dissenting.
The majority holds that defendant did not preserve the issue of overbreadth under Article I, section 8. The majority is wrong. Defendant preserved the issue. We can and should consider it and hold the ordinance to be overbroad under Article I, section 8.
The majority concedes that in the trial court, defendant raised and argued the overbreadth issue under Article I, *744section 8.1 Moreover, the trial court specifically considered the issue of overbreadth when it ruled on the demurrer.2
In his appellate brief, defendant cites and relies on Article I, section 8, and argues that the ordinance violated it. He also argues that “a regulation impinging on permissible free speech must be narrowly drawn to serve a compelling governmental interest.” The majority says that this is only a First Amendment argument and cannot “reasonably be read as including — or intending to include — that issue among his Article I, section 8, complaints.” 93 Or App at 737.3 Defendant, however, did not limit his argument to the First Amendment or cite any First Amendment authority for it. The majority also argues that it is a “truism,” and that defendant “does not flesh [it] out with authority and analysis and does not develop [it] into an argument.” 93 Or App at 737. Defendant’s proposition, however, belies the majority’s position that “nothing in [defendant’s] briefs can reasonably be read as including — or intending to include — that issue among his Article I, section 8, complaints.” 93 Or App at 737. Defendant’s assertion that the regulation is not “narrowly drawn” *745can reasonably be read as including, and intending to include, the issue of overbreadth among his Article I, section 8, complaints.
In the oral argument before us, both counsel acknowledged that the actual issue was overbreadth. Defendant’s counsel urged that “[o]f course the Aziz decision [City of Portland v. Aziz, 47 Or App 937, 615 P2d 1109 (1980)] of this court deals with issues that were raised in the court below, vague, overbroad, and so forth.” He concluded his argument and stated he could answer questions if the court wished. An exchange then occurred that shows that the court and counsel were dealing with overbreadth:
“Joseph, C. J.: I think we’re dealing with something pretty broad prohibition [sic] here, aren’t we.
“Asst. Atty. Gen.: I think we are. But I think the court has identified what the issue is and I don’t have to add a great deal to my brief, even if I could. I think his is—
“Newman, J.: What’s the issue?
“Asst. Atty. Gen.: I find the issue to be to the extent that this does infringe upon speech, is the question, although it is not purposefully or primarily directed at speech, it does have an incidental effect upon speech if it indeed applies to such activity as it was applied to in this case. And I think it does.”
The majority shifts its argument, asserting that, “given defendant’s clear and profuse reliance on the over-breadth issue in the trial court, the absence of argument on that issue in his appellate presentation indicates that he has chosen to rely on other issues instead and has abandoned the overbreadth issue that he raised below.” 93 Or App at 736. The overbreadth issue was not “absent.” Neither counsel considered it “absent” or that defendant had abandoned or overlooked it, and neither counsel was surprised.
In sum, in the trial court, defendant raised the issue of overbreadth under Article I, section 8, as well as under the First Amendment; that court considered both issues and decided them, although adversely to defendant. Defendant *746specifically relied on and cited Article I, section 8, and the First Amendment in his brief in this court and, without referring either to federal or state constitutional authority, argued that the ordinance must be narrowly drawn. In oral argument, court and counsel identified overbreadth as a central issue. The issues of overbreadth under Article I, section 8, and the First Amendment, therefore, were raised and preserved.
Contrary to the majority’s suggestion, the cases support the position that when there is a basis for the court to find that a state constitutional issue of importance is preserved, it can and will consider it, particularly when the issue involves expressive rights and when a federal constitutional issue also is raised. In State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983), the attorney general contended that the Supreme Court should not consider the state constitutional issue at all, “because it was not adequately argued below,” although defendant cited Article I, section 12, below.4 295 Or at 265. He argued, however, “that it was not urged as a basis ‘distinct’ or ‘separate’ from the federal double jeopardy provision, because defendant cited in support of his claim only cases that were themselves decided on federal grounds.” 295 Or at 265. Nonetheless, the Supreme Court, for the reasons it set out in a seven page discussion, stated that “we decline the state’s invitation to hold [that] the defendant’s claim under that section was not raised or preserved.” 295 Or at 268. Here, of course, defendant argued the overbreadth issue below under Article I, section 8, as a distinct and separate issue. See Cooper v. Eugene Sch. Dist. No. 4J, 301 Or 358, 723 P2d 298 (1986).5
*747In State v. Henry, 78 Or App 392, 717 P2d 189 (1986), the defendant, without specifying a constitutional source, demurred to the indictment on the ground that ORS 167.087 was “vague” and “overbroad.” On appeal, he urged that the statute violated Article I, section 8, under the analysis in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). His brief did not refer to “vagueness.” His argument made only the most general reference to vague laws as constitutionally inadequate. Nonetheless, we held that vagueness under Article I, section 8, was adequately raised below and here. 78 Or App at 396 n 6. On review, the Oregon Supreme Court stated:
“Defendant has not made an argument based on vagueness apart from his claim under Article I, section 8, but we understand the Court of Appeals opinion to have seen the two issues as related.” 302 Or at 513.
