concurring.
Accepting, as I must, that a campaign contribution is a form of expression that is protected by Article I, section 8, of the Oregon Constitution, Vannatta v. Keisling, 324 Or 514, 524, 931 P2d 770 (1997), I agree with the dissent that ORS 260.402 (2003) is a law that prohibits expression per se and not a law that focuses on harm that is caused by expression. The statute prohibits a specified type of expression: falsely attributed campaign contributions. Although the statute itself specifies no harm that it is intended to prevent, the purpose of the statute is presumably to prevent members of the public from being deceived about the source of the contribution. Thus, as the lead opinion contends, “the harm necessarily occurs whenever an individual makes election campaign contributions without reporting accurately who is making the contribution.” 225 Or App at 93 (emphasis in original). Further, it is a kind of harm — being deceived — -that can be achieved only through expression, that is, through one person’s communication of some sort of falsehood to another person.
*100As the Supreme Court made clear in State v. Robertson, 293 Or 402, 412, 649 P2d 569 (1982), statutes that impose criminal sanctions for deception that can be accomplished only through speech are presumptively unconstitutional, unless, like statutes punishing perjury, fraud, and forgery, they fall within some well-established historical exception to free speech guarantees. I therefore agree with the dissent that ORS 260.402 (2003) is what has come to be known as a “Robertson category I” statute.
I concur with the lead opinion, however, because I agree that the statute is a “contemporary variant[ ],” Robertson, 293 Or at 412, of a historical exception to free speech guarantees.