concurring in part, and dissenting in part.
I agree with the majority’s conclusion that the defendants did not have fair notice of § 240.30(l)’s unconstitutionality, and thus are entitled to qualified immunity. Police officers clearly should not be subjected to liability for failing to substitute their own legal judgment for that of state trial and appellate courts. See Pierson v. Ray, 386 U.S. 547, 555, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).
I respectfully depart from the majority insofar as it does not address the constitutionality of § 240.30(1). The Supreme Court has instructed us as follows:
In a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence.
A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?
Saucier v. Katz, 533 U.S. 194, 200-01, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The majority passes over this preliminary inquiry, holding instead that the “fair notice” prong of the test is not met and from that concluding that there is no need to reach the constitutional question. Saucier precludes this approach. Finding a constitutional violation is a prerequisite to reaching the fair notice issue, and answering the constitutional question is therefore “[ ]necessary to the disposition of the case.” Anobile v. Pelligrino, 303 F.3d 107, 123 (2d Cir.2002). My reasons for this conclusion are detailed in the discussion that follows.8
DISCUSSION
I
A. Horne
In Ehrlich v. Town of Glastonbury, 348 F.3d 48 (2d Cir.2003), we reaffirmed that “[i]n Saucier, the Supreme Court made plain that a sequential two-step analysis of qualified immunity claims is not simply recommended but required.” Id. at 56-57. Ehrlich nonetheless found exceptions to this otherwise straightforward rule, based on principles set forth in our pre-Saucier decision, Horne v. Coughlin, 191 F.3d 244 *120(2d Cir.1999). I dissented in Home -because then-governing Supreme Court precedent stated that “the better approach to resolving cases in which the defense of qualified immunity is raised is to determine first whether the plaintiff has alleged a deprivation of a constitutional right at all. Normally, it is only after making such a determination that a court should ask whether the right allegedly implicated was clearly established at the time of the events in question.” County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998). From this I concluded
A federal court faced with a suit alleging the deprivation of a constitutional right under 42 U.S.C. § 1983 should ordinarily decide whether the constitutional right alleged by the plaintiff actually exists, even where the defense of qualified immunity might provide ah alternative ground for decision. Although this principle need not govern in each and every case, it is undoubtedly the “[n]or-mal [ ]” rule and the “better approach” to constitutional adjudication in § 1983 litigation. Moreover, neither the policy of avoidance of constitutional questions nor the remote possibility of clarifying the law in later suits for injunctive relief justifies a departure from this general principle. Rather, courts remain free to depart from the general rule, only in those situations where they can articulate a persuasive reason for doing so.
Horne, 191 F.3d at 251-52 (Cardamone, J., dissenting). I did not believe that the Home majority articulated sufficient reasons for avoiding the constitutional question in that case.
B. Ehrlich
Of course, I was outvoted in Home, and ■ the Ehrlich panel sought to salvage what it could of Home in light of the Supreme Court’s holding in Saucier that the threshold constitutional inquiry is mandatory rather than simply the better approach. Whatever misgivings I may have about Ehrlich’s treatment of Saucier, Ehrlich is the law in the Circuit and must be met on its own terms. Even working within the confines of Ehrlich, however, I cannot agree with the majority because Ehrlich does not provide authority to allow us to decline to reach the constitutional issue in this case.
Ehrlich states that “in those situations in which one can conclude that the Supreme Court did not intend to make the Saucier sequence mandatory,” the Home principles are relevant to determining whether we should avoid the constitutional question. Ehrlich, 348 F.3d at 57. Those principles indicate, for example, that this Court: (1) should address “particularly egregious” constitutional violations before deciding the qualified immunity issue; (2) may pass over “particularly difficult” constitutional questions and move directly to the qualified immunity issue; and (3) when defendants are entitled to qualified immunity, may pass over the constitutional inquiry to avoid “constitutional dicta.” Id. at 56.
