concurring.
I concur with the lead opinion’s decision, but not with its analysis. The problem with its analysis is that it refuses to apply the methodology announced in State v. Robertson, 293 Or 402, 649 P2d 569 (1982). Because the Robertson methodology applies to any statute or regulation, this court cannot simply ignore Robertson because it is convenient to do so. However, I would hold that the challenged regulations do not violate petitioner’s rights under Article I, section 8, of the Oregon Constitution, and, thus, I concur.1
Article I, section 8, prohibits any law “restricting the right to speak, write or print freely on any subject whatever.” *556That provision means what it says. Restrictions aimed at the content of speech itself are normally impermissible. Oregon State Police Assn. v. State of Oregon, 308 Or 531, 783 P2d 7 (1989), cert den 498 US 810 (1990). “The nature of the prohibition, either civil or criminal, is immaterial to the first sentence of Article I, section 8, which directs that ‘no law’ shall restrict or restrain speech, writing and printing.” City of Hillsboro v. Purcell, 306 Or 547, 553, 761 P2d 510 (1988).
There is no dispute that the rules in question facially concern expression and thus implicate Article I, section 8. In Robertson, the Supreme Court established a framework for evaluating whether a law violates Article I, section 8. Its analysis distilled Oregon laws implicating expression into three types:
“The first Robertson category consists of laws that focus on the content of speech or writing or are written in terms directed to the substance of any opinion or any subject of communication. Laws within that category violate 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. The second Robertson category consists of laws that focus on forbidden effects, but expressly prohibit expression used to achieve those effects. Laws in that category are analyzed for over-breadth. Finally, the third Robertson category consists of laws that focus on forbidden effects, but without referring to expression at all. Laws within the third category are analyzed to determine whether they violate Article I, section 8, as applied.” City of Eugene v. Miller, 318 Or 480, 488, 871 P2d 454 (1994) (internal quotes and brackets omitted; citations omitted; emphasis in original).
The Robertson framework assumes that all statutes regulating speech fall into one of only three possible categories. This court has previously noted that some applications may appear awkward in certain cases, particularly where licensing or regulatory schemes are involved. Oregon State Bar v. Smith, 149 Or App 171, 942 P2d 793 (1997). Nevertheless, I acknowledge that the Robertson methodology “purports to describe the applicable universe.” Id. at 184. Here we must ascertain in what analytical category DMV’s custom license *557plate rules belong and how they are impacted by this state’s jurisprudence of free expression.
Robertson’s second category is not implicated because neither the text nor context of the rules reveals a focus on proscribable harms regulated through incidental, albeit express, restraints on expression.2 And because OAR 735-046-0010(7) (1995) proscribed the use of specific words, the rule does not fit into the third Robertson category. The only possible conclusion is that the rules before us proscribe “words” without reference, implied or otherwise, to specific harmful effects. Thus, the DMV rules focus on the content of the written communication. Robertson, 293 Or at 412. The Supreme Court has repeatedly held that, while certain harmful effects of speech may be forbidden, restrictions aimed at the content of speech and not its resulting harm are normally impermissible. In re Fadeley, 310 Or 548, 559, 802 P2d 31 (1990). At the same time, however, the court has stated that the sweep of Article I, section 8, is not absolute; exceptions exist. Id.
*558The first Robertson exception is for “historical” limitations on speech. This exception recognizes content-based restraints on expression that were already established when the Bill of Rights was adopted and to which neither the guarantees of that document nor those of the Oregon Constitution of 1859 was intended to reach. Robertson, 293 Or at 412. As petitioner correctly notes, the elements around which DMV rules revolve — license plates, automobiles, etc. — are part of a forum too contemporary to allow the regulations that control them to find sanctuary as a historical exception.
