concurring.
The majority holds that Nyssa City Ordinance 578 does not constitute an impermissible restraint on protected expression because the conduct it regulates — nude dancing— is contained wholly within a well-established historical exception to Article I, section 8, of the Oregon Constitution, and thus does not constitute protected expression for the purposes of the state constitution. I agree with the majoritys conclusion that the ordinance does not violate Article I, section 8, but for a different reason: Ordinance 578 is not directed at the substance of any opinion or the subject of any communication. Therefore, it does not implicate section 8. Alternatively, it should be held to focus on the effects or harms that could occur because of the close proximity of patrons to nude dancers and the potential of sexual contact between them, and therefore, even though it burdens freedom of expression, it is a permissible regulation for purposes of public health, safety and welfare.
Article I, section 8, 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 of that right.” In State v. Robertson, the court said that Article I, section 8, “forecloses the enactment of any law written in terms directed to the substance of any opinion or any subject of communication.” 293 Or 402, 412, 649 P2d 569 (1982) (emphasis added).1 In State v. Stoneman, 323 Or 536, 543-44, 920 P2d *640535 (1996), regarding the resolution of a free speech issue under Article I, section 8, the Supreme Court said,
“We begin th[e] exercise by deciding whether [the disputed provision] was on its face ‘written in terms directed to the substance of any “opinion” or any “subject” of communication.’ Robertson, 293 Or 412 * * *
‡ %
“[T]he universe of statutes may be divided initially into two categories — those that focus on the content of speech and those that focus on the effect of speech.”
The majority’s first error is its failure to follow the analytical template articulated in Stoneman. The majority apparently assumes that Ordinance 578 is directed at the content of protected expression and, accordingly, leaps immediately into the historical exception analysis that follows from that conclusion. Instead, we must begin by inquiring whether the ordinance is directed at the substance of any opinion or the subject of any communication. That query begins with the text of the ordinance. NCC § 5.10.130(17), the challenged portion of the ordinance, provides,
“No entertainer is permitted to be unclothed or in less than opaque and complete attire, costume or clothing, so as to expose to view any portion of the pubic region, buttocks, genitals, vulva, or anus, except removed at least four feet (4') from the nearest patron.”
Facially, the terms of the above subsection are not “directed to the substance of any opinion,” or the “subject of communication.” The ordinance prohibits neither nude dancing nor the communication of an erotic message through the medium of dance. At most, the ordinance deprives the patron of a more intense erotic experience by imposing barriers of space or other mediums between the patrons and the performers. On the record before us, there is nothing that suggests that the content of the dancer’s communication is inhibited in any manner by the four-foot spatial barrier required by the ordinance. Moreover, as will be discussed later in this *641opinion, the barriers required by the ordinance are aimed at preventing unlawful sexual contact, enhancing dancer and patron safety in the same manner that barriers in theaters or public auditoriums promote public safety.2
Other courts that have considered similar restrictions on the proximity of nude dance performers to patrons agree that distance and barrier restrictions are not restraints on expression. See, e.g., Barnes v. Glen Theatre, Inc., 501 US 560, 571, 111 S Ct 2456, 115 L Ed 2d 504 (1991); BSA, Inc. v. King County, 804 F2d 1104, 111 (9th Cir 1986) (18-inch stage and six-foot distance requirement upheld as not violative of freedom of expression); DFW Vending, Inc. v. Jefferson County, Tex., 991 F Supp 578 (E D Tex 1998); Colacurcio v. City of Kent, 944 F Supp 1470 (W D Wash 1996), aff'd, 163 F3d 545 (9th Cir 1998), cert den, 529 US 1053 (2000) (nothing under the First Amendment prohibits a 10-foot buffer zone between dancers and customers and there is no constitutional right to the maximum erotic experience possible); City of Colorado Springs v. 2354 Inc., 896 P2d 272, 297-98 (Colo 1995) (three-foot buffer zone upheld); Ino Ino, Inc. v. City of Bellevue, 132 Wash 2d 103, 937 P2d 154, opinion amended, 943 P2d 1358 (1997), cert den, 522 US 1077 (1998) (four-foot buffer zone upheld); DCR, Inc. v. Pierce County, 92 Wash App 660, 964 P2d 380 (1998), rev den, 137 Wash 2d 1030 (1999), cert den, 529 US 1053 (2000) (the proximity component of dancing is mere conduct that is not constitutionally protected; 10-foot buffer zone is not directed at the expressive element of speech). Although the above cases do not interpret Article I, section 8, specifically, their reasoning informs our decision on whether section 8 is implicated by the reach of the ordinance.
