks’ mascot in see/speak/hear no evil poses were sold in stores, a very Oregon precursor to “Stop Snitching” shirts. The investigation wasn’t gaining a lot of traction in the community. Ducks fans didn’t buy into the fiction that players were there for an education or feel outrage over a few thousand dollars in long-distance calls and plane tickets.

[To] affect the lives of young men like this arbitrarily is pretty harsh.—Rich Brooks

But college football’s governing bodies were invested in appearances, and just two weeks before the start of the 1980 season, the Pac-10 blindsided the Ducks and revoked three players’ conference eligibility for the entire year. Junior defensive tackle Gerald Haynes, junior split end Ricky Ward and sophomore quarterback Andrew Paige were penalized for receiving “extra travel benefits.” They had been given airline tickets “on credit” from the travel slush fund while still recruits, which the conference deemed an even more serious offense than receiving them once they were on the team.

Brooks was aghast — at the actions of the Pac-10. “Of all the things that have ever happened to me in my life, this is the most unfair thing I have ever seen,” Brooks told the Oregonian. “… [To] affect the lives of young men like this arbitrarily is pretty harsh.”

Fortunately for the players, under the rules at the time they could still transfer and play at schools outside of the Pac-10 that season. Ward and Paige, who had been high school teammates at Santa Ana Valley High in Orange County, California, transferred — Ward to Colorado, Paige to Hawaii. Haynes chose to stay at Oregon and wait out the year. Everyone — the town, the university and the team — seemed eager to move on.

Then the investigation uncovered something truly outrageous and far more troubling than improper travel benefits and fudged transcripts. Two days before the Ducks’ first game of the season, the worst criminal charges of the investigation were made public: four former and current players were accused of sexual assault on an 18-year-old female student, including the just-departed Paige and Ward. A third suspect, Reggie Young, had left in the spring because of lack of playing time and had yet to enroll at another school. The three were arrested in Hawaii, Colorado and California, respectively. The fourth, Dwight Robertson, was the only player charged still on the team. Eugene police arrested him at his dorm.

Of the four, Robertson was the best known. Brooks had been an assistant coach for the L.A. Rams when Dwight’s six-time Pro Bowl linebacker big brother Isiah played there. When the Ducks played at LSU in the fall of 1977, Brooks used the connection to recruit the younger Robertson to Eugene. A tailback and return specialist, Robertson is still ninth in the Ducks’ record book for single-season kickoff return yards and seventh in career kickoff return yardage.

In identical indictments, the four players were accused of sodomy, of using “forcible compulsion” to compel a freshman female student into oral sex. They were also each charged with coercion.

Robertson’s name likely came to be attached to the case because he was the only defendant still living in Oregon at the time, the only one still playing football for the Ducks, and the athlete the university had the greatest stake in. Unlike Ward and Paige, he was never implicated in any of the phone or travel fraud cases. But his status as an active Ducks player meant his name and involvement in the case dominated local coverage and interest.

The timing of Robertson’s arrest, two days before the start of the season, and not the content of the charges, became the biggest story in Eugene.

Brooks, once again, was outraged. He told the Oregonian that his arrest was a purposeful distraction by the district attorney’s office. “The investigation on this has been going on for nine months. These indictments could have been made months ago.” At an alumni meeting in Portland, he defiantly promised to play Robertson in the season opener against Stanford: “It would be a crime for me to suspend him at this point because he is innocent until found otherwise.” Boyd had left the university in May to run the Samuel C. Johnson foundation, and his replacement, Paul Olum, issued a statement saying that “to suspend him [Robertson] then could appear then to be determination of guilt whereas the whole American ethic of justice is based on a refusal to make a pre-judgment of guilt until a decision has been rendered in law.”

At the time, the school had no legal obligation to the victim. It would be years before Title IX required schools to take their own action on campus sexual assaults. Before then, victims were generally left to deal with the potential repercussions of pressing charges in the matter of a campus assault on their own.

