dissenting.
Were we writing on a clean slate, I would agree that the state has the authority to limit what an individual may select for the identifying characters of a custom license plate. A license plate is, after all, at least in part, state “speech,” and it makes no sense to me that, merely because it is also to some extent the individual’s speech, the state’s authority suddenly becomes irrelevant. In my view, just as the state cannot force an unwilling individual to be associated with a particular message, neither should the individual be able to force the state to be associated with a particular message.
The problem is that we do not write on a clean slate. It must be acknowledged that the foregoing cannot be reconciled with the doctrine of State v. Robertson, 293 Or 402, 649 P2d 569 (1982), and its progeny, which provides that, unless a law directed at the content of an individual’s speech is wholly contained within a historical exception, it is unconstitutional. There can be no question but that the state is regulating the communicative content of the requested license plate. Likewise, there can be no question but that the regulation of license plates does not fall within a historical exception. The answer, ineluctably, is that the state cannot regulate the content of custom license plates.
A majority of this court attempts to have its proverbial cake and eat it, by offering various ways of avoiding what *564the Robertson analysis seems so plainly to require. I find none of those avoidance rationales to be persuasive.
In the lead opinion, Judge Armstrong argues that Robertson simply does not apply. The lead opinion cites no authority for that remarkable assertion that Robertson does not apply to a state regulation of the content of an individual’s speech. It simply declares that, although the regulation of the content of custom license plates is the regulation of an individual’s speech, the concomitant state interest in the subject allows us to treat the regulation as if it did not regulate the content of an individual’s speech.
In my view, what is clearly a regulation of an individual’s speech does not become something else merely because of the state’s interest. Regardless of whether the state’s interest is legitimate, the individual’s speech remains what it is. And under Robertson, the state’s regulation of that speech is unconstitutional unless wholly contained within a historical exception.
In a concurring opinion, Judge Edmonds similarly concludes that Robertson does not apply, because, at the precise temporal point of state regulation, the license plate reflects only state speech. In my view, his reasoning fails to recognize that the practical effect remains the state regulation of individual speech, to which Robertson applies.
Finally, in another concurring opinion, Judge Wollheim argues that Robertson does apply, but the state’s regulation nevertheless is authorized under the “incompatibility exception.” I agree with the lead opinion that what Judge Wollheim proposes is an unprecedented extension of the exception.
Perhaps more plainly stated, what each of the other opinions in this case proposes is a significant rewriting of Robertson. That is a fairly ambitious move for this court, one that I would have thought more properly rested with the judgment of the Supreme Court. To be sure, I have no objection to suggesting to that court a particular approach, one that might require some modification of current law. But it strikes me as another thing altogether simply to assume the task of rewriting Oregon constitutional law ourselves.
*565I respectfully dissent.
Haselton, J., joins in this dissent.