A comparison of the space restriction in Ordinance 578 with the ordinance at issue in Sekne v. City of Portland, 81 Or App 630, 726 P2d 959 (1986), rev den, 302 Or 615 (1987)3 is also instructive. The ordinance in Sekne prohibited, *642in part, stage or floor show entertainers from exposing genitalia or breasts to public view during a performance. We began our analysis in that case by observing that under some circumstances, nude conduct could constitute “expression” within the meaning of Article I, section 8. We cited City of Portland v. Gatewood, 76 Or App 74, 708 P2d 615 (1985), rev den, 300 Or 477 (1986), for that conclusion. Moreover, we reasoned that dance is protected by Article I, section 8, and held that “[n]udity alone does not take dance out of the realm of protected expression.” Sekne, 81 Or App at 637. Here, Ordinance 578 permits what the ordinance in Sekne prohibited insofar as nude dancing is concerned. Ordinance 578 does not prohibit a performer from dancing erotically for a patron; rather, it merely imposes the requirement of a spatial barrier between the performer and the patron. The contrast between the ordinance in Sekne and Ordinance 578 illustrates that the latter is not directed at the substance of any opinion or the subject of any communication and thus, does not implicate Article I, section 8.
It could be argued that the ordinance violates Article I, section 8’s prohibition because it focuses on only one disfavored type of entertainment rather then all kinds of entertainment where public health concerns for performers and patrons also exist. See City of Eugene v. Miller, 318 Or 480, 491, 871 P2d 454 (1994) (holding that the state or a local government may not treat those who sell expressive material “more restrictively” than those who sell other forms of merchandise). Although an ordinance may not be “directed in *643terms against any subject of expression,” it may still impermissibly burden the right of free speech as applied if it reaches privileged communications. That is, apparently, the concern of Judge Armstrong in his dissent.
Judge Armstrong writes,
“A restriction on the manner in which expression can occur based on the content of the expression is a restriction on expression. It does not become something other than a restriction on expression simply because some expression can occur notwithstanding the restriction.”
184 Or App at 653 (Armstrong, J., dissenting) (footnote omitted). That reasoning proves too much. A “restriction” or “to restrict” in the context of section 8’s prohibition against laws restricting the freedom of expression means “to check, bound or decrease the range, scope, or incidence of.” Webster’s Third New Int’l Dictionary 1937 (unabridged ed 1993). There is no persuasive assertion in this case that a four-foot separation between performers and patrons will somehow, in the ordinary understanding of the word “restrict,” decrease or limit the erotic message of the performance. The message of the performance remains the same, whether viewed with, or without the barrier.
Moreover, Judge Armstrong’s reasoning belies a commonsense understanding of section 8’s guarantee against impermissible burdens on free speech. A local government may enact reasonable regulations in furtherance of its legitimate interest in promoting public health, safety and welfare. City of Astoria v. Nothwang, 221 Or 452, 460, 351 P2d 688 (1960). Even assuming that the requirements of the ordinance constitute a burden on expression, they are reasonable. If the four-foot spatial barrier makes it more difficult for a patron to view a performance, the public health, safety, and welfare concerns underlying the requirement render it a permissible burden on the freedom of expression, so long as it appears from the regulation that the nature of the expression reasonably requires regulation in a manner differently and more stringently than other forms of expression because of “special need” or “special problems.” Miller, 318 Or at 491.
