concurring in part and specially concurring in part.
I agree with the result that the majority reaches, but not with its reasoning.1 For that reason, I write separately.
Plaintiff argues that ORS 759.290 violates Article I, section 8, of the Oregon Constitution. Article I, section 8, provides:
“No law shall he 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 this right.”
ORS 759.290 provides in pertinent part:
“(1) No person shall use an automatic dialing and announcing device to solicit the purchase of any realty, goods or services.
“(2) Subsection (1) of this section does not apply to:
“(a) The solicitation for funds by charitable or political organizations or institutions.
“(3) ‘Automatic dialing and announcing device’ means equipment that dials programmed telephone numbers and plays a recorded message when the call is answered.”
In State v. Plowman, 314 Or 157, 163-64, 838 P2d 558 (1992), this court summarized the method of analysis under Article I, section 8:
*381“In State v. Robertson, [293 Or 402, 649 P2d 569 (1982)], this court established a framework for evaluating whether a law violates Article I, section 8. First, the court recognized a distinction between laws that focus on the content of speech or writing and laws that focus on the pursuit or accomplishment of forbidden results. 293 Or at 416-17. The court reasoned that a law of the former type, a law ‘written in terms directed to the substance of any “opinion” or any “subject” of communication,’ violates Article I, section 8,
“ ‘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.’ Id. at 412.
“Laws of the latter type, which focus on forbidden results, can be divided further into two categories. The first category focuses on forbidden effects, but expressly prohibits expression used to achieve those effects. The coercion law at issue in Robertson was of that category. Id. at 417-18. Such laws are analyzed for overbreadth:
“ ‘When the proscribed means include speech or writing, however, 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 such “overbreadth.” ’Ibid.
“The second kind of law also focuses on forbidden effects, but without referring to expression at all. Of that category, this court wrote:
“ ‘If [a] statute [is] directed only against causing the forbidden effects, a person accused of causing such effects by language or gestures would be left to assert (apart from a vagueness claim) that- the statute could not constitutionally be applied to his particular words or other expression, not that it was drawn and enacted contrary to article I, section 8.’ Id. at 417.” (Emphasis in original; footnote omitted.)
Our first task, then, is to determine whether ORS 759.290 is “written in terms directed to the substance of any ‘opinion’ or any ‘subject’ of communication.” State v. Robertson, supra, 293 Or at 412. It is here that I part company with the majority. It plainly is true that a recording or simulation of a person’s voice, conveying a message through words, is *382speech. It also is correct that Article I, section 8, protects the substance of any speech — the merchant’s as well as the mayor’s. But, ORS 759.290 is not directed to the substance of the merchant’s recorded speech in the way that our previous cases have contemplated when declaring laws to be facially invalid under the first Robertson category.
The majority does not declare ORS 759.290 to be “facially invalid” in so many words. However, the majority asserts that the statute focuses on the content of speech and then analyzes whether an historical exception saves the statute nonetheless. Under State v. Robertson, supra, that line of inquiry applies only to a statute in the first of the three enumerated categories, and it should lead to a conclusion that the law in question is facially invalid. See State v. Henry, 302 Or 510, 732 P2d 9 (1987) (applying that analysis to conclude that a statute making dissemination of obscene material a crime violates Article I, section 8). In my view, the majority’s first-category analysis is beside the point.
ORS 759.290 is a classic restriction on the means or manner of communication. Plaintiff may say whatever he wants to say to prospective customers. There is no restriction on the content of his speech. Moreover, plaintiff may deliver his message on the telephone; he may use a recorded message that begins to play when someone answers the telephone at the other end of the line; and he may deliver the message at any time. The same words, from the same person, to the same person, at the same time, and at the same place, remain. Compare State v. Henry, supra (invalidating obscenity law as directed at the substance of speech and not covered by an historical exception). The only prohibition with respect to plaintiff is against his use of a specified mechanical device, “equipment that dials programmed telephone numbers and plays a recorded message when the call is answered.” ORS 759.290(1), 759.290(3)(a) (emphasis added).
