concurring.
I agree with the majority that ORS 248.010 is facially unconstitutional. I write separately because the majority arrives at that conclusion on the basis of federal constitutional law without first addressing whether the challenged statute violates Article I, section 8, of the Oregon Constitution. That the majority does so is not surprising. There is *228recent case law that clearly stands for the proposition that matters of state law need not be addressed if not preserved. In my view, we should take this opportunity to reexamine that case law and reaffirm a fundamental principle of state constitutionalism, that, in all cases, before examining a question of federal constitutional law, we first must determine whether there is a violation of the state constitution. If there is a violation of state constitutional law, there is no need to address issues of federal constitutional law; indeed, there is no legal basis for addressing issues of federal constitutional law. That is precisely the situation presented by this case: ORS 248.010 violates Article I, section 8, of the state constitution. Therefore, the appropriate resolution of this case is to reach that conclusion and refrain from venturing into matters of federal constitutional jurisprudence.
I begin with the issue of whether we should address the constitutionality of the statute under Article I, section 8. That requires taking a few proverbial steps back to remember the basic premises of state and federal constitutional analysis.
That the state constitution has significance independent of its federal counterpart, of course, goes without saying in this, a vanguard jurisdiction in the “state constitutional revolution.” See, e.g., David Schuman, Advocacy of State Constitutional Law Cases: A Report from the Provinces, 2 Emerging Issues in St Const L 275, 275 (1989) (“a report from Oregon is not from some provincial and primitive venue, but — with respect to state constitutional law — from the capital of the future itself’). The question is precisely when it is appropriate to give the state constitution such independent significance. Oregon decided rather early on that it always is appropriate to consider whether there is a violation of the state constitution before addressing whether there is a violation of the federal constitution. See, e.g., Wallace P. Carson, Jr., “Last Things Last”: A Methodological Approach to Legal Argument in State Courts, 19 Will L Rev 641, 643 (1983) (“The Oregon rule is first things first.”).
The principal justification for the first-things-first approach is this: Most of the relevant provisions of the federal *229constitution do not even apply to the states except by incorporation through the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Unless an individual has been denied a remedy under the state constitution, he or she has not yet been denied due process, and the federal constitution does not apply. Said another way, if the individual may obtain a remedy under state law, there has been no denial of due process and thus no occasion for the federal constitution even to come into play. As the Oregon Supreme Court explained in Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981):
“The proper sequence is to analyze the state’s law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law.”
See also State v. Scharf, 288 Or 451, 454, 605 P2d 690 (1980) (“Before addressing such federal issues, however, a court’s responsibility is first to decide the effect of the state’s own laws, because if the state provides what defendant claims, it does not deprive her of the due process commanded by the 14th amendment.”).
Even in cases in which the parties neglected — or consciously declined — to address first the state constitution, the Oregon courts took the position that they are obligated to address it. Thus, in State v. Clark, 291 Or 231, 630 P2d 810, cert den sub nom Clark v. Oregon, 454 US 1084 (1981), the defendant challenged a statute solely on federal equal protection grounds. The defendant not only failed to cite Article I, section 20, of the Oregon Constitution, but also expressly disclaimed any reliance on the state constitution. The Supreme Court nevertheless concluded that it was obligated to determine whether the challenged statute violated Article I, section 20. According to the court, the defendant “could not have excluded issues of state law by pitching his attack on 14th amendment grounds.” Id. at 233 n 1.
Similarly, in State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983), the defendant mounted a double jeopardy challenge to his criminal conviction, citing both state and federal *230double jeopardy clauses. The state argued that the court should decline to consider the state constitutional analysis because the defendant had failed to articulate any separate analysis under the state double jeopardy clause. The court disagreed, commenting that, “an Oregon court should not readily let parties, simply by their choice of issues, force the court into a position to decide that the state’s government has fallen below a nationwide constitutional standard,” when the matter could be decided by application of state law. Id. at 266-67.
