¶1concurring.
¶2I agree with the majority opinion that: (1) Under Stonemaris contextual analysis, ORS 167.065(l)(a) is “effects-based,” not “content-based.” (2) The “historical exception” analysis applies only to “content-based” statutes. And (3) ORS 167.065(l)(a) is unconstitutionally overbroad. Given those premises, it is unnecessary to reach, and I do not join in, the majority’s substantive discussion of whether the subject of ORS 167.065(l)(a) falls within a historically recognized exception.
¶3 This is not merely a matter of jurisprudential fastidiousness. I joined the majority in Maynard I in concluding that ORS 167.065(l)(a) did not fall within a historically recognized exception — as did Judge Landau. Judge Landau’s comprehensive dissent revisits that issue and presents provocative historical evidence and analysis far transcending anything we considered in Maynard 1.1 am not certain that Judge Landau’s historical conclusions are right — but I am far from certain that they are wrong. At the least, Judge Landau’s dissent highlights some very real and recurring concerns pertaining to the Robertson construct generally and the function and content of the “historically recognized exception” qualification specifically.