Although the Eugene Police reported that threats on Robertson’s life had been called into university security, the police department, and a local radio station, Robertson, released on his own recognizance, played that Saturday. He didn’t start against Stanford, but entered the game on the second play, later fumbled a pass in the first quarter and wound up with 5 yards rushing and 12 yards receiving, and scored on a two-point conversion. The No. 15 Cardinal, quarterbacked by sophomore John Elway, beat the Ducks 35-25 in front of 37,300 at Autzen. The Ducks would finish the season with a 6-3-2 record. After gaining 675 all-purpose yards and scoring five touchdowns in ‘80, Robertson ended up redshirting during the 1981 season and returned in 1982 to finish his career.

To defend Robertson, attorney Kenneth Morrow chose to deny not the crime, but the validity of one of the laws Robertson was charged with breaking. Morrow, who died in 2000, was a soft-spoken redhead who had been a college football player himself, quarterbacking Kansas to the Orange Bowl in 1948. He had even considered a coaching career before he got a law degree instead, and moved to Oregon, working as a prosecutor for Lane County before entering private practice in the ‘60s. He built a stellar record as a defense attorney who won the hard cases, successfully defending clients accused of sex crimes and those accused of murdering members of law enforcement.

Morrow was invaluable to the Ducks, earning a mention in an athletics alumni newsletter for representing “many Ducks over the years.” In 1980, he was busy working on the defense for every player charged by the Lane County grand jury.

Former Lane County deputy DA Darryl Larson, who was the prosecutor of all those indictments, remembers Morrow as a formidable courtroom presence. “Ken was [an] extremely good trial lawyer, he had an incredible memory. I mean he could remember verbatim anything anyone had said during the trial,” said Larson. “You had to be really on your toes because sometimes what he would do is he would change one word the person had just said and quote it back as if they had said the exact opposite.”

Morrow’s legal strategy in regard to the charges against Robertson (and the others, whose cases would be tied to any decisions made on his) meant there would be no courtroom cross-examinations, and no plea was entered. Instead, a formal motion known as a demurrer was filed to the coercion charge, stating that no crime had been committed because the statute that had been violated was unconstitutional and should not have been a law in the first place. The case became one of constitutionality rather than guilt or innocence, and began its two-year journey through Oregon’s appellate courts.

Oregon state law defined felony coercion as such: “A person commits the crime of coercion when he compels or induces another person to engage in conduct from which he has a legal right to abstain, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will…expose a secret or publicize an asserted fact, whether true or false, tending to subject some person to hatred, contempt or ridicule.” As the case moved forward, the legalese of the statute left the content of the crime almost invisible, but it remains in police reports.

The incident took place at the University Inn (Barnhart Hall, today), a seven-story, co-ed dorm close to the edge of campus, near downtown Eugene. Although it wasn’t exclusively an athletic dorm, a lot of football players lived in the Brutalist concrete block. According to Darryl Larson, the Inn was run by a handful of particularly intimidating, antisocial football players who regularly stole the property and threatened the safety of other students. Players were known to walk into other students’ rooms and simply take anything they wanted, walking off with their stereos or bicycles.

“It had gotten to the point where University Inn was a terror-filled place to live,” said Larson. “If that gives you a sense of what those kids were going through, it’s just unbelievable. We heard over and over again, that it’s just a frightening place to even live because you didn’t know if you would be slammed up against the windows by some football player who’s thinking you were gonna tell on him, and they were gonna beat the hell out of you if you tried to do that. The men were afraid for their lives and the women were afraid for their sexuality.”

“Melinda” was new to the university and a visitor to the Inn from her off-campus apartment, a girl from a small, rural town for whom Eugene was a big change. [“Melinda” is a pseudonym. She was not named in the press at the time and at no point came forward publicly]. She was a freshman, barely 18, and was in a friend’s room with a group of students on the second floor of the University Inn. Paige and Young’s room was across the hall.

A close relative was also a football player at Oregon. So when Paige, Ward, and Young asked her to talk to them in the hallway, it probably wasn’t the first time they had met. They likely were not complete strangers to her. They certainly seemed to know who she was and had deemed her the target of an assault that would require not physical force but psychological pressure that would be every bit as frightening.

