Whether a message stating 'Hey, long time no talk, how have you been?' can be criminally prosecuted under a disorderly conduct statute as 'fighting words' or a 'true threat' under the First Amendment

QUESTION PRESENTED FOR REVIEW This case presents an important question involving the application of the First Amendment to the Constitution to state disorderly conduct statutes prohibiting speech that tends to “alarm or disturb another and to provoke a breach of the peace.” U.S. Const. Amend. I; 720 ILCS 5/26-1(a)(1) (2015). In this case, the petitioner sent an electronic message to a 15-year-old minor stating, “Hey, long time no talk, how have you been?” The Illinois Appellate Court held that the message violated Illinois’ disorderly conduct statute because, in light of the fact that the petitioner had an inappropriate relationship with the minor four years earlier, his “attempt to reconnect” with her was “unreasonable and threatening” and “invaded [her] right not to be mentally harassed.” People v. Pence, 2018 IL App (3d) 151102, { 18. This Court has held that when a criminal statute is applied to speech, it must be interpreted in accordance with the First Amendment, which prohibits criminalizing speech that is not lewd, profane, obscene, libelous, fighting words, or true threats. Virginia v. Black, 538 U.S. 348, 359 (2003); Beauharnais v. Illinois, 343 U.S. 250, 25556 (1952). The message in this case was obviously not lewd, profane, obscene, or libelous. As such, the question in this case is whether a message stating, “Hey, long time no talk, how have you been[,]” which was by all accounts intended to allow its sender to “reconnect” with its recipient, could possibly fit this Court’s definition of fighting words or a true threat and, thus, whether the First Amendment allowed the petitioner to be criminally prosecuted for sending that message. i