specially concurring.
I agree with the outcome reached by the majority, but I cannot join in the majority’s analysis. I write separately to express my concerns regarding a number of issues presented by this case that the majority fails to address, much less resolve.
The majority analyzes this case under the “framework” announced by this court in State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den_US_, 113 S Ct 2967, 125 L Ed 2d 666 (1993). In Plowman, this court recast the principles stated in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), into a methodology that seeks to categorize a law into one of three types: (1) laws directed at speech per se; (2) laws directed at speech-caused harm, i.e., laws prohibiting speech that actually causes forbidden effects; and (3) laws directed at harm per se, i.e., laws that do not refer to speech at all.* 1 State v. Plowman, supra, 314 Or at 164.
The majority concludes that the Eugene ordinances at issue in this case are in the third Plowman category — laws directed at harm without referring to expression at all — and *493finds the ordinances unconstitutional as applied to defendant’s distribution of joke books. In engaging in its analysis, the majority assumes, arguendo, that no part of the sales transaction regulated by the Eugene ordinances is protected expression under Article I, section 8, of the Oregon Constitution. I find this assumption unwarranted.
At the time relevant to this appeal, Eugene Code section 4.860 provided in part:
“Unless otherwise authorized in this code, no person shall:
“(d) Set up or operate a vehicle, stand or place for the display or sale of merchandise, or sell, vend, or display for sale an article in the streets or on the sidewalks or in doorways or stairways of business houses, or in any other place where such activity causes congregation and congestion of people or vehicles on the streets or sidewalks.”
Eugene Code section 3.336 provided:
“Sidewalk Vending - License Required. No person shall sell any goods or services within the corporate limits of the city except as provided by this code. As used in sections 3.336 to 3.342, ‘sell,’ or ‘offer for sale,’ includes but is not limited to the solicitation, exchange, transfer or delivery of goods or services.” (Emphasis added.)
Although the Eugene ordinances by their terms restrict expression by specifically including “solicitation” as a proscribed activity, the majority assumes that the ordinances do not restrain expression. That assumption flies in the face of the express text of the ordinances and leads the majority to employ an analysis that will create confusion regarding this court’s Article I, section 8, jurisprudence.
When a law is sought to be enforced against a person engaged in expressive activity, he or she may challenge the constitutionality of the government’s action under Article I, section 8, in at least two ways. First, the individual may challenge the facial validity of the law. State v. Spencer, 289 Or 225, 228, 611 P2d 1147 (1980). Second, even if the law is facially valid, the individual may challenge the application of the law to his or her expressive activity in the particular case. Id. This court’s analysis under State v. Plowman, supra, 314 *494Or at 164, addresses only the first type of challenge — challenges to the facial validity of a law.
A facial challenge to the constitutionality of a law under Article I, section 8, is a claim that the law, as written, is “invalid in toto.” In re Fadeley, 310 Or 548, 577 n 7, 802 P2d 31 (1990) (Unis, J., concurring in part, dissenting in part). Under State v. Plowman, supra, 314 Or at 164, if the challenged law by its terms focuses on restricting speech, the law is unconstitutional unless it falls within a historical exception.2 A law that by its terms focuses on harm, but expressly proscribes speech as a means of causing that harm, is constitutional under Article I, section 8, unless it is incurably overbroad. A law that by its terms does not refer to expression at all is facially valid under Article I, section 8. A key to this analysis, therefore, is what the law by its terms proscribes.
In this case, the majority does not analyze what the terms of the Eugene ordinances proscribe. Rather, the majority assumes that the ordinances do not by their terms restrict expression. Given that assumption, it is a foregone conclusion that the ordinance will be classified in the third Plowman category. By assuming that the ordinances do not regulate expression, the majority assumes that they are facially valid under Article I, section 8.
Despite assuming that the ordinances are facially valid, the majority attempts to classify the Eugene ordinances under Plowman because “the ordinances have the effect of limiting the sale of expressive material such as defendant’s books.” 318 Or at 488 (emphasis added). The “effect” of alaw in a particular case is not a consideration in determining the facial validity of a law under this court’s Article I, section 8, analysis:
*495“[Article I, section 8,] is a prohibition on the legislative branch. It prohibits the legislature from enacting laws restraining the free expression of opinion or restricting the right to speak freely on any subject. If a law concerning free speech on its face violates this prohibition, it is unconstitutional; it is not necessary to consider what the conduct is in the individual case.” State v. Spencer, supra, 289 Or at 228 (emphasis added).
Thus, it is the terms of the law that are considered in a facial challenge, not the “effect” that the application of the law might have in a particular case. Under Article I, section 8, a law might be unconstitutionally applied to the facts of a particular case, but a law that does not on its face restrict expression is not facially unconstitutional because of the “effect” the law has in a particular case.