According to the police report, they told Melinda that they had some “compromising pictures” of her, that another teammate had somehow taken a photo of her having sex with her boyfriend. She later told police she did not understand how this was possible, because she was not having sex with her boyfriend. Still, they were so convincing because, as the report stated, “they were very persuasive in their tactics and although she believed in her mind that pictures were not possible, they convinced her it was possible and that they had them,” wrote the detectives. She thought, “What if they really do have something” that would embarrass her? The players might have calculated that Melinda would be especially susceptible to a threat like this. Her family was very conservative and she came from a very religious, sheltered background and may have been a little naïve. She feared what they would think if they heard that nude photos of their daughter were posted all over the University of Oregon.

“They talked to her for some period of time, possibly a half hour, over and over repeating that they had a number of pictures of her and that if she didn’t do what she asked, they were going to plaster the pictures all over the campus, putting them on signs and telephone poles,” said the report.

She went into Paige’s room, and then left, scared. Paige, Ward and Young went back into the hallway and repeated their threat. She went back into the room. According to the report: “[Melinda] told us that she was told that she must give them all ‘head’ and that after she had finished that they would give her the pictures and the negatives.” She felt she had no choice but to comply. After she had done what the three of them said, they called Robertson down to the room. They told her she also needed to do the same for him, and that he would be bringing the photo. They also threatened her and told her not to say anything.”

Both the victim’s statements and Robertson’s say that he arrived after the other players had pressured the victim. He claimed to have had no idea what was going on, although he did admit in later depositions that he saw Young whisper into her ear, then she came over to him and performed oral sex on him. He said he left the room before she left. Her account differs; she said he came into the room and immediately dropped his pants.

“[She] told us that after she had finished doing everything that had been demanded of her, that she was handed a photograph,” reads the report. She said that the photo was of a girl sitting on a toilet and that the photograph was not of her. She walked out and she could hear the laughing behind her as she left.”

Even though they told her not to tell anyone, after the assault, Melinda called her relative on the football team, and told him what they had done. He told her not to tell anyone, that he would handle it.

The next day, he confronted his teammates. Only Ward denied being in the room, but none of them admitted to any sexual activity. Unsatisfied with their response, he went to Brooks and told him what had happened. He told the police that Brooks later said to him each player had a different story, and that although he believed the incident happened, it was her word against theirs, so “no one could do anything about it.” He added that Brooks told him he had warned the players “that he would kick them off the team if they did it again.”

They were not kicked off the team. And Melinda did not go to the police — at least not right away.

It was much more unbelievably gross than the charges that were actually filed would indicate—Darryl Larson

Not until the investigation into other misconduct by Oregon athletes came to campus in 1980, did Melinda finally file a report, doing so in March. She was not alone, but one of more than 20 women who stepped forward during the investigation to report sexual assaults by football players. Paige was accused of assaulting other women, and the student newspaper the Daily Emerald reported that a total of eight players were being investigated for similar crimes. According to Larson, the cases that went to court only represented a fraction of the incidents they looked into.

“There were all these other cases that were reported to us and we interviewed girls who’d been raped or sodomized, brutalized in some way, who were either unwilling to prosecute or we just couldn’t put the case together that we felt we could really charge anybody with,” said Larson. “It was much more unbelievably gross than the charges that were actually filed would indicate.”

Just like Melinda, none of the other victims had reported the incidents to police when they happened because of a fear that nothing would be done, fear of retaliation (one later told the Washington Post she had received threatening phone calls warning her not to testify in front of the grand jury), and fear of public humiliation. At least two victims said they had spoken directly to Brooks about one player in particular: Andrew Paige.

[B]ecause Paige was a high school All-American quarterback, he was able to turn state’s evidence and … get out of it—Daryl Larson

Paige was a star quarterback in high school at Valley High in Santa Ana, California, and was considered a top recruit. Oregon beat out USC, UCLA, Washington and Michigan for him. Before he ever set foot on campus, he already had very talented legal representation: attorney Milton Grimes, best known today for having represented Rodney King against the City of Los Angeles. According to Larson, Grimes had assisted Paige when he was involved in a homicide case with two other defendants before attending college.

“And because Paige was a high school All-American quarterback, he was able to turn state’s evidence and in exchange for testifying against these other two guys, was able to get out of it,” said Larson. “He basically dodged a bullet, goes merrily off to Oregon to play football where he never, in my opinion, did anything for the Ducks except terrorize the campus.”