*644Assuming that NCC § 5.10.130(17) has the appearance of a proscription against certain subjects of expressive material, the remainder of Ordinance 578 provides context and demonstrates that the section at issue is directed at the harmful effects of sexual contact between performers and customers. Laws that focus on forbidden effects, but expressly prohibit the expression used to achieve those effects are analyzed for overbreadth. State v. Plowman, 314 Or 157, 164, 838 P2d 558 (1992), cert den, 508 US 974 (1993). In its analysis of the effects-based statute before it, the Stoneman court explained,
“It is true that, when viewed in isolation, [the statute at issue] appears to have contained a content-based proscription on expressive material. * * *[4] But a statute cannot be read in a vacuum. An examination of the context of the statute, as well as of its wording, is necessary to an understanding of the policy that the legislative choice embodies. * * * A closer look at the provision under examination here, within its statutory context, reveals a different focus.”
323 Or at 545-46 (emphasis added). After examining the wording and the historical context of the statute before it, the court concluded that it prohibited only expression that necessarily involved the actual participation of minor children in sexual acts. Consequently, the court concluded that the statute focused on harmful effects rather than on expression.
In light of the context of Ordinance 578, NCC § 5.10.130(17) is merely directed at prohibiting sexual contact between patrons and performers, thus providing for the safety and protection of both. The prefatory provisions of the ordinance provide, in relevant part,
“WHEREAS, the Common Council of the City of Nyssa, Oregon, is committed to protecting the public safety, health and general welfare of the City through the enforcement of laws prohibiting indecency and sexual offenses, while preserving the constitutionally protected forms of expression, *645and based upon the public testimony and other evidence and information presented to it, the City Council finds that:
“A. Regulation of adult businesses performing live adult entertainment is necessary because in the absence of such regulation, significant criminal activity has historically and regularly occurred;
“B. Important and compelling governmental interests provide a constitutional basis for regulation of sexual conduct and for the regulation of the time, place and manner under which live adult entertainment occurs;
“C. The regulation of distances at which live performances occur from the patrons, the establishment of unobstructed views of such performances at all times and places with minimum levels of illumination, and restrictions on the direct exchange of cash or items between performer and patron, are each directed at the elimination of sexual conduct or other adverse secondary effects, unrelated to the protected expression of the performer;
“D. The provisions of this ordinance shall not be construed as permitting any use, activity or structure that is otherwise prohibited, nor shall it be construed so as to prohibit conduct or expression that are subject to constitutional protection[.]”
(Emphasis added.) The above provisions, when read together with the ordinance’s definitional section and the requirements in the remainder of the ordinance, both clearly identify the specific harms that the ordinance is intended to remedy and addresses those harms.
That understanding leads me to consider the significance of the Supreme Court’s holding in City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), to this case. In Tidyman, the city enacted an ordinance that required adult bookstores to locate at least 500 feet from any residential zone or any private or public school and at least 1,000 feet from other “adult business” in some zones. Id. at 178. The prefatory provisions of the ordinance recited the history of the city’s prior regulation of sexually oriented business. Those provisions stated that the city had earlier found adult bookstores and theaters inherently incompatible with residential zones “because these businesses adversely affect the *646quality and stability of nearby residential areas.” Id. at 184. The ordinance concluded that the clustering of adult business “tended to create or accelerate blighted conditions.” Id.
The city argued that the ordinance focused on the effects of speech. Relying on the assertions made in the prefatory provisions of the ordinance, it asserted that the ordinance undertook to prevent what the city believed was the effect on neighborhoods and communities of commerce involving sexually explicit verbal or pictorial material. However, the court disagreed, saying that the findings in the ordinance “are vague and conclusory. They leave unexplained what is meant by the ‘quality and stability of nearby residential and commercial areas,’ by ‘blighted conditions,’ and by ‘conflicts resulting from close proximity to adult businesses[.]’ ” Tidyman, 306 Or at 185. The court explained,
“In short, the problem with the city’s asserted ‘concern with the effect of speech,’ is that the operative text of the ordinance does not specify adverse effects that constitute the ‘nuisance’ attributable to the sale of ‘adult’ materials and therefore does not apply only when these adverse effects are shown to occur or imminently threaten to occur. Rather, the ordinance makes a one-time legislative determination that retailing substantial quantities of sexually oriented pictures and words within the proscribed area will have adverse effects that retailing other pictures and words would not have, and that it therefore can be restricted as a ‘nuisance’ by a law describing the materials rather than the effects. By omitting the supposed adverse effects as an element in the regulatory standard, the ordinance appears to consider the ‘nuisance’ to be the characteristic of the ‘adult’ materials rather than secondary characteristics and anticipated effects of the store. Such lawmaking is what Article I, section 8, forbids.”