The majority decides that this “manner” restriction is transformed into a “content” restriction for only one reason: the manner restriction applies to messages that “solicit the purchase of any realty, goods or services,” ORS 759.290(1), but not to other messages. A selective manner restriction is still a manner restriction, however, and not *383something else. It may not be a valid manner restriction, but that is a different question.
The majority’s analysis is at odds with City of Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988), which clearly shows that a selective time, place, or manner restriction is not necessarily a content restriction. There, an ordinance prohibited uninvited visits to residences “for the purpose of soliciting orders for the sale of goods.” 306 Or at 550.
“Although facially valid, the ordinance focuses on one type of entry — for the purpose of selling merchandise. Selling is a form of communicative behavior that includes speech and may involve goods that are protected expression. Because speech is implicated, we must examine the ordinance for overbreadth.” Id. at 555.
This court held that the ordinance was overbroad, because it was “far more than a regulation limited to and contained by the consequences the law seeks to prevent.” Id. at 556.
Purcell demonstrates that a selective time, place, and manner restriction is not a content restriction — that is, is not facially invalid — merely because the restriction is selective. Rather, a selective time, place, and manner restriction belongs in the second of the three categories enumerated in Robertson: laws that purport to focus on effects but that expressly prohibit expression used to achieve those effects. Such a law must be analyzed for overbreadth.
In addition to departing from our precedent, the majority’s reasoning might encroach on the proper analysis in other cases. An example will demonstrate why. ORS 260.695(2) prohibits electioneering near a polling place:
“No person, within any building in which a polling place is located or within 100 feet measured radially from any entrance to the building, shall do any electioneering, including circulating any cards or hand bills, or soliciting signatures to any petition. No person shall do any electioneering by public address system located more than 100 feet from an entrance to the building but capable of being understood within 100 feet of the building. The electioneering need not relate to the election being conducted.”
*384That is a time, place, and manner restriction on speech. It also is a content-selective time, place, and manner restriction; petitioner could solicit customers for his chimney sweep business within 100 feet of a polling place, for example.
Under the majority’s analysis,- ORS 260.695(2) is directed at the substance of speech, because it restricts some subjects of communication (electioneering) but not others. In my view, however, that statute is a law focusing on a forbidden effect (disruption of voting), which expressly prohibits expression used to achieve that effect. Under State v. Robertson, supra, 293 Or at 417-18, such a law falls into the second analytical category; it is not facially invalid, but it must be scrutinized to be sure that it is not overbroad. The selective nature of the time, place, and manner restrictions in ORS 260.695(2) is simply one factor to consider in that scrutiny.2
Likewise, here, ORS 759.290 is not impermissibly directed to the substance of speech. Instead, it purports to be directed to an identifiable effect (presumably the unwanted, inconvenient, repeated, or prolonged intrusion into the privacy and quiet of the persons called by use of an automated dialing device), with an express prohibition in the statute that relates to expression.
ORS 759.290 must, but fails to, satisfy the constitutional requirements for a law of that kind. First, such a statute must, expressly or by clear implication, identify a substantial harm that the law seeks to ameliorate. See City of Portland v. Tidyman, 306 Or 174, 188-91, 759 P2d 242 (1988) (illustrating principle); Oregon State Police Assn. v. State of Oregon, 308 Or 531, 541, 783 P2d 7 (1989) (Linde, J., concurring) (stating principle), cert den, 498 US 810, 111 S Ct 44, 112 L Ed 2d 20 (1990). This law does not do so. Second, the statute must avoid overbreadth. Ibid. ORS 759.290 is over-broad, because it restricts speech directed to people who wish to receive commercial messages, as well as to people who do not; speech at convenient times of day, as well as inconvenient times of day; one-time messages, as well as repeated messages; brief automated calls as well as long ones — in short, *385speech that does not intrude unduly, as well as speech that does.
Because ORS 759.290 fails adequately to identify the harm sought to be cured and is overbroad, it violates Article I, section 8. Accordingly, I concur specially.
I agree with the majority that this case is not moot, for the reasons that the majority gives, and, thus, concur in that part of the opinion. 315 Or at 380 n 5.
I need not and do not express any opinion concerning the constitutionality of ORS 260.695(2). My point is only that it should be analyzed for overbreadth under the second category identified in State v. Robertson, supra.