In addition to the sodomy and coercion charges in regard to Melinda, he was also indicted on a count of burglary and in alleged assaults on two other women: one pressed charges for attempted first-degree sodomy and another for first-degree sexual abuse and attempted rape.

While the charges in Melinda’s assault were tied up in the appeals process, Paige went to trial in the summer of 1981 for the sexual abuse and attempted rape charges. Newspaper accounts of the trial said that the alleged victim went to Brooks after the assault. Brooks then contacted Grimes himself, because of the attorney’s “special relationship” with Paige. The woman testified that Grimes and his wife called her a few days after the incident to apologize for Paige’s behavior, but the judge instructed the jury to disregard that testimony. In court, Grimes then successfully defended Paige, arguing that the woman was paranoid from cocaine use and that her defensive attempts to get out from under Paige when he pinned her on his bed were sexual in nature: “The wriggling could have been seductive, couldn’t it?” he asked. She said, “I thought a physical struggle would make him more violent than words. I’ve been taught that it’s better to be raped and alive than physically resisting and beaten or dead.” The trial lasted a week and after deliberating for just over an hour, the jury returned a verdict of not guilty on both counts.

Paige was also acquitted in a jury trial for burglary later that year, frustrating Larson, who had been unable to get a conviction on any of the grand jury indictments issued thus far. “It didn’t seem to matter what facts or evidence we had, the juries would let him go,” said Larson. “I think it was partly the times, you know. Eugene was desperate for football greatness and I think juries just didn’t want to convict these kids.” Paige eventually pled to a lesser count of attempted sexual abuse on the third victim’s charge of attempted sodomy. He was sentenced to seven months in county jail and paroled after three.

Only in news accounts of Paige’s sexual assault trial do some rare, overt mentions of race occur. In a state that was overwhelmingly white, reporters noted that every player involved in Robertson was black, the victim was white, and in Paige’s subsequent trial, the jury was all white. Eugene had the reputation of being a progressive center of activism, so it is impossible to imagine that was unworthy of notice. Morrow, working on Robertson’s defense, had more than just a successful record defending black clients. He was the recipient of threats when he defended members of Eugene’s small but active Black Panther Party in the ‘60s, people he saw as targets for police harassment. And perhaps he felt the same for the players he defended. A moment from Brooks’ testimony at Paige’s trial certainly was jarring: “She indicated that she was reluctant to press charges. She said she felt he needed some counseling in social behavior and particularly in black-white relations.”

After a county judge granted Robertson’s demurrer in October of 1980, Larson challenged the ruling in the Court of Appeals. This time, the court agreed with the deputy DA. The Oregon Supreme Court then agreed to hear Morrow’s appeal.

In August of 1982, the court issued a unanimous opinion: the statute was unconstitutional. As far as the coercion charge was concerned, no crime had been committed.

Larson was stunned. The court had said, in other words, although an assault may have taken place, there was no crime in the coercion that led to the assault. Telling Melinda they had photos of her having sex and threatening to release them was not a crime, but actually a type of protected free speech.

The justices agreed that the existing statute was simply too broad. In the opinion, Justice Hans Linde wrote that the Oregon Constitution “forecloses the enactment of any law 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 that was well established 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.”

In an opinion of more than 10,000 words, the actual case, the assault on Melinda, is granted only 40 words. Guilt was not at issue, only the validity of the coercion statute. But Linde also wrote that just because the statute was unconstitutional, the actions prosecuted under it should not be interpreted as permissible: “No doubt this [the crime that resulted from coercion] could be prohibited, if the issue before us were the validity of the charge rather than the validity of the statute under which it is brought.” But it wasn’t. The facts were never contested in court.

In an opinion of more than 10,000 words, the actual case … is granted only 40 words

And Oregon history was made. All subsequent free speech cases in the state’s courts referred to the “Robertson framework,” as it came to be known, and its strict interpretation of Article I, Section 8. It was shortly after Robertson that a Portland strip club owner had his dancers go fully nude, and it was the Robertson decision that helped him win in court when the City of Portland tried to make them put the G-strings back on.