The Ehrlich panel identified two situations in which it may “frequently be appropriate” to conclude that the Saucier sequence is inapplicable and the Home principles are relevant. Id. at 57-58. First, we need not follow the Saucier inquiry if there is no “ ‘likelihood that the [constitutional] question will escape federal court review over a lengthy period’ ” because federal courts will not “repeatedly rely on qualified immunity to decide cases.” Koch v. Town of Brattleboro, 287 F.3d 162, 166 (2d Cir.2002) (quoting Horne, 191 F.3d at 249); see Ehrlich, 348 F.3d at 57. Second, we need not follow Saucier if “the existence of a constitutional violation depends on the resolution of *121uncertain state law,” meaning that a federal court would have to first interpret state law and then decide whether its interpretation presents a constitutional problem. Ehrlich, 348 F.3d at 58.
Neither of these exceptions from Saucier apply to this case. First, this is precisely the type of constitutional issue that will repeatedly escape review by federal courts. As the majority opinion demonstrates, numerous New York state courts have upheld the constitutionality of § 240.30(1) or have applied the law as if it was constitutional. Thus, police officers-like the defendants in this case — will always lack “fair notice” of the law’s unconstitutionality and will always be entitled to qualified immunity. Federal courts reviewing arrests under § 240.30(1), like the majority here, will “repeatedly rely on qualified immunity” and thus this issue.will “ ‘escape federal court review over a lengthy period.’” Koch, 287 F.3d at 166 (quoting Horne, 191 F.3d at 249).
Second, this is plainly not an unsettled or ambiguous state law that we would need to interpret. When state law is unclear, “adopting our own interpretation of state law would actually subvert Saucier, by inducing state actors to rely on our rule when that rule might change altogether upon subsequent review by the relevant state courts.” Ehrlich, 348 F.3d at 58. No such concern is present here. The majority concedes that § 240.30(1) is over 40 years old and that numerous state courts have found it constitutional. The statute’s plain language defines the crime of aggravated harassment in the second degree as “communicat[ing] with a person anonymously or otherwise, by telephone, or by telegraph, mail or.any other form of written communication,.in a manner likely to cause anhoyance .or alarm” with the “intent to harass, annoy, threaten or alarm [the other] person.”9 State courts have applied this provision to mean exactly what it says: that in order to obtain a conviction for aggravated harassment in the second degree, the state need only prove that a person, like. Vives, invaded “substantial privacy interests” by communicating in an annoying or alarming manner. See, e.g., People v. Goldstein, 196 Misc.2d 741, 747-48, 763 N.Y.S.2d 390 (N.Y.App. Term 2003); People v. Cooper, 4 Misc.3d 788, 792-94, 781 N.Y.S.2d 201 (Nassau County Ct.2004); People v. Miguez, 147 Misc.2d 482, 484-86, 556 N.Y.S.2d 231 (N.Y.City Crim.Ct.1990), aff'd, 153 Misc.2d 442, 590 N.Y.S.2d 156 (N.Y.App. Term 1992).10
The meaning of this law is straightforward and unambiguous-, and the state courts have given • us no cause to think otherwise. Indeed, since state courts have interpreted the meaning of this law consistently over the past 40 years, there is no realistic possibility that state courts are suddenly going to reinterpret § 240.30(1). There is, of course, always a chance that the New York State Court of Appeals will reverse several lower state courts and hold the law unconstitutional, but this does not mean that the meaning of the law is unsettled. And, in any event, such a possibility is not an adequate reason for a federal court to decline to exercise its responsibility to determine what the federal Constitution requires.
The majority states no rationale for deciding that Saucier is inapplicable. In*122stead, it relies solely on the Home factors as a reason to disregard Saucier, an approach that we explicitly rejected in Ehrlich. See Ehrlich, 348 F.3d at 56 (“These principles cannot, of course, make discretionary what the Supreme Court has deemed mandatory. They do, however, affect the choice in those cases in which the underlying rationale in Saucier does not apply.”) (emphases omitted).