Having assumed that the ordinances are constitutional on their face, the majority proceeds to find that the ordinances were not constitutional “as applied” in this case. The majority fails to state what analysis it applies in reaching its conclusion, although it appears that the majority has stated an “impermissible burden” test. The majority does not specify the contours of this test, but it appears to involve an examination of whether there is a “rational basis” for the ordinance.
The majority also fails to apply its “impermissible burden” test to this case. The majority provides no discussion of the facts of this case, which are essential to an as-applied challenge, but rather speaks in abstract terms about the nature of the ordinances in question. In an as-applied challenge, the question is whether the law may be constitutionally applied to the defendant’s actual expression on the facts of the case. How the law restricts the activity of other persons in other factual situations is irrelevant. Such an inquiry is relevant to an overbreadth analysis, not an as-applied analysis.3 Thus, the fact that under the Eugene ordinances persons selling balloons are treated differently from persons *496selling books should have no bearing on an as-applied analysis.
In my view, the valid application of a facially valid law to constitutionally protected activity requires a demonstration that the specified harm was a highly likely effect of the protected activity. See City of Portland v. Tidyman, 306 Or 174, 188, 759 P2d 242 (1988) (stating principle); In re Lasswell, 296 Or 121, 673 P2d 855 (1983) (disciplinary rule could not be applied because the expressive activity involved did not create a “highly likely risk” that it would cause proscribed harm). In applying this analysis, the court must examine the facts of the particular case to assess whether the defendant’s protected activity in fact created a highly likely risk that the specified harm was present or imminent.
Not only does the majority opinion create confusion, but it also avoids an important question raised by this case. The majority seems to suggest that any regulation on commercial activity might implicate Article I, section 8. 318 Or at 485. If the majority is holding that any regulation of commercial activity is a restriction on free expression, I disagree. The mere fact that a law regulates or proscribes selling does not cause that law on its face to restrain the free expression of opinion or the right to speak, write, or print freely on any subject whatever. Certainly, laws directed at commercial speech on their face restrict free expression, but many other laws are regulations of commercial activity, not speech. In City of Portland v. Tidyman, supra, 306 Or at 182, this court stated:
‘ ‘ [T]he city could regulate the location of a business that sells other merchandise, ‘adult’ or otherwise, even if it purveys communicative materials, as long as selling such other merchandise is not permitted at the location. A grocery store gains no privilege against a zoning regulation by selling The *497National Enquirer and Globe at its check-out counter. * * * Even structures unquestionably devoted to constitutionally privileged purposes such as religion or free expression are not immune from regulations imposed for reasons other than the substance of their particular message. Many regulations are not impermissible laws ‘restricting the right to speak, write, or print freely on any subject whatever,’ although they can be impermissibly applied in individual cases.”
This quoted passage implies that a regulation that is directed at commercial activity, rather than speech, is not necessarily a law that on its face restrains the free expression of opinion.
The analytical difficulty that results from the application of the categorical framework of State v. Plowman, supra, to this case leads me to question whether that framework is appropriate for resolving the issues involved in this case. The Eugene ordinances in question do not prohibit outright any activity. Instead, they regulate the location and manner of certain activity. The categorical framework set out in State v. Plowman, supra, developed in the context of cases involving outright prohibitions of certain activities. See, e.g., State v. Henry, 302 Or 510, 732 P2d 9 (1987) (law prohibiting “disseminating obscene material”); State v. Moyle, 299 Or 691, 705 P2d 740 (1985) (law prohibiting “harassment”); State v. Robertson, supra (law prohibiting “coercion”). In my view, a different analysis applies to regulations of activity, as opposed to prohibitions of such activity. Regulations of the location, time, or manner of activity are qualitatively different than outright prohibitions on activity, and they should be analyzed differently. Indeed, this court has recognized a distinction between laws that prohibit activity and laws that regulate the location, time, manner, intensity, or invasive effect of activity. In City of Hillsboro v. Purcell, 306 Or 547, 554, 761 P2d 510 (1988), this court stated:
“The relevant distinction is between outright prohibitions — either civil or criminal — on the one hand, and regulations that do not foreclose expression entirely but regulate when, where and how it can occur.”
See also Moser v. Frohnmayer, 315 Or 372, 383-84, 845 P2d 1284 (1993) (Graber, J., concurring in part, specially concurring in part) (analyzing statute as a “selective manner restriction”). In this case, the majority recognizes that there is a *498question whether the Plowman categorical framework should apply:
“The question thus becomes whether the prohibition in [the relevant provisions of the Eugene Code] fits within the [Plowman] framework and, if so, where.” 318 Or at 488.
The majority never answers the question of whether the Plowman framework applies, however, but merely proceeds to analyze this case under Plowman.
In my view, the principles articulated by this court in City of Portland v. Tidyman, supra, and City of Hillsboro v. Purcell, supra, provide the basis for resolving the issues presented in this case, rather than the categorical framework set forth in State v. Plowman, supra 4
It is not necessary to set forth a complete analysis of location, time, and manner regulations under Article I, section 8, to decide this case, however, because this case, in my view, is controlled by City of Hillsboro v. Purcell, supra. In Purcell, this court applied an overbreadth analysis to a city ordinance that regulated the location and manner of solicitation. Similarly, the Eugene ordinances in this case expressly regulate the location and manner of “solicitation.” Thus, I would analyze the Eugene ordinances for overbreadth.