Id. at 185-86 (footnote omitted). Thus, under Tidyman,
“a regulation ostensibly directed against expression might pass constitutional muster, provided that such a regulation in fact was directed toward negative effects sought to be prevented and also specified the harm that otherwise would arise if the regulation were not adopted.”
League of Oregon Cities v. State of Oregon, 334 Or 645, 56 P3d 892 (2002).
*647Tidyman’s holding is inapposite to the issue in this case. The regulation in Tidyman was aimed at the subject of communication, i.e., the prevention of the sale or distribution of expressive adult material in certain geographical areas. It could have passed constitutional muster under Article I, section 8, only if it fell within the second Robertson category, i.e., laws that focus on forbidden effects, but expressly prohibit the expression used to achieve those effects. As I have stated previously, the four-foot spatial barrier at issue here is not a regulation that prohibits expression. Rather, in contrast to the ordinance in Tidyman that prohibited the dissemination of expressive materials, the city of Nyssa’s ordinance allows nude dancing to occur.
Even if the city’s ordinance is deemed to be a law that prohibits certain expression to prevent harmful effects, the language of the ordinance, unlike that in Tidyman, clearly identifies the harm to be prevented. The provisions of Ordinance 578 identify the prevention of public sexual contact between performers and patrons as the government interest carried out by the restrictions the law imposes. The harmful effects to public health engendered by public sexual contact for purposes of paid entertainment are evident from the terms of the ordinance itself. It takes no stretch of the imagination, given the recitals in the ordinance and the erotic nature of the dancing at issue, to perceive that, in the absence of a barrier between performers and patrons, the threat of such harmful activities as “lap dancing,” the touching of each other’s sexual body parts by performers and patrons, and the resulting exchange of money for such sexual contact would be imminent and likely to occur.5 The city need not wait until such harm actually occurs to regulate it. Unlike the ordinance in Tidyman, which presumed harm from adult bookstores without demonstrating any adverse effects, the harm from sexual contact between performers *648and patrons to public health that the City of Nyssa’s ordinance seeks to prevent is clear from the text and the context of the ordinance itself.
That view is supported by our holding in State v. Maynard, 168 Or App 118, 5 P3d 1142 (2000), rev den, 332 Or 137 (2001). In Maynard, we held that ORS 165.065(lXa), the statute at issue in the case, addressed harmful effects that the legislature could constitutionally proscribe and would be constitutional if the reach of the statute were not overbroad.6 We concluded that the legislative, effect-oriented “motive [was] obvious from the overall framework” of the law, even though it was not expressly referenced in the ordinance. Maynard, 168 Or App at 124. Here, the ordinance’s provisions regarding illumination, visibility and the additional requirement of a continuous railing of at least three feet in height separating the performance area and the patron seating area, in addition to the four-foot spatial separation, make the ordinance’s focus obvious. Understood in context, the regulatory provisions of the ordinance directly address the harms identified in the prefatory provisions of the ordinance.