Since the Robertson ruling, Oregon’s highest court has consistently struck down laws that restrict expression, departing from both the other states and from the U.S. Supreme Court. In a 2008 hate speech case, where the defendant was accused of blasting a racist, homophobic, and obscene tirade at two women from loudspeakers on his truck at a traffic stop, they declared part of a harassment statue criminalizing “abusive words or gestures, in a manner intended and likely to provoke a violent response” unconstitutional. In 2005, the court struck down a state law forbidding live sex shows and a city ordinance that required nude dancers to maintain a distance of four feet from patrons.

Three attempts at the polls to pass ballot measures amending the state constitution to allow for restrictions on sexually oriented businesses have failed; the last was in 2000. The attempts of legislators to replace Article I, Section 8 with the language of the (federal) First Amendment, language that would allow for more restrictions, have failed. There are still regular attempts by concerned lawmakers in the Oregon legislature to find a way to pass zoning laws, but for the most part the legislature carefully anticipates challenges to these laws, even when they do not attempt to restrict businesses. One recent bill that required strip clubs to post information on workers’ rights and established an anonymous tip line for reporting violations expanded its reach to “live entertainers” because a law directed at a specific type of performance — stripping — likely would not have survived a free speech challenge in Oregon.

The state plainly takes pride in its uncompromising stance on free speech. It owes much to the author of the Robertson opinion, the German-born Linde, now 91. Linde remembers little about the particulars of Robertson, as did nearly everyone contacted about this 33-year-old case, but he does remember a bit more about a later case, City of Portland v. Tidyman, which attempted to enact zoning restrictions on adult businesses.

“It was about a law being used against somebody who sells sexy books or magazines. And the same thing applies to strip joints and so on. You can’t prejudge whether a particular magazine is going to violate something and if you don’t have the evidence you can’t describe exactly what the harm is,” said Linde. “If that’s what they’re arguing, you do that by prejudging the content of the magazines or books or whatever they sell.” And any law that is directed at the content of that expression is invalid.

“That’s why they think that the Oregon Supreme Court has done something special,” said Linde. “Simply the idea of looking at your state constitution and saying ‘It says you can’t pass a law that does such and such, and this is that kind of a law, end of story,’ that’s so unusual!”

As to the legacy of Robertson? “How do I know?” he answered. “See, you’re assuming I’m reading what the courts are saying [today].”

Larson still thinks the court erred in 1982. “The Supreme Court in Oregon basically said that if you shout ‘Fire!’ in a crowded theater, that that’s protected speech, and that is not a law, and should not be the law,” he said. “He (Paige) basically shouted ‘Sex!’ and there wasn’t any, in a crowded community, and (then) used that to force her into sexual acts.”

Melinda had left the school and Eugene by the time the Supreme Court handed down its opinion. After she told him she didn’t want to pursue the sodomy charges separately, Larson filed affidavits dropping the charges against the four players in early September of 1982. In them, he wrote “…[She] advised me that she was disappointed in the Supreme Court’s decision and that she was dissatisfied with the entire process … . She indicated that she was familiar with the outcome of other University of Oregon athlete related cases and that she no longer desired to subject herself to the abuse which she has endured.”

Since the court proceedings were carried out entirely in legal motions and appeals, neither Melinda nor any of her relatives who testified in front of the grand jury ever went to court. Because of this, when reached for comment, more than 30 years later they were surprised to learn that the case actually had gone through the system, and were utterly unaware of its impact on Oregon law. While none of them wanted to speak on the record, one family member said she was personally upset with the outcome of the case, and that this was “a story that seems to be as old as college sports, itself.”

It certainly does. Some 35 years after Melinda’s case, a similar one reveals how complicated seeking justice can be in the context of major college athletics.

This August, a female Oregon student who reported three basketball players had raped her settled a lawsuit against the university for $800,000 and the costs of her education there. Her suit said the university (and basketball coach Dana Altman, originally named but later dropped from the suit) should have known that one of the players, Brandon Austin, had a similar complaint filed against him at his previous school. Altman let the three players play on the team while her complaints were investigated, and they were ultimately expelled. The school’s response to her lawsuit was to access the alleged victim’s confidential records from the university’s counseling center and to countersue her for their legal fees, although that suit was dropped quickly after it sparked widespread outrage on campus and nationally.