A second exception is the “incompatibility exception” articulated in In re Lasswell, 296 Or 121, 125-26, 673 P2d 855 (1983). That exception acknowledges that some limitations on speech are valid when a speaker’s message is incompatible with the speaker’s public function. Id. The issue in Lasswell stemmed from statements that a district attorney had made in newspaper and television interviews regarding facts behind a major drug investigation and the arrests that followed it. Id. at 123. As a result of his statements, the district attorney was charged by the Oregon State Bar (the Bar) with violating DR 7-107(B), a disciplinary rule that forbade prosecutors from making certain extra-judicial comments in public regarding the prosecution or defense of a criminal matter prior to trial. Id. On appeal, the district attorney raised an Article I, section 8, challenge to the rule, arguing that as interpreted by the Bar, the rule violated his right to free speech. In upholding the rule’s constitutionality, the Supreme Court found that DR 7-107(B) was not an outright prohibition on discussion generally, but was, rather, an enactment that focused on the incompatibility between an “official function” and speech that, though privileged, nevertheless vitiated the proper performance of that function. Id. at 125. In effect, the court “recognized that there are some activities that lawmakers could not forbid citizens generally from doing, but that they may declare to be incompatible with the role and work of a public official.” Meltebeke v. Bureau of Labor and Industries, 322 Or 132, 156 n 4, 903 P2d 351 (1995)'(Unis, J., specially concurring) (emphasis added).
The paradigm of that exception has, up until now, concerned expression by an individual working in an official public capacity, e.g., elected officials, public employees, and *559state licensed professionals, that was incompatible with the individual’s official role in the public forum 3 The gravamen of the exception, however, was the character of the speech as official public speech, not necessarily that the speaker was an individual working in an official public role. For example, the speech at issue in Lasswell carried both private and public expressive content, like the situation here. Both types of comments were made by one individual. However, because the district attorney spoke as part of his official public role, the speech was considered to represent that official public role. Thus, Article I, section 8, tolerated the Bar’s curtailment of the district attorney’s incompatible private expression because the overriding nature of the speech pertained to an official public role. Here, the distinctions are that the speech contained in the license plate is made by an agency and an individual, and that the license plate expresses the agency’s official public identification of the vehicle and a private individual’s message. However, those distinctions are without a difference where the principle of the exception rests on the overriding nature of the speech as pertaining to an official public role. I believe that the incompatibility exception is applicable where license plates are partially speech pertaining to the official public role of DMV.
The entire process of assigning automobile license plates is undoubtedly an official function of the state. The very content of a license plate operates to officially identify a vehicle. The legislature has mandated that “the Department of Transportation shall select registration plates it issues.” ORS 803.535 (emphasis added). As components of this selection process, the legislature has made the department responsible for determining the size, form, arrangement and material of the plates. ORS 803.535(1). It has also required that if plates are issued, the department is responsible for *560providing the means of vehicle identification by way of characters on the plates. ORS 803.535(l)(b). Those statutes underscore the fact that ultimately, the burden of who gets what license plate falls on the state. Under ORS 805.240, the Department of Transportation is authorized to issue customized registration plates on request, but only if the plates meet the requirements of ORS 803.535. I assume that that includes the requirements mentioned above, placing the onus of plate selection squarely on the department. The menu of choices available to the general public for custom plates may be large or it may be small, but ultimately, for the state to comply with ORS 803.535, it must stamp that choice with its imprimatur of approval.4
OAR 735-046-0010 (1995) merely prohibits messages that are incompatible with an official state function. The context of the rule reveals an intent to spare the public from expression that a reasonable person could find objectionable. See OAR 735-046-0010(8) (1995) (In determining whether a plate choice is prohibited under the rule, “[t]he plate choice shall be considered to be the most objectionable denotation or connotation that reasonably may be ascribed to it.”) Obviously, that type of communication is not the sort that lawmakers could generally forbid citizens in this state to engage in. It is, however, the kind of communication that could be declared incompatible with an official role and that lawmakers could, therefore, generally prohibit the state from engaging in.