One of the dissenting opinions contends that the above analysis cannot be reconciled with the principle of Tidyman that lawmakers must specify the harm in the regulation and may ban the expression only when it causes harm or is likely to do so. 184 Or App at 656-57 (Schuman, J., dissenting). Judge Schuman concludes that the defect that existed in Tidyman also exists in Ordinance 578. He asserts that “[w]e cannot say that every act of nude dancing within four feet of a patron necessarily involves sexual contact or even that it creates a high likelihood of sexual contact.” 184 Or App at 657-58 (Schuman, J., dissenting) (emphasis added).7 I have previously expressed why I believe the holding of Tidyman to be inapplicable and, even if it is applicable, *649why Ordinance 578 satisfies its requirements. I add only that Judge Schuman’s apparent understanding of the Tidyman principle as applied to this case would mean that, before an ordinance could pass constitutional muster, the local government would have to find with certainty that the harm would occur in every instance in which it was sought to be prohibited. Such a rule presents an impossible burden for a local government to meet, a result that the framers of Article I, section 8, could not have intended regarding all sexually oriented expression. See Ciancanelli, 181 Or App at 9-15. Moreover, it is inconsistent with the Supreme Court’s exposition of Tidyman in League of Oregon Cities which suggests that it is possible for a governmental entity to craft a regulation dealing with sexually oriented expression so long as it specifies the harms sought to be prohibited.
When a law is characterized as focusing on forbidden effects, but expressly prohibits expression used to achieve those effects, the next step of the constitutional analysis is whether the scope of its regulation regulates only the proscribed harm and not protected expression. As the court noted in Stoneman,
“[Statutes that are by their terms aimed only at ‘effects’— also are subject to challenge under Article I, section 8, on vagueness grounds or on the ground that the statute’s reach, as applied to defendant, extends to privileged expression.”
323 Or at 543. However, defendants make no facial vagueness or overbreadth challenges in this case.8 Instead, they argued to the trial court by way of demurrer that, even if the ordinance were determined to be an effects-oriented statute, and therefore not facially unconstitutional, they were entitled to challenge the city’s enactment process and the validity of the ordinance’s “findings.” Defendants told the trial court *650that they wanted to put on evidence in support of their demurrer, to show that (1) defendant’s other nude dancing club had not caused any of the undesired effects about which the city purported to be concerned, and (2) the city had not held a hearing to establish the necessity of the regulation. The trial court resolved that argument by ruling that it was procedurally improper to consider any proffered evidence because their challenge was made by demurrer.
On appeal, defendants also assert that, “[i]f the Nyssa four foot ordinance falls into ‘type two’ of the Robertson analysis, the trial court erred in denying the defendants the opportunity to present evidence.”9 That argument is resolved by ORS 135.630.10 A demurrer can be raised for a number of reasons, but all of the reasons require a showing that, on its face, the accusatory instrument is inadequate. For instance, when a challenge is made to the constitutionality of the underlying statute on which the defendant is being charged, it is a challenge under ORS 135.630(4) that such a statute is incapable of providing the basis for a conviction. See, e.g., State v. McKenzie, 307 Or 554, 560, 771 P2d 264 (1989) (“If a statute is constitutionally too vague, then the facts alleged in an indictment under such a statute do not and cannot constitute an offense.”). Such a challenge is resolved on the face of the demurrer. State v. Horn, 57 Or App 124, 128, 643 P2d 1338 (1982) (“In order to prevail on a demurrer on constitutional grounds, defendants must show that the statute under which they were charged is overbroad (or vague) on its face”) (emphasis added). The resolution of a demurrer requires a ruling as a matter of law, that the statute being challenged either is, or is not, constitutional. See State v. Weber, 172 Or *651App 704, 714, 19 P3d 378 (2001) (“Because the citation was facially sufficient, the court properly denied the demurrer.” (footnote omitted; emphasis added)). Thus, the trial court did not err in denying defendant’s request to put on evidence in this case.
In sum, the majority errs when it analyzes the city’s ordinance as if it is directed at the content of communication and then considers whether the subject of the ordinance falls within a historical exception. Rather, the ordinance does not implicate Article I, section 8, because it is not directed at the substance of any opinion or the subject of any communication. Even assuming that the law restricts expression, it is clearly directed at preventing sexual contact between performers and patrons and therefore must be analyzed as a law that focuses on the effect rather than the content of expression. In light of those conclusions and the fact that there is no claim that the reach of the ordinance is overbroad, defendant’s challenge under Article I, section 8, necessarily fails. For the above reasons, I concur in the majority’s result, but not its reasoning.