Very little has changed in the particulars of these cases across campuses despite the structural changes brought about by Title IX, which now requires that schools carry out their own disciplinary proceedings when allegations of sexual assault are made.

Jonathan Ferrey/Getty Images

Larson believes school investigations can’t be impartial. “It means hundreds of millions of dollars to the U of O, in lots of different ways, having a successful football program. If football players are involved in some accusation of serious bad conduct, is the school really going to be the most independent fair arbiter of whatever is going on? No,” said Larson. “I think it’s sort of crazy to say the institution that relies on these millions of dollars, and the respect amongst its peers around the country would be fair and independent. I mean, they might be, but I wouldn’t say it’s the best plan.”

If anything, the efforts of the Lane County DA’s office and the Eugene Police Department in 1980 stand in stark contrast to stories out of Tallahassee or Missoula in recent years, where local law enforcement and prosecutors were themselves implicated in a failure to address similar assaults.

“I felt like it was important to deal with those victims with very deep respect and consideration in terms of what they were going through psychologically, educationally, and in every other way,” said Larson. “And we in that sense probably were ahead of the curve. I think things are more sophisticated now, but I know certainly these detectives I was involved with were extremely conscious of that and trying to do the best job they could in terms of respecting the victims.”

Yet the reactionary culture of collegiate athletics Larson and the victims encountered then was in step with the emerging conservatism of the coming decade, one that saw many of the freedoms of the ‘60s curtailed and rolled back. Then, as now, athletic talent and a program’s thirst for success could diffuse the consequences and protect its members from social and legal censure.

Tradition is central to the best and the worst parts of college sports. We get older, but the alma mater stays in the same city with the same colors and the same song and the players stay the same age. Old attitudes towards women, sexual assault, and masculinity do not age well. The refusal to engage fully with new ones is nearly universal in collegiate athletics. Perhaps the Oregon Ducks players, who were censured this past January for chanting “No Means No” after their Rose Bowl victory over Florida State, mocking the sexual assault charges against Florida State quarterback Jameis Winston, did not appreciate how no member of a college athletic program is in a position to point fingers.

Given the legal, political, and social changes of the last 30 years, how would the assault against Melinda be charged today? With the caveat that it is difficult to answer hypothetical legal questions, current Lane County DA Patty Perlow wrote in an email “one assumes the young woman has not consented to the sexual contact (defined as deviate sexual intercourse in Oregon). The sexual abuse in the second degree statute (ORS 163.425) provides that subjecting another person to deviate sexual intercourse without consent is a Class C felony.” The act—having sexual contact with someone without his or her consent—remains a crime, although using a threat of embarrassment to induce it does not.

The one definite consequence of this one particular case has been enormous. The effects on expression in Oregon and all the unanticipated consequences are in plain sight; so too are the effects upon how schools choose to protect themselves and their athletes from prosecution. They serve as a reminder that some treasured freedoms come from an ugly fight, where serving justice in the abstract comes about because of a concrete injustice.

Oregon might be different today if Morrow’s challenge had been unsuccessful. It would certainly be at least a little less free and a lot less colorful. But even had the Supreme Court upheld the coercion statues, that does not mean those four players would have been convicted. Not if the success rate of Larson’s other indictments at the time was any predictor. In any circumstance, he just could not get a Lane County jury to indict a football player. This year, the investigation into the accusations against basketball players did not even result in an indictment. Today, the weight of the burden of proof still rests on the shoulders of the victim and those arguing for her; the community and the institutions of higher learning feel their fate, in some measure, is connected to that of the defendant.

In the single criminal conviction Larson obtained out of all of the indictments brought by the grand jury—a plea bargain by Paige to a lesser charge of sexual assault—the judge said at sentencing, “Women, whether they walk naked through the city of Eugene, drunk out of their gourds, have a right to be free from attack.”

How strange that in the future, the legal freedom literally to walk naked would be the direct result of such an attack.

Note: Former Oregon coach Rich Brooks declined to comment, as did Melinda’s family. Attorney Milton Grimes and Dwight Robertson did not return requests for comment.

About the Author

Susan Elizabeth Shepard is a writer in Austin, TX. Her first sports memory is of watching the Rice MOB do a Rambo skit during halftime against the Longhorns. Find her on Twitter at @SusanElizabeth.