Since the early 1980s, however, the courts have not been so faithful to the first-things-first doctrine. In a surprising number of cases, they — we—have ignored state constitutional analysis in favor of direct and immediate resort to federal constitutional law.
For example, Oregon courts often have held that, if the parties to the appeal have not clearly articulated a separate analysis under the state and federal constitutions, it is appropriate simply to apply the federal analysis. See, e.g., GTE Northwest, Inc. v. Public Utility Commission, 321 Or 458, 468 n 6, 900 P2d 495 (1995), cert den sub nom Oregon PUC v. GTE Northwest, 517 US 1155 (1996) (“GTE offers no separate analysis under the state constitution. Accordingly, we assume, without deciding, that the analysis is the same under Article I, section 18, of the Oregon Constitution, and the Takings Clause of the Fifth Amendment to the Constitution of the United States.”); Stevens v. City of Cannon Beach, 317 Or 131, 135 n 5, 854 P2d 449 (1993), cert den 510 US 1207 (1994) (“Because plaintiffs have not made a separate argument under the state constitution, we will assume for purposes of this case, without deciding, that the analysis would be the same under the Oregon Constitution.”).
In a similar vein, the courts have held that state constitutional arguments will not be addressed on appeal unless they were raised to the trial court. Indeed, we have held that, even if a party cited the state constitution to the trial court, we will not address it on appeal unless that party “clearly present [ed]” a distinct method of state constitutional analysis. State v. Riggs, 143 Or App 427, 430-31, 923 P2d 683 (1996), rev den 325 Or 247 (1997); see also State v. Mendez, *231308 Or 9, 19, 774 P2d 1082 (1989) (“We decline to consider defendant’s state constitutional claim because he has failed to brief or argue any independent state constitutional theory.”); Church at 295 S. 18th St. v. Employment Dept., 175 Or App 114, 123 n 2, 28 P3d 1185, rev den 333 Or 73 (2001) (addressing only federal constitutional arguments because state constitutional arguments were not preserved).
In other words, parties may, either by neglect or by design, force the courts to issue what amount to advisory opinions on federal constitutional law. That is precisely what the Supreme Court said in Cupp, Scharf, Clark, and Kennedy that parties cannot do. Have those cases implicitly been overruled? Apparently not. Both we and the Supreme Court continue to cite them for the proposition that we must decide state constitutional issues before we may reach federal issues. See, e.g., State v. Joslin, 332 Or 373, 380, 29 P3d 1112 (2001), rev allowed 334 Or 190 ) (2002) (citing Kennedy for rule that Supreme Court “decides state constitutional issues before deciding federal issues”); State v. Vasquez, 177 Or App 477, 481, 34 P3d 1188 (2001) (citing Kennedy for the rule that the courts “will reaeh federal constitutional arguments only if questions of state law are not dispositive”).
This state of affairs cannot help but be confusing to both bench and bar. We should reassess our conflicting case law and return to basics: Regardless of what the parties argue, we cannot reach federal constitutional issues until we have determined that the state constitution is not disposi-tive. If we are concerned about proceeding in the absence of briefing by the parties, we can remedy that through supplemental briefing. But in no event should we ignore our obligation under basic principles of state constitutionalism to decide first things first.
With that in mind, I turn to whether ORS 248.010 violates Article I, section 8, of the Oregon Constitution. That statute provides that “[e]ach major political party and minor political party, its nominated candidates and its members and officers shall have the exclusive right to use the whole party name or any part of it.” Under that statute, defendant has determined that the Freedom Socialist Party may not use that name in various state-printed documents because *232another party already has laid claim to one of the words “socialist.”
Article I, section 8, provides that
“No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right.”
Under State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982), and its progeny, a law that restrains speech based on the content of that speech is unconstitutional unless the restraint is wholly contained within a historical exception.
In this case, it strikes me that the statute runs headlong into the free expression guarantee of Article I, section 8. A political party name communicates a message to voters. Its name, in fact, is a shorthand expression for a core value that the party wishes to communicate to the public. It certainly is speech, and a regulation that prohibits a party from using certain words to express that message certainly is a regulation based on the content of speech. The parties have identified no historical exception that wholly contains such a restraint, and I am aware of none. It necessarily follows that the restraint is unconstitutional.