The Supreme Court then proceeded to “say a word about the vagueness issue”:
“Though we do not disagree with the Court of Appeals, we hold that in any event ORS 167.087 contravenes Article I, section 8, of the Oregon Constitution and cannot be justified as an ‘historical exception’ from Oregon’s constitutional guarantee of freedom of expression.” 302 Or at 513.
*748In State v. Blocker, 291 Or 255, 630 P2d 824 (1981), the defendant failed to cite Article I, section 27, the source of its overbreadth argument. Nonetheless, the Supreme Court chose not to reject the defendant’s overbreadth attack. Here, defendant raised Article I, section 8, the source of his over-breadth argument, both in the trial court and in the appellate court. Moreover, contrary to what the majority says, the over-breadth argument was not “absent” here.
We should conclude that defendant said enough here to raise and preserve the overbreadth issue under Article I, section 8, and that, contrary to the majority’s view, 93 Or App at 741, it is “appropriate” that we consider that issue. It is important to defendant, to the city and to the public; and we should not shy away from considering it, because of an ungenerous view of the preservation of state constitutional issues.
I now turn to the merits. City of Portland v. Aziz, supra, is distinguishable. The section of the ordinance under which the defendant was prosecuted made unlawful the use or operation of a sound production device “between the hours of 10:00 p.m. and 7:00 a.m. so as to be plainly audible within any dwelling unit which is not the source of the sound.” The court held that that portion of the ordinance was not vague or over-broad under the First Amendment and was a valid, reasonable regulation of the time and manner of the exercise of the defendant’s First Amendment rights. The defendant did not raise, and the court did not consider, Article I, section 8. Moreover, the city did not prosecute the defendant under, and the defendant did not challenge or the court consider, the portion of the ordinance challenged here.
The majority agrees that the ordinance is directed against an effect of speech. 93 Or App at 735. The ordinance forbids operation of any device on a public right-of-way for production or reproduction of sound that is “plainly audible 50 feet or more from the device.” To the extent that the amplified sound is speech, I conclude, as does the majority, that the ordinance is directed to the effect of speech as it is produced or reproduced by the device — that is, to the plain hearing of that speech more than 50 feet from the amplifying device. See City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988).
*749Accordingly, we must determine whether the challenged portion of the ordinance is overbroad. “When the proscribed means include speech or writing * * * even a law written to focus on a forbidden effect * * * must be scrutinized to determine whether it appears to reach privileged communication or whether it can be interpreted to avoid * * * ‘over-breadth.’ ” State v. Robertson, supra, 293 Or at 417. The ordinance forbids speech at all times and locations if the device which amplifies it is located on a public right-of-way and if the speech is plainly audible more than 50 feet from the device. Amplification devices, however, ordinarily are indispensable if a speaker is to communicate effectively on a public street to a substantial audience. The ordinance serves to limit the size and proximity of the speaker’s audience.
The public streets are “held in trust for the use of the public * * * for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” See Hague v. CIO, 307 US 496, 515, 59 S Ct 954, 83 L Ed 1423 (1939). They are traditionally open to the public for communication to audiences, large and small. Certainly there are times when a speaker should be able to speak in the public street to an audience, a portion of which hears the speech plainly more than 50 feet from the amplifying device. If, for example, a presidential candidate were campaigning at noon in downtown Portland, he might address an audience large enough to extend more than 50 feet from the amplifying device that he uses. The ordinance, however, would make use of that necessary device unlawful and restrict the candidate’s ability to communicate with the public.
Accordingly, the ordinance, with its flat prohibition beyond the 50-foot radius, is overbroad. It “reaches areas of constitutionally privileged expression and thus is invalid unless its coverage is narrowed to exclude these areas.” State v. Robertson, supra, 293 Or at 435. It takes no account of the time and place of the speech on the public right-of-way, the anticipated size and proximity of the audience or other pertinent circumstances. Judicial interpretation cannot narrow the ordinance. See State v. Robertson, supra. 293 Or at 436. That is a legislative responsibility.
The concurrence argues that the ordinance “is aplace and manner limitation, not a prohibition.” 93 Or App at 742. *750It is not a place and manner limitation; it is a prohibition. See City of Portland v. Tidyman, supra, 306 Or at 182-184; compare Lloyd Corporation v. Whiffen, 89 Or App 629, 750 P2d 1157, rev allowed 306 Or 155 (1988).
Although former section 18.12.020,6 so far as pertinent here, is substantially identical to section 14.24.160, and section 18.14.0207 contains a provision for a variance from the standards or provisions of Title 18, the Portland City Code contains no provision for a variance from section 14.24.160. It is immaterial to the applicability of Article I, section 8, that defendant did not apply for a variance, because the city did not prosecute him under former section 18.12.020; it chose to prosecute him only under section 14.24.160.
