The opinion
ARMSTRONG, J.,
concurring.
Applying the analytical framework established in State v. Robertson, 293 Or 402 , 649 P2d 569 (1982), and our decision in Karuk Tribe of California v. TriMet, 241 Or App 537 , 251 P3d 773 (2011), aff'd by an equally divided court, 355 Or 239 , 323 P3d 947 (2014), the majority concludes that restrictions imposed by the Port of Portland on the content of advertisements that the Port permits to be displayed at Portland International Airport violate Article I, section 8, of the Oregon Constitution. As I will explain, I believe that the Port’s advertising restrictions do not violate Article I, section 8. I nonetheless concur in the decision to affirm the judgment in this case because, although I believe that Karuk Tribe was wrongly decided, I believe that we are bound by principles of stare decisis to adhere to it. Hence, it falls to the Oregon Supreme Court to correct our decision in this case.
The advertising restrictions at issue here are equivalent to those in Karuk Tribe. We held there that restrictions imposed by TriMet on the content of advertisements that TriMet would allow to be placed on its vehicles were subject to the Robertson analysis and, under that analysis, that the restrictions violated Article I, section 8. Karuk Tribe, 241 Or App at 545-48 . We did not consider in Karuk Tribe whether the restrictions came within a well-recognized historical exception for restrictions imposed on expression by a municipal corporation acting in a proprietary capacity, because we concluded that TriMet had failed to timely raise the issue. Id. at 548 .
Here, the majority addresses the proprietary-capacity argument on its merits and rejects it, together with a related argument that the Port’s rules restricting the content of *467 advertisements at the airport should not be considered to be laws for purposes of the limitation imposed by Article I, section 8, against the enactment of laws that restrict expression. 286 Or App at 457-66. I agree with the majority’s resolution of both of those issues.
However, I believe that we erred in Karuk Tribe in concluding that the Robertson analysis applied to the advertising restrictions at issue there and, by extension, to the restrictions at issue here. Our error stemmed from our failure to recognize that the principle under which we and the Supreme Court had upheld restrictions on the content of expression on custom license plates for motor vehicles in Oregon in Higgins v. DMV, 170 Or App 542 , 13 P3d 531 (2000) (en banc), aff'd, 335 Or 481 , 72 P3d 628 (2003), applied equally to the advertising restrictions at issue in Karuk Tribe.
We and the Supreme Court recognized in Higgins that custom license plates involve communication by both the state and the people who purchase them. However, because the state uses state-issued license plates to communicate information for a state purpose, Article I, section 8, does not limit the state’s authority to control the communicative content of the plates, that is, to restrict the ability of people to use the plates to communicate.
We correctly recognized that aspect of Higgins in a footnote in Karuk Tribe, noting that,
“[w]here [a] challenged law regulates the legally compelled display of a message that the government creates for its own regulatory purpose, Robertson is inapplicable because the protection of Article I, section 8, does not inure to that speech.”
Karuk Tribe, 241 Or App at 546 n 6 (citing Higgins, 335 Or at 490-91). I believe, however, that we failed in Karuk Tribe to recognize the broader principle embodied in Higgins . The broader principle is that there are circumstances in which the government can choose to create opportunities for people to communicate without making Article I, section 8, applicable to the government’s decision to control the content of the communication. And, contrary to Karuk Tribe, I believe *468 that the opportunity that TriMet created for people to place advertisements on its vehicles comes within that principle, as does the equivalent decision by the Port to allow advertisements to be placed on airport property.
The state’s decision to allow signs to be placed on the right of way of Oregon roads and highways to identify and help people locate Oregon wineries (and other businesses), that is, to advertise the businesses to the public, provides another example of the principle. See ORS 377.800, ORS 377.805 (authorizes placement of tourist and motorist information signs along highways); OAR 733-030-0006 (identifies qualifying businesses); OAR 733-030-0026, OAR 733-030-0036, OAR 733-030-0080 (imposes requirements for content of signs). The state can charge wineries for the opportunity to communicate with the public in that way and can control the content of the communication on the signs without regard to the strictures imposed on the state by Article I, section 8. In contrast, state restrictions on the content of communication on signs placed by Oregon wineries (and others) on private property adjacent to Oregon roads and highways are subject to Article I, section 8. See, e.g., Outdoor Media Dimensions v. Dept. of Transportation, 340 Or 275, 298-99 , 132 P3d 5 (2006). Both regulatory regimes involve the imposition of state restrictions on the content of communication by others, but only the latter is subject to Article I, section 8.
In the same vein, the state’s publication of the Voters’ Pamphlet gives candidates and others the opportunity to communicate with Oregon voters about the merits and demerits of candidates and measures on each election ballot. The state imposes restrictions on the content of the statements that it allows to be published in the Voters’ Pamphlet, see, e.g., ORS 251.055(1); ORS 251.085; State Voters’ Pamphlet Manual 9, 23 (2016) (adopted by OAR 165-016-0000), but its decision to do that does not implicate Article I, section 8. Of course, the imposition of state restrictions on communication about candidates and measures in most other contexts is subject to Article I, section 8.
At the risk of belaboring the point, the same principle would apply if the state chose to publish a magazine (or *469 to establish a public radio or television station) and solicited advertisements to help defray the cost of it. The state’s exercise of control over the content of the advertisements would not implicate Article I, section 8.
In sum, the principle at issue here recognizes that Article I, section 8, does not limit the authority of the government to choose the information that it wishes to communicate in conjunction with its activities when, as here, the governmental activity is one in which the government can choose to bar all communication or to communicate only information of its choosing. Both TriMet and the Port can decide to communicate no information on their respective vehicles and the walls and other surfaces of their facilities or to communicate whatever information they wish to communicate on them. Article I, section 8, simply does not apply to those decisions. 1
If the broad Higgins principle that I have identified is not correct, that is, if Article I, section 8, and Robertson apply to decisions to give people the opportunity to communicate through state license plates or to place advertisements on TriMet vehicles or at the Portland airport, then the affected governmental entities will be required to allow the communication in those settings of almost any message that anyone wishes to communicate—no matter how vulgar, offensive, or objectionable to people whom the governmental entities serve—because no historical exception or permissible effects-based restriction will provide the means to prevent that. Cf. State v. Maynard, 138 Or App 647, 656-59 , 659 n 3, 910 P2d 1115 (1996) (Armstrong, J., concurring) (discussing permissible scope of effects-based laws restricting expression), vac’d, 327 Or 582 , 964 P2d 264 (1998), on remand, 168 Or App 118 , 5 P3d 1142 (2000), rev den, 332 Or 137 (2001). I do not believe that Article I, section 8, places Oregon governments in the position in which, if they choose *470 to allow people to communicate in circumstances such as those presented in Higgins, Karuk Tribe, and here, the governments will have no meaningful ability to control the content of the communication. Nonetheless, that is the position in which Karuk Tribe has placed them.
Although I believe that Karuk Tribe was wrongly decided, our case law on stare decisis leads me to conclude that it is the Supreme Court, rather than our court, that will have to correct the error. Hence, I concur in the decision to affirm the judgment in this case.
It is worth noting, however, that the fact that Article I, section 8, does not limit the authority of the government to control the content of advertising in the circumstances presented in Karuk Tribe and here does not mean that there are no constitutional constraints on that authority. Other constitutional provisions, both state and federal—for example the guarantee of equal treatment in Article I, section 20, and of free expression in the First Amendment—will serve to constrain that authority.