The defendant offers several arguments in avoidance of Article I, section 8, none of which I find persuasive. First, relying on Higgins v. DMV, 170 Or App 542, 13 P3d 531 (2000), rev allowed 332 Or 250 (2001), defendant argues that, much like the state-issued license plates at issue in that case, the state publications at issue in this case — specifically, voter registration cards, ballots, and voters’ pamphlets — are “state speech” and thus are not even subject to the protections of Article I, section 8. In relying on Higgins, however, defendant relies on a lead opinion that commanded only three votes, not an opinion of this court. In no other decision that defendant cites or of which I am aware has it been determined that Article I, section 8, may be avoided merely because a communication is, in some sense, “state speech.”
Aside from that, defendant never defines what he means by “state speech.” He merely observes that voter registration cards, ballots, and voters’ pamphlets are printed by *233the state and serve a state purpose and then concludes that what is printed on those documents is “state speech.” It is not clear to me why the mere fact that the state performs the printing for a state purpose means that a document is the speech of the state itself. The state, for example, prints and distributes voters’ pamphlets for a state purpose. That hardly makes everything that is contained in them — such as the statements for and against ballot measures that members of the public purchase — “state speech” in any reasonable sense of the word.
It seems to me that, if there is such a thing as “state speech” that is not subject to Article I, section 8, it is speech that the state either endorses or may be perceived as endorsing. Thus, in Higgins, a license plate arguably is “state speech” because the public reasonably might perceive that the state endorses what appears on it. No such danger exists in this case, when the very nature of the publications involved make it clear that the state is not endorsing anything.
In the alternative, the secretary argues that, if the statute concerns speech, then it does so permissibly, because the true target of the regulation is an unwanted effect— possible voter confusion — not the content of the speech itself. As we explained in Leppanen v. Lane Transit District, 181 Or App 136, 144, 45 P3d 501 (2002), however,
“for a regulation properly to be classified [as one permissibly targeting only effects], its operative provisions must limit the regulation to the effects it is intended to target; it must not regulate a form of speech merely because that form of speech may, in some instances, produce the unwanted effects.”
See also City of Portland v. Tidyman, 306 Or 174, 185, 759 P2d 242 (1988) (“the operative text of the ordinance [must] specify adverse effects” that are to be regulated). In this case, defendant can suggest that, at best, it is merely possible that someone might be confused by permitting more than one party to use the word “socialist.” That is not enough to transform the statute into one that regulates only effects and not speech.
*234Defendant finally suggests that, if nothing else, the statute is constitutional because it is subject to the so-called “incompatibility exception” to Article I, section 8. According to defendant, permitting more than one party to use the word “socialist” is incompatible with his duty “to present electors with information that minimizes confusion.”
In In re Lasswell, 296 Or 121, 125, 673 P2d 855 (1983), the Supreme Court upheld a disciplinary rule that prohibited a district attorney from publicly discussing the subject of an ongoing prosecution. Similarly, in In re Fadeley, 310 Or 548, 564, 802 P2d 31 (1990), the court upheld a provision of the judicial code that prohibits direct fundraising by a candidate for judicial office. In both cases, the court relied, in part, on the notion that sometimes it must be permissible to regulate the speech of a public official, because the prohibited speech is incompatible with that official’s public function. In this case, ORS 248.010 imposes no constraints on the secretary’s freedom to speak. Lasswell and Fadeley simply do not apply.
In short, the statute prohibits a political party from using specified words in communicating a message to members of the voting public. That is a regulation of political speech. It plainly is protected by Article I, section 8.1 would conclude on that basis, and that basis alone, that ORS 248.010 is unconstitutional. Once it has been determined that the statute violates the state constitution, there is no deprivation of due process and, hence, no occasion to address whether the statute also violates the First Amendment. I therefore respectfully concur with the majority’s conclusion, but not with its reasoning.