I dissent.
Van Hoomissen, Judge pro tempore, joins in this dissent.In support of his demurrer, he asserted that section 14.24.160 “is an unconstitutional infringement of defendant’s right of free speech under Article I, section 8” and that “[t]he ordinance at bar violates the ‘overbreadth’ rule as stated [in] State v. Robertson, [293 Or 402, 410, 649 P2d 569 (1982)].”
The court stated:
“It happened to be my case on appeal. It is [City of Portland v.] Aziz [47 Or App 937, 615 P2d 1109 (1980)]. It already answers all of the questions. It discussed this particular ordinance, 14.24.160, and indicates that it’s perfectly constitutional. It’s not vague, it’s not overbroad and it answers all of the questions that you raised. It’s already been tried and already been heard and already been decided on appeal. Exactly on point.
“* * * [T]he question is whether or not the city ordinance is vague or overbroad, prohibiting this type of conduct. It’s already been answered by the Court of Appeals.”
In support of his second demurrer, defendant again presented his argument that the ordinance was overbroad under Article I, section 8. The court stated:
“With respect to the constitutionality, I think the Aziz case went straight forward and talked about this particular statute. It states that states may place reasonable time, manner and place limitations on the exercise of First Amendment rights and went on to state that the statute was not vague nor overbroad with respect to it. And the court did not feel that there was an infringement of the freedom of speech, a constitutional issue, and therefore I will overrule the demurrer.”
The majority also asserts that defendant’s arguments “do not include anything which comes close to the overbreadth issue.” 93 Or App at 741.
State v. Kennedy, supra, emphasizes the importance of, and reasons for, deciding all questions of state law before reaching the claim that a federal constitutional standard is not met. 295 Or at 262. The court stated that when a source in Oregon law “has been cited but not briefed or argued, we have asked for additional memoranda and further argument.” 295 Or at 268. Here, of course, in addition to raising the First Amendment argument, defendant has briefed and cited his source, Article I, section 8.
In Cooper v. Eugene Sch. Dist. No. 4J, supra, 301 Or at 369 n 12, the court stated:
“In determining whether to reach a federal constitutional claim without first disposing of all issues of state law, including the state’s constitution, one must distinguish three questions: (1) whether an issue has been raised at all; (2) whether any state source has been cited in connection with the issue; (3) whether an argument has been made in support of the state claim.
“An issue that is not raised at all, even on a generous reading, presents nothing to be decided (although an appellate opinion may note that the issue was *747not raised so as to make clear that the case is not a precedent on the question).
“If the issue has been raised in general terms, for instance, that a defendant claims a right to ‘equal protection’ or to counsel, or against self-incrimination or double jeopardy, the claim could refer to several statutory or constitutional rules. We have emphasized that parties should specify the statutory or constitutional sources of their claims, see Sterling v. Cupp, 290 Or 611, 613 n 1, 625 P2d 123 (1981)(citing cases), but also that a party cannot, by omitting a state-based claim, force an Oregon court to hold that this state ‘has fallen below a nationwide constitutional standard, when in fact the state’s law, when properly invoked, meets or exceeds that standard.’ State v. Kennedy, 295 Or 260, 267, 666 P2d 1316 (1983). When only the disposition of a single case is involved, a court ‘may request counsel either to explain the claim under the state law or to abandon it,’ and ‘if it is abandoned the court can note that fact so that the decision at least will not be a precedent on that issue.’ Id. at 268.
“A court, however, is not confined to choosing only among the arguments and authorities cited by counsel for or against a properly identified claim. See, e.g., State v. Bennett, 301 Or 299, 721 P2d 1375 (1986)(Jones, J., concurring). Courts can avoid taking parties by surprise by inviting additional memoranda on inadequately briefed questions, as this court frequently does. That course should be followed whenever a litigant asks a court to invalidate a state statute or rule under the federal constitution without briefing its validity, or a possible valid interpretation, under applicable state law. See, e.g., Planned Parenthood Assn. v. Dept. of Human Res., supra, note 2.”
Former section 18.12.020(b) was amended in January, 1987, to change “50 feet” to “25 feet.” Section 14.24.160 was not amended.
Section 18.14.020 provides:
“Any person who owns, controls, or operates any sound source which does not comply with provisions or standards of this Title may apply for a variance from such standard(s) or provision(s).”
Section 18.14.020(b) provides that review of an application for a variance shall include consideration of at least the following characteristics:
“(1) The physical characteristics of the emitted sound,
“(2) The times and duration of the emitted sound,
“(3) The geography, zone, and population density of the affected area,
“(4) Whether the public health and safety is endangered,
“(5) Whether the sound source predates the receiver(s), and
“(6) Whether compliance with the standard(s) from which the variance is sought would produce hardship without equal or greater benefit to the public.”
We need not decide whether that ordinance is constitutional.