specially concurring in part, dissenting in part.
I agree with the court’s holdings that Judge Schenck (the Judge) violated Canons 2A, 3A(4), 3A(6), and 3C(1) of the Code of Judicial Conduct (Code). I do not, however, concur in several aspects of the court’s analysis in reaching those holdings. I also agree with the court’s holdings that the Judge did not violate the Code in the Hopkins cases. I agree with the sanction imposed by the court. I dissent, however, with respect to the court’s holding that the Judge may be disciplined under Canon 1. I write separately to express my concerns about the court’s analysis regarding Canons 1, 2A, and 3A(6).
CANON 1
In my view, there is no plausible basis for the court’s holdings that discipline the Judge for violating Canon 1. Canon 1 provides:
“An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining and enforcing, and should observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.”
Canon 1 is not a rule of conduct under which a judge may be disciplined. Rather, Canon 1 is the basic philosophical provision of the Code, and its terms have an important bearing on all the other canons. Canon 1 performs two functions. First, Canon 1 espouses the ultimate objective of the preservation of “the integrity and independence of the judiciary,” which is “indispensable to justice in our society.” Second, Canon 1 is a guide to be used in interpreting the other canons in the Code. Thus, Canon 1 may not be used as the basis of a complaint in a judicial disciplinary proceeding.
CANON 2A
I am troubled by the court’s lack of analysis and discussion regarding the application of Canon 2A to the Judge’s conduct in this case. The court’s opinion fails to provide any guidance as to either the scope of the standard set *452forth in Canon 2A or when that canon may be used as an independent basis for disciplining a judge.
Canon 2A provides:
“A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
Canon 2A is cast in broad and general terms. By necessary implication, under Canon 2A a judge should avoid both professional and personal conduct that creates actual impropriety or the appearance of impropriety. It would be difficult, if not impossible, to list specifically all acts or conduct of a judge that may impair “public confidence in the integrity and impartiality of the judiciary.” In my view, actual impropriety under the standard set forth in Canon 2A would include violations of law, court rules or other specific prohibitory provisions of the Code. Thus, any violation of a specific prohibitory provision of the Code arguably would be a violation of Canon 2A.
It might well be subject to question, however, whether a judge may be independently disciplined under Canon 2A when his or her impropriety is found to violate a specific rule of conduct in the Code. A judge may be disciplined under Canon 2A, however, for conduct that diminishes public confidence in the judiciary that is not specifically mentioned in the Code.1
Under the court’s opinion, it is unclear whether the Judge is being disciplined independently under Canon 2A of the Code. I agree with the court’s finding that, in essence, the conduct of the Judge impaired public confidence in the integrity and impartiality of the judiciary and, therefore, violated Canon 2A. As previously stated, I agree with the sanction imposed by the court. In arriving at what I consider to be the *453appropriate sanction, however, I did not consider the Judge’s violations of Canon 2A because the Judge is being disciplined for that conduct under other specific prohibitory provisions in the Code.
CANON 3A(6)
I agree with the court’s holding that disciplines the Judge under Canon 3A(6) for his letter to the editor and guest editorial that were published in the Wallowa County Chieftain (Chieftain). Despite the Judge’s constitutional challenges, I agree with the court that the Judge may be disciplined for making those public statements. I cannot, however, join in the court’s analysis in reaching that holding.
Canon 3A(6) provides:
“A judge should abstain from public comment about pending or impending proceedings in any court and should require similar abstention on the part of court personnel subject to the judge’s direction and control. This subsection does not prohibit a judge from making public statements in the course of official duties or from explaining for public information the procedures of the court.”
Any instance of judicial discipline under Canon 3A(6) raises important questions under the free-speech guarantees of Article I, section 8, of the Oregon Constitution and the First Amendment to the federal constitution.2 With regard to Article I, section 8, this court has stated that “[unquestionably any rule that in terms directs persons not to make particular kinds of statements is difficult to square with constitutional guarantees of freedom of expression, particularly those of the Oregon Constitution.” In re Lasswell, 296 Or 121, 124, 673 P2d 855 (1983).