In In re Fadeley, the Supreme Court articulated the test for determining incompatibility. The court first noted that in making such a determination, the interests juxtaposed against Article I, section 8, expression need not be constitutional in magnitude in order for the expression in question to be incompatible with an official function. 310 Or at 564. Rather, the court declared that the question that must be asked is whether the offsetting societal interest — to which *561we would subjugate the right to speak freely in that narrow circumstance — is of the same degree of fundamental importance as concerns expressed in the constitution. In In re Fadeley, the court found that the appearance of judicial integrity was important enough to trump a Supreme Court justice’s right to make direct requests for contributions to his re-election campaign. Id.
Here, the manner in which state government may be perceived by those it serves is once again implicitly at issue. DMV’s only fault here has been to anticipate as much and respond by attempting to be as inoffensive as possible. Article I, section 1, provides that “all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness.” (Emphasis added.) In a small but important way, the state has acknowledged that authority by placing a bar on its own mouth. It has determined that in serving the people of Oregon, DMV will, to the best of its ability, refrain from issuing license plate messages that reasonable women and men could find objectionable. By discharging that official function with concern for the sensibilities of the public, DMV does not act as an arbiter of public discourse.
I also note that DMV’s role in selecting and assigning license plates is part of Oregon’s Vehicle Code, ORS chapters 801 to 826. The policy of that code includes providing for the “maximum safety for all persons who travel or otherwise use the public highways of this state.” ORS 801.020(ll)(a). To that end, the state has developed rules of the road that prohibit, for example, the operation of a vehicle by a person while that person is under the influence of intoxicants. In this instance, if the court requires the state to issue these license plates, the state could appear to condone conduct — driving under the influence of intoxicants (DUII) — which it otherwise clearly prohibits. Such an order would be incompatible with DMV’s official state function to promote traffic safety.
It is easy to conceive of another situation where limiting DMV’s role in approving license plate requests would lead to an inconsistent approach to promoting traffic safety. For example, I can envision a derogatory racial, ethnic, national origin, or gender message on a license plate that *562would enrage another person and cause that person to drive in a dangerous fashion — perhaps speeding to catch up to that vehicle or following too closely behind it — to communicate that person’s displeasure to the driver of the vehicle. Following too closely behind another car and driving over the speed limit are prohibited under the vehicle code, as are many other actions that an enraged driver might commit. By allowing DMV to prohibit offensive content on state-issued vehicle license plates, the court allows DMV to eliminate some conditions that might incite enraged and dangerous driving and lessen traffic safety. Requiring DMV and, in effect, the state itself to utter offensive speech through the form of state issued license plates would be incompatible with the state’s function of promoting safe driving.
Obviously, I believe that the incompatibility analysis is appropriate in this setting. I must, however, acknowledge that to date the exception so far has been applied only where a single individual acting in the public sector formulates the content of the speech. Here, in this situation, the actual content of the speech is formed by a state agency and a private individual. The conclusion that the focus of the exception turns more on the essential nature of the speech rather than on the utterer of the speech is frankly an issue of first impression for this state. However, a decision to apply the incompatibility exception in this instance would not be formed in a vacuum. Federal case law provides an instructive template that is helpful in light of the paucity of Oregon law directly on point. The United States Supreme Court has recognized that “when the State is the speaker, it may make content-based choices.” Rosenberger v. Rector and Visitors of Univ. of Va., 515 US 819, 833, 115 S Ct 2510, 2518, 132 L Ed 2d 700 (1995). That notion is derived, in part, from an earlier decision by the Court in which it concluded that “when the Government appropriates public funds to establish a program it is entitled to define the limits of that program.” Rust v. Sullivan, 500 US 173, 194, 111 S Ct 759, 114 L Ed 2d 233 (1991). In this case, the essence of the speech fulfills one of DMVs official public roles — identifying vehicles. DMV has, in turn, established legitimate limits in accomplishing that goal.5 Employing the incompatibility exception, as I suggest *563here, would allow the court to acknowledge that self-limiting aspect of governance while remaining true to this state’s jurisprudence of free expression. The ALJ did not err in finding that DMV rules did not violate Article I, section 8.
