concurring.
I agree with the lead opinion’s result, but not with all of the statements in its opinion. The lead opinion concludes that the information that is displayed on state license plates on vehicles that are being driven on state highways is communication by the state rather than communication by motorists, or is a combination of communication by the state and the motorists. In my view, the breadth of that conclusion ignores the reality of the underlying facts.
There are three stages of expression involved when a motorist makes an application for a personalized license plate. First, the applicant requests that DMV adopt the applicant’s proposed language on the license plate that will be issued to the applicant. That expression is only the applicant’s. Second, DMV issues the license plate and delivers it to the applicant. Whether the license contains the proposed language of the applicant or not, it is only the expression of the agency until the expression is adopted by the applicant by the placement of the plate on the vehicle. Third, by placing the license on his vehicle, the applicant makes it part of his own expression. At the third stage, there is truly a combined expression by the state and the applicant.
The restraint on expression arising out of the application of the rule occurs when DMV refuses, pursuant to the *555rule, to adopt the expression of the motorist contained in the application for the personalized license plate. At that point, the state is only concerned with a restraint on its own expression: whether it will adopt the applicant’s proposed expression as its own. The state is free to prescribe the content of its own communications on license plates. Once the license is issued, then the motorist must decide whether to adopt it as his own expression. If the state has issued the plate with the proposed language, then the motorist is free to use the state’s expression and combine it with his. If the state has not accepted his proposal, the motorist is at liberty to adopt the state’s communication of numerals and letters as his own in exchange for the privilege of driving on the public highways of the state, or he may eschew the privilege, believing that the state’s restriction on its own communication is offensive. In either instance, his right to express his message is not infringed. He may still display his expression on his vehicle. The only impediment arising from the rule is that he may not compel the state to combine his expression with its expression on the license plate. Thus, a motorist’s freedom of expression would be violated only if the constitutions vested motorists with the unfettered right to have official state of Oregon license plates express content of their own choosing. Of course, such rights do not exist under any statute or the constitutions.
Brewer, J., joins in this concurrence.