In In re Fadeley, 310 Or 548, 560-61, 802 P2d 31 (1990), this court held, over my dissent, id. at 591-98 (Unis, J., concurring in part, dissenting in part), that the right of a *454judge to speak, write, or print freely is subordinate to any rule of judicial conduct that has been or may be adopted by this court. Today, although the court chooses not to decide this case under that part of the Fadeley decision, the court seems to reaffirm that part of the Fadeley decision, 318 Or at 430. For the reasons stated in my separate opinion in In re Fadeley, supra, 310 Or at 591-98 (Unis, J., concurring in part, dissenting in part), I continue to believe that that holding in In re Fadeley is wrong. See also Armstrong, Free Speech Fundamentalism — Justice Linde’s Lasting Legacy, 70 OrL Rev 855, 887-88 (1991) (criticizing that aspect of the Fadeley decision).3
The court holds that “even an application of ‘traditional’ Article I, section 8, principles to this case” yields the result that “the Judge’s actions in causing the publication of the letter and the editorial posed a serious and imminent threat to the public confidence in the integrity and impartiality of the judiciary in general and of the Judge himself in particular.” 318 Or at 431. The court states:
“[T]he Judge’s actions were a direct comment on the quality of prosecution to be expected in pending and impending criminal matters that were to come before him in Wallowa County. Such wilful violations of Canon 3A(6) similarly created a serious and imminent threat to the public’s confidence in the integrity and impartiality of the judiciary — the value that the Canons manifestly are intended to protect. Under In re Lasswell, supra, imposition of a sanction on an elected public official in such circumstances does not violate that person’s rights under Article I, section 8, of the Oregon Constitution. We now hold in this case that the imposition of discipline under Canons 1, 2A and 3A(6) does not violate Article I, section 8, of the Oregon Constitution.” 318 Or at 431.
The court apparently finds Canon 3A(6) constitutional by “balancing” the “regulatory interest and the individual’s *455interest” in free expression. 318 Or at 430. The court misreads Lasswell and misunderstands the historically-based “incompatibility exception.”
The Lasswell decision
“did not involve a contemporary ‘balance’ between competing constitutional rights, and was not based on a determination that the restriction imposed a ‘minimal’ burden on the district attorney’s right to speak. Instead, it involved a historically based exception for restrictions on expression by public employees to the extent the expression is incompatible with their public function.
t i ^
“Under [State v. Robertson, 293 Or 402, 649 P2d 569 (1982)], the validity of these restrictions does not turn on whether the right of the employees to free expression is outweighed by the public interest served by the restrictions. That is, it does not turn on whether an appropriate balance has been struck between these ‘competing’ interests. It turns, instead, on whether the restrictions are based on a historically recognized exception for public employees that it is incompatible with their public function, and on whether the restrictions are wholly confined within this exception.” Armstrong, supra, 70 Or L Rev at 890-91 (footnotes omitted).
As I explained in In re Fadeley, supra, 310 Or at 582 (Unis, J., concurring in part, dissenting in part):
“The incompatibility between the particular privileged speech and the performance of one’s special role or function need not be spelled out in the text of the enactment, but it must be shown by the government to be a ‘highly likely’ effect. Incompatibility, which is always related to state action, is assessed at the time the individual chooses what to speak or write. It is not simply assumed at the time of the enactment of the governmental provision. Incompatibility cannot, in other words, be legislated in the abstract or by a generalized finding; it must be shown to be a ‘highly likely’ effect in a concrete case. ‘Our cases under Article I, section 8, preclude using apprehension of unproven effects as a cover for suppression of undesired expression * * *.’ City of Portland v. Tidyman, [306 Or 174, 188, 759 P2d 242 (1988)]. A mere likelihood of incompatibility will not, therefore, suffice.” (Emphasis in original; some citations omitted.)