C. The Horne Factors
The majority rests its decision on the avoidance of “constitutional dicta.” Under Ehrlich, this is not, in itself, a sufficient ground for disregarding Saucier. Even if it were, however, it provides no justification for avoiding the constitutional question in this case.
In cases in which we ultimately resolve the issue in favor of defendants on qualified immunity grounds, any finding of a constitutional violation is dicta. As we noted in Ehrlich, however, “the Supreme Court, by the very logic of Saucier, makes clear that such dicta is enough to put defendant state actors on notice that, if they repeat their acts, they will not have the benefit of qualified immunity.” Ehrlich, 348 F.3d at 56 n. 11. I believe this principle carries added weight in a case where, as here, state courts have placed the imprimatur of legitimacy on an arguable violation of the federal Constitution, and thus if a federal court does not step in and inform state actors that the law violates the federal Constitution, state law enforcement officers will continue to be placed in the same impossible position as the defendants in this case: they will have a duty to enforce a law that violates core federal constitutional rights because state courts have told them that the law is valid.
Although the Home majority expressed concern about constitutional holdings in dicta, Horne, 191 F.3d at 247-48, none of those concerns should overcome the necessity of reaching the constitutional issue in this case. The Home majority fretted that “judges risk being insufficiently thoughtful and cautious in uttering pronouncements” in dicta, and that “parties may do an inadequate job briefing and presenting an issue that predictably will have no effect on the outcome of the case.” Id. at 247. Such concerns, to the extent they are relevant at all, are hardly relevant here. I doubt that any member of this panel fails to understand the importance of the issues in this case or has been “insufficiently thoughtful and cautious” in deciding this appeal.
Further, the majority cannot reasonably declare that the parties did not adequately address this issue. Defendants were represented on appeal by the Corporation Counsel of the City of New York. That office, although it preferred to place more emphasis on the qualified immunity issue that we ultimately resolved in its favor, devoted considerable portions of its opening and reply briefs to defending the constitutionality of § 240.30(1), both under state and federal law. Plaintiffs devote nearly half of their brief to the unconstitutionality of § 240.30(1) under federal law. The New York Attorney General, despite the panel’s repeated requests for a brief defending the constitutionality of the statute, refused to defend the law and filed a one-page letter brief conclusorily stating that Vives’ actions did not satisfy the elements of § 240.30(1), a position that none of the panel members found persuasive. Thus, it is hard to see how the parties could have better addressed the constitutional issue, and the fact that the State of New York refused to defend its own law cannot serve as grounds for us to decline to decide whether that law is or is not constitutional.
The Home majority raised another objection to constitutional dicta that is more *123substantial. When we find a constitutional violation, but then find that the defendants are protected by qualified immunity, the defendants have no opportunity to appeal the constitutional issue because they won on qualified immunity. Horne, 191 F.3d at 247.
This scenario is, of course, an inescapable result of the sequential order of the Saucier inquiry, and since we cannot both follow Saucier and avoid this problem, we must assume the Supreme Court anticipated this result and was not troubled by it. In any event, if the plaintiff appeals this Court’s qualified immunity ruling, there is no reason to believe that the Supreme Court would not review the constitutional issue, since doing so is the first step in analyzing any qualified immunity claim. See Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (reiterating that, on review of a lower court decision granting defendants qualified immunity, “[t]he threshold inquiry ... is whether plaintiffs allegations, if true, establish a constitutional violation”). As the Supreme Court will have ample opportunity to review our constitutional decision if plaintiff appeals our decision, the expressed concern over constitutional dicta is to my mind unavailing in the present case, especially since the majority failed to articulate any reason why Saucier should not apply.
Finally, the constitutional issue before us is not particularly difficult, and the violation is particularly egregious. For the reasons stated below, I have no difficulty finding a serious constitutional violation in the case now before us.
II
A. Section 24.0.30(1) is Unconstitutional on its Face
A criminal prohibition on communicating in an annoying or alarming way is facially unconstitutional. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Texas v. Johnson, 491 U.S. 397, 414, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). In fact, “a principal ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger.’” Id. at 408-09, 109 S.Ct. 2533 (quoting Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949)).