With four limited exceptions, the Eugene ordinances forbid all solicitation on the sidewalk for any purpose at any time. The ordinances are broad enough to preclude any person from soliciting financial support on the public sidewalks for any purpose through the sale of merchandise. Because the ordinances are not limited to the consequences they seek to regulate, they are overbroad. City of Hillsboro v. Purcell, supra, 306 Or at 556.
An overbroad law may nevertheless be facially constitutional under Article I, section 8, if the court can give the *499law a narrow construction that limits the reach of the law to the constitutional confines intended by lawmakers. See, e.g., State v. Moyle, supra, 299 Or at 702-05 (applying narrowing construction of harassment statute). In this case, however, I am unable to discern the intended boundaries of the Eugene ordinances. I would hold the Eugene ordinances to be facially unconstitutional because they are incurably overbroad. See City of Hillsboro v. Purcell, supra, 306 Or at 556 (court unable to provide narrowing construction of ordinance prohibiting door-to-door solicitation).
Furthermore, even if I were to indulge the majority’s assumption that the ordinances are facially constitutional, I would hold that defendant could not be prosecuted for his distribution of joke books because the city has not demonstrated that defendant’s expressive activity, at the place and time that the citations were issued, in fact created a “highly likely” risk that the harms the city’s licensing scheme was designed to address were present or imminent.
Fadeley, J., joins in this specially concurring opinion.
While I have no fundamental disagreement with the categorical approach of State v. Plowman, 314 Or 157, 838 P2d 558 (1992), cert den_US_, 113 S Ct 2967, 125 L Ed 2d 666 (1993), that approach does appear to have certain limitations. An alternate method of analysis applying the principles stated in State v. Robertson, 293 Or 402, 649 P2d 569 (1982), that leads to the same conclusions was set forth in In re Fadeley, 310 Or 548, 574-78, 802 P2d 31 (1990) (Unis, J., concurring in part, dissenting in part) (cited in Moser v. Frohnmayer, 315 Or 372, 375 n 1, 379, 380, 845 P2d 1284 (1993)). In my view, that method of analysis to determine whether an enactment is constitutional under Article I, section 8, of the Oregon Constitution is more complete than the analysis in State v. Plowman, supra. Nevertheless, since the majority has decided this case under the categorical approach of Plowman, I will confine my discussion to the application of that approach.
This historical exception applies to laws where
“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 then or in 1859 demonstrably were not intended to reach.” State v. Robertson, supra n 1, 293 Or at 412.
In addition, an infringement on otherwise constitutionally protected speech may be constitutional under Article I, section 8, if the restriction can be justified under the historically-based “incompatibility exception.” In re Schenck, 318 Or 402, 455-57, 870 P2d 185 (1994) (Unis, J., specially concurring in part, dissenting in part); In re Fadeley, 310 Or 548, 577, 802 P2d 31 (1990) (Unis, J. concurring in part, dissenting in part); In re Lasswell, 296 Or 121, 125, 673 P2d 855 (1983).
Although overbreadth challenges and as-applied challenges are analytically similar, they are distinct. See State v. Robertson, supra n 1, 293 Or at 437-38 (recognizing analytical distinction between overbreadth analysis and case-by-case adjudication of constitutionality). Both types of constitutional challenges test the relationship between a governmental action and a valid legislative goal (i.e., proscribing an actual identifiable effect or harm rather than the communication itself). The question in an overbreadth challenge is whether the legislation restricts free *496expression rights more than is necessary to achieve the concededly valid goal. See id. at 410 (stating that a claim of overbreadth asserts that “the terms of a law exceed constitutional boundaries, purporting to reach conduct protected by guarantees [in the constitution!”). By contrast, the question in an as-applied challenge is whether the application of the legislation “restrains” or “restricts” Article I, section 8, rights because that application does not in fact further the legislative goal in enacting the law. See id. at 417 (stating that an as-applied challenge asserts that “the statute could not be constitutionally applied to Tthe defendant’s] particular words or expression, not that [the law! was drawn or enacted contrary to Article I, section 8”).
This court’s opinions in City of Portland v. Tidyman, 306 Or 174, 759 P2d 242 (1988), and City of Hillsboro v. Purcell, 306 Or 547, 761 P2d 510 (1988), state many important principles regarding the Article I, section 8, implications of the regulation of the location, time, and manner of activity. Those cases left unanswered many questions regarding the proper analysis in this area, however. The majority has missed the present opportunity to expand on the principles stated by this court in Tidyman and Purcell and to further develop an analysis of time, location, and manner regulations under Article I, section 8.1 am hopeful that when this court is presented with another opportunity to develop this area of law, it will do so.