*456In In re Lasswell, supra, this court articulated the “incompatibility exception” under Article I, section 8. In Lasswell, this court recognized that speech that could not constitutionally be prohibited outright may nevertheless, under narrowly-defined circumstances, be found incompatible with the performance of one’s special role or function. In Lasswell, this court held that a lawyer disciplinary rule could constitutionally restrict prosecutors from commenting publicly on pending cases with which they are associated if the rule was narrowly limited to actual incompatibility between the speech and the prosecutor’s official function, including his responsibility to preserve the person’s right to a fair trial by an impartial jury.
Article I, section 8, of the Oregon Constitution would preclude the enactment of an outright prohibition against public comment by persons generally or against publication by those to whom such comment is made. See In re Lasswell, supra, 296 Or at 124 (citing cases). Canon 3A(6) is, however, directed at judges, not at persons generally. The point of Canon 3A(6) is not restraint of free expression by judges because they are judges. In my view, a canon that requires a person who becomes a judge to surrender all speech rights guaranteed by Article I, section 8, of the Oregon Constitution could not survive a challenge under that constitutional provision. In re Fadeley, supra, 310 Or at 590 (Unis, J., concurring in part, dissenting in part). See In re Richmond, 285 Or 469, 474-75, 591 P2d 728 (1979) (same principle stated for lawyers). Rather, Canon 3A(6) addresses the incompatibility between a judge’s official function, including his or her responsibility to promote public confidence in the impartiality and integrity of the judiciary, and speech that, although privileged against other professional sanctions, vitiates the proper performance of that function under the circumstances of the specific case. In short, a judge is not denied freedom of expression or freedom to speak, write, or publish; but when a judge exercises official responsibility in the performance of the judicial office, he or she also undertakes the professional responsibility to act in a manner compatible with the judicial office in what he or she says or writes.
Canon 3A(6) survives the Judge’s constitutional challenge if it is narrowly construed so as to limit its coverage, *457in the words of Article I, section 8, to a judge’s “abuse” of the right “to speak, write, or print freely on any subject whatever.” In re Lasswell, supra. Thus, the Judge may be disciplined under Canon 3A(6) only if a “highly likely” effect of the Judge’s public statements was actual harm to public confidence in the impartiality and integrity of the judiciary.
I am satisfied by clear and convincing evidence that some of the Judge’s statements that were published in the Chieftain, viewed in context, were statements about pending or impending cases and that actual harm to public confidence in the impartiality and integrity of the judiciary was a “highly likely” effect of those statements.
I agree with the court’s holding regarding the Judge’s arguments under the First and Fourteenth Amendments, although my analysis of those issues would be somewhat different. See Shockey v. City of Portland, 313 Or 414, 435-41, 837 P2d 505 (1992) (Unis, J., concurring in part, dissenting in part) (setting forth analytical framework for determining whether public employee speech is constitutionally protected under the First Amendment).
I have reservations as to whether the standard expressed in Canon 2A could serve as the basis for discipline for conduct not otherwise proscribed by the Code without further interpretation of that standard. See In re Ainsworth, 289 Or 479, 493, 614 P2d 1127 (1980) (the validity of a canon, which provided that “[a] lawyer should avoid even the appearance of professional impropriety” as the basis of a complaint in a disciplinary proceeding, might well he subject to question); Megdal v. Board of Dental Examiners, 288 Or 293, 605 P2d 273 (1980) (discussing whether the term “unprofessional conduct” provides an adequate standard for basis of professional discipline). The resolution of that issue is not necessary in this case.
Article I, section 8, of the Oregon Constitution 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 whatsoever; but every person shall be responsible for the abuse of this right.”
The First Amendment to the Constitution of the United States provides in part:
“Congress shall make no law * * * abridgingthe freedom of speech, or of the press * *
I am hopeful that when all seven permanent members of this court are asked to reconsider that part of In re Fadeley, 310 Or 548, 560-61, 802 P2d 31 (1990), we will jettison it. In this case, four members of this court recused themselves from sitting on this case. Two of the five members of the court in this opinion are members of the Court of Appeals, sitting as Justices pro tempore.