An effects-oriented law is permissible in the sense that it is “not a law whose enactment was for this reason alone wholly withdrawn from legislative authority *640by [A]rticle I, section 8.” Robertson, 293 Or at 415. However, when a statute necessarily implicates speech in the definition of the offense, “the statute is susceptible to attack for possible overbreadth.” Id.
See, e.g., City of Portland v. Ayers, 93 Or App 731, 735, 764 P2d 556(1988), rev den, 308 Or 79 (1989) (holding that an ordinance prohibiting the operation of a sound-reproducing device on the public right-of-way that was audible 50 feet or more from the device “obviously does not prohibit speech”).
The majority holds that the reasoning in State v. Ciancanelli, 181 Or App 1, 45 P3d 451, rev allowed, 335 Or 90 (2002) compels the conclusion that Sekne’s *642ruling that some forms of nude dancing are constitutionally protected expression must be overruled. Ciancanelli involved nude performers who performed acts of public masturbation and public sexual intercourse in violation of ORS 167.062. We said, “[E]ven assuming that the statute restrains expression, we conclude that the restraint does not run afoul of Article I, section 8.” 181 Or App at 7. We then went on to determine that the conduct at issue fell within a historical exception to Article I, section 8. Whether nude dancing is the kind of conduct that also falls within a historical exception to section 8 was not an issue that was presented or argued in Ciancanelli. Article I, section 8, is not a self-announcing rule of law, as demonstrated by the diverse interpretations of the Oregon Supreme Court on the subject. Its interpretation is dependent on the individual facts and law of each case. The implication of the historical information in Ciancanelli regarding the continuing validity of Sekne and whether nude dancing was considered by the framers to constitute a historical exception to section 8 is not an issue we should decide in this case because it is unnecessary to our decision.
Former ORS 163.680 (1987), repealed by Or Laws 1995, ch 768, § 16, made it unlawful for any person to pay or give anything of value to observe explicitly sexual conduct by a child known by the person to be under 18 years of age or pay or give value to obtain a photograph, motion picture, videotape, or other visual reproduction of sexually explicit conduct by a child under 18 years of age.
One need only to read the facts described in Ciancanelli, 181 Or App at 3-4, to arrive at such a conclusion. The court noted in Tidyman that a city need not wait until substantial harm occurs to impose restrictions. The city must merely show “the reality of the threatening effect at the place and time” specified in the ordinance. 306 Or at 188. Due to the imminence of the harm described throughout the provisions of the ordinance, that requirement is met in this case.
Prom the text and the context of the statute, we discerned that the legislature’s purpose in enacting ORS 167.065(l)(a) was “to protect children from the effects of hardcore pornography.” Maynard, 168 Or App at 127.
Judge Schuman would distinguish the holding in Stoneman from this case because child abuse arising from pornography depicting real sexual acts "was a necessary fact” in that case. 184 Or App at 657 (Schuman, J., dissenting). The fact that the particular ordinance at issue in this case differs in language and content from the statute the court considered in Stoneman does not affect the applicability of the broad rule set forth in that case. When determining whether a law restricts expression, we must look at the text and context of the law to determine whether it *649is directed to the subject of any opinion or communication and, if so, whether it focuses on the content or, alternatively, the effect of such expression.
At one point in their brief, defendants assert that, “[i]f this court does not believe that this ordinance is directed to the content of expression, then we must look to the second Robertson category, consisting of laws that focus on forbidden effects, but expressly prohibit expression used to achieve those effects.” Although the sentence appears to point to an overbreadth argument, the argument that follows undercuts that notion.
The remainder of defendant’s argument is that the city must hold an adjudicative hearing in order to determine whether the particular businesses being regulated will actually result in the type of harm being regulated. Therefore, according to defendant, the city had the burden in this case of showing that it made sufficient adjudicative findings, and the city did not present evidence of a hearing at which the findings were made.
ORS 135.630 provides, in part:
“The defendant may demur to the accusatory instrument when it appears upon the face thereof.
* * * *
“(4) That the facts stated do not constitute an offense[.]”
(Emphasis added.)