Accordingly, I concur with the lead opinion’s decision to affirm.
I also concur with the lead opinion’s First Amendment analysis.
In State v. Stoneman, 323 Or 536, 920 P2d 535 (1996), the Supreme Court wrote:
“If the enactment’s restraint on speech or communication lies outside an historical exception, then a further inquiry is made — whether the actual focus of the enactment is on an effect or harm that may be proscribed, rather than on the substance of the communication itself. If the actual focus of the enactment is on such a harm, the legislation may survive scrutiny under Article I, section 8.” Id. at 543 (emphasis in original).
The court went on to note that such a focus could be communicated either expressly within the text of a statute in terms of the harmful effects to be countered or implied through a statute’s context. Id. at 544-45. In this case, the text of the 1995 administrative rules do not specifically describe the prohibited license plate choices in terms of harmful effects. A contextual analysis allows me to infer only that the prohibition against certain words on license plates is meant to spare the public from that which a reasonable person could find objectionable. See OAR 735-046-0010(8) (1995) (In determining whether a plate choice is prohibited under the rule, ‘Ttlhe plate choice shall be considered to be the most objectionable denotation or connotation that reasonably may be ascribed to it.”) (emphasis added). As Stone-man states, however, the harm or effect at issue must be one that “may be proscribed” in the first place. Given the premium that our state constitution places on freedom of expression, the fact that some communication may be deemed “objectionable” is not an effect warranting state efforts to scour it from the discourse of the general public. That same communication, however, when it emanates from a state speaker, may be incompatible with an official office or function and therefore receives less deferential treatment, as I shall discuss shortly.
See, e.g., In re conduct of Schenck, 318 Or 402, 870 P2d 185 (1994) (circuit court judge); In re Fadeley, 310 Or 548, 802 P2d 31 (1990) (state Supreme Court justice); Oregon State Police Officers Assn. v. State of Oregon, 308 Or 531, 783 P2d 7 (1989) (state police officers); Cooper v. Eugene School Dist. No.4J, 301 Or 358, 723 P2d 298 (1986) (public school teacher); In re Lasswell, 296 Or 121, 673 P2d 855 (1983) (district attorney); Miller v. Board of Nursing, 115 Or App 84, 836 P2d 749, rev den 314 Or 727 (1992) (state-licensed nurse); Koch v. City of Portland, 94 Or App 484, 766 P2d 405 (1988), rev den 308 Or 79 (1989) (municipal police officer).
The reason why an individual wants a vanity license plate is that the license plate bears the imprimatur of the state. Petitioner wants the state’s endorsement of his message. Petitioner could put any bumper sticker on his vehicle that he desires, including one that looked like an Oregon license plate but displayed the words WINE, VINO, or INVINO. However, such a bumper sticker would not satisfy petitioner’s desire to have the state endorse the words he chooses to display.
A government’s ability to determine the content and scope of its own speech is, of course, not without limits. As the Oregon Supreme Court has noted, *563“assuming governments may engage in some forms of speech, they are still prohibited from advocacy intended to perpetuate themselves in power.” Burt v. Blumenauer, 299 Or 55, 67, 699 P2d 168 (1985). At the federal level, the United States Supreme Court has recognized that government cannot choose to refrain from subsidizing some speech because it expresses politically dangerous ideas. Reagan v. Taxation With Representation of Wash., 461 US 540, 548, 103 S Ct 1997, 76 L Ed 2d 129 (1983). It has also stated that government cannot “invidiously discriminate” in its choice of what speech to sponsor. Cammarano v. United States, 358 US 498, 513, 79 S Ct 524, 3 L Ed 2d 462 (1959).