In this case, New York City police, acting pursuant to § 240.30(1) and with the blessing of New York courts, arrested Vives for mailing a political and religious statement to a candidate for public office. The officers’ ground for arresting Vives was that the recipient found his communication with her “annoying and/or alarming,” which is a violation of § 240.30(1). Speech of this sort may only be proscribed in three very limited circumstances: (1) the speech constitutes “fighting words” that “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); (2) the speech constitutes “advocacy [that] is directed to inciting or producing imminent lawless action and is likely to incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); and (3) the speech constitutes a “ ‘true threat’ ” by which “the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a, particular individual or group of individuals.” Virginia v. *124Black, 538 U.S. 343, 359, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) (quoting Watts v. United States, 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969)). Section 240.30(1) is not limited to these three categories. By criminalizing speech that merely annoys or alarms, the statute is unconstitutionally overbroad.
B. Section 24-0.30(1) is Unconstitutional As Applied
Moreover, § 240.30(1) is unconstitutional as applied. Vives sent, on a single occasion, to a candidate for public office, a nonthreatening letter concerning political and religious issues of importance to him. One would be hard-pressed to think of an action that is closer to the core of the First Amendment. See, e.g., Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995) (“[Pjrivate religious speech, far from being a First Amendment orphan, is as fully protected under the Free Speech Clause as secular private expression.”); New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (“The general proposition that freedom of expression upon public questions is secured by the First Amendment has long been settled by our decisions. The constitutional safeguard, we have said, ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’”) (quoting Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957)).
Political or religious speech of the type Vives engaged in, as noted, may only be suppressed if it creates an unjustifiable risk of immediate breach of the peace, imminent lawless action, or a specific threat of violence directed to an individual or group. See Black, 538 U.S. at 359, 123 S.Ct. 1536. Chaplinsky, Brandenburg, and, most recently, Black, make clear that while these narrow limitations are consistent with the First Amendment, broader restrictions are not. See Black, 538 U.S. at 358-59, 123 S.Ct. 1536; Brandenburg, 395 U.S. at 447, 89 S.Ct. 1827; Chaplinsky, 315 U.S. at 573-74, 62 S.Ct. 766. As a consequence, insofar as Vives was arrested under § 240.30(1) for engaging in “annoying and/or alarming” political and religious speech, his arrest is plainly unconstitutional.
CONCLUSION
In Ehrlich, we stated that “[w]e are, of course, bound to implement [Saucier ], and fully expect to do so in the vast majority of qualified immunity cases that come before us.” Ehrlich, 348 F.3d at 57. The majority’s treatment of Saucier in this case demonstrates how far we have deviated from Ehrlich’s narrow language. Perhaps our responsibilities were less burdensome under Home and other pre-Saucier cases, but I am troubled by a decision that seeks to avoid the difficult questions that the Supreme Court has obligated us to face.
For whatever reason, New York’s courts have shown no inclination to hold that § 240.30(1) violates the First Amendment insofar as it criminalizes speech that is merely annoying or alarming, and New York police continue to enforce the statute to the detriment of citizens’ core First Amendment rights. Accordingly, for the reasons stated, I concur with the majority’s resolution of the qualified immunity issue, but respectfully dissent from its refusal to reach the constitutional issue and, once and for all, hold § 240.30(1) unconstitutional.
. In Brosseau v. Haugen, 125 S.Ct. 596 (decided Dec. 13, 2004), the Supreme Court declined to reconsider Saucier, see id., at 598 n.3, despite the disagreement of three Justices whose reasons were similar to those the majority adopts in this case. See id. at 601 (Breyer, J., concurring, joined by Scalia and Ginsburg, JJ.).
. The constitutionality of § 240.30(1), insofar as it criminalizes harassing or threatening communications, is not disputed in this appeal.
. To be sure, the conduct at issue in some of these cases could be termed harassment, but the courts have not required the state to prove harassment or threats, and for good reason: § 240.30(1) merely requires the state to prove annoyance or alarm.