¶ 50. (concurring). I agree with the majority opinion's conclusion that Douglas D.'s creative writing essay is protected by the First Amendment and may not be punished as criminal conduct. I do not, however, join the majority opinion in its expansion of the disorderly conduct statute, Wis. Stat. § 947.01. By interpreting the statute to criminalize the content of *241speech alone, that is, speech unaccompanied by any disorderly conduct, the majority opinion engages in an unwarranted judicial rewrite of a fifty-year-old statute.1
¶ 51. The majority opinion concludes that the disorderly conduct statute can punish the content of speech alone, even though no published case supports such an application of the statute.2 So that this statutory interpretation will not run afoul of First Amendment constitutional guarantees, the majority opinion judicially rewrites the statute, narrowing the phrase "abusive conduct" to include true threats, unprotected by the First Amendment, while excluding from the reach of the statute speech that may be abusive but is nonetheless protected by the First Amendment. This strained reading of the disorderly conduct statute is troubling, for three reasons.
*242¶ 52. First, the lack of a clear fit between the language of the disorderly conduct statute and speech unprotected by the First Amendment shows that the disorderly conduct statute is overbroad when used to punish the content of speech alone. By its plain language, the disorderly conduct statute criminalizes abusive or otherwise disorderly conduct that tends to provoke a disturbance. The majority defines the term "abusive" as "injurious, improper, hurtful, offensive, [or] reproachful," and notes that true threats "fall within the scope of this definition." See majority op. at ¶ 32.
¶ 53. But speech that falls within the definition of "abusive" and is provocative or unsettling may nonetheless be protected by the First Amendment. The U.S. Supreme Court explained this aspect of the First Amendment in Terminiello v. Chicago, 337 U.S. 1, 4 (1949), as follows:
[A] 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. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. (Citations omitted.)
¶ 54. Applying the plain language of the disorderly conduct statute to the content of speech alone renders the statute unconstitutionally overbroad. "A *243statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate... .The essential vice of an overbroad law is that by sweeping protected activity within its reach it deters citizens from exercising their protected constitutional freedoms, the so-called 'chilling effect.' "3
¶ 55. Applying the broadly worded disorderly conduct statute to the content of speech alone would run afoul of the U.S. Supreme Court's holding in Lewis v. City of New Orleans, 415 U.S. 130 (1974). In Lewis, the Court struck down a conviction under a city ordinance that made it unlawful "to curse or revile or to use obscene or opprobrious language toward or with reference" to a police officer performing his duties. The Court held that it was immaterial that the words used by the appellant might have been constitutionally unprotected under a properly drawn statute or ordinance. The Court declared the ordinance facially overbroad because it would criminalize all vulgar and offensive speech, including speech protected by the First Amendment.4
¶ 56. Yet instead of acknowledging that the statute, as applied to the content of speech alone, is unconstitutionally overbroad, the majority simply *244relies on this court's conclusion in State v. Zwicker, 41 Wis. 2d 497, 164 N.W.2d 512 (1969), that the disorderly conduct statute is not overbroad. See majority op. at ¶ 21. Zwicker, however, involved protected speech intertwined with conduct, whereas this case represents the first published case in which the statute has been applied to punish solely the content of speech. Zwicker does not help the majority opinion under these novel circumstances.5
¶ 57. Having stated in conclusory fashion that the statute is not overbroad, the majority opinion then judicially narrows the scope of the statute. It holds that when applied to the content of speech alone, the disorderly conduct statute criminalizes only speech that is not protected by the First Amendment. This court has rejected this kind of rewriting of a statute, stating: "[A] construction which by its very language limits the statute's application to speech and conduct that is not protected by the First Amendment is both impractical and constitutionally suspect... .'The problem with that solution is that it simply exchanges overbreadth for vagueness.' "6 By construing the disorderly conduct *245statute in a way that simply exchanges overbreadth for vagueness, the majority opinion infringes on protected forms of expression.7
¶ 58. Second, in light of the legislature's enactment of numerous statutes expressly criminalizing specific kinds of threats,8 it is hard to accept the State's position that a disorderly conduct statute that has been on the books for over fifty years without being applied to the content of speech alone has suddenly metamorphosed into an anti-threat statute. Yet the majority opinion accepts the State's theory, forgetting that "[djefining the contours of laws subjecting a violator to criminal penalty is a legislative, not a judicial function."9
*246¶ 59. Third, even if I agreed with the majority's conclusion that the disorderly conduct statute criminalizes the content of speech alone, the statute should not be used to prosecute true threats in the absence of a specific intent to threaten. I conclude that a specific intent is required under the First Amendment.10 This criminal intent element is absent from the disorderly conduct statute.11 In the absence of a specific intent requirement, today's novel expansion of *247the disorderly conduct statute infringes, in my opinion, on protected forms of expression.
¶ 60. For the reasons set forth, I write separately.
This novel application of the disorderly conduct statute also arises in a companion case, In the Interest ofA.S.: State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712. I note, however, that the rationale put forth in AS. for applying the disorderly conduct statute to the content of speech alone differs from the rationale offered in this case.
See majority op. at ¶¶ 3, 14. The majority opinion goes on to express some apparent doubt about this holding when it explains that " 'abusive' speech carries with it the nonspeech element of an express or implied threat or challenge to fight. These nonspeech elements constitute the proscribed 'conduct' under § 947.01." Majority op. at ¶ 24.
I fail to see the nonspeech element of a written threat. The majority opinion apparently believes that the content of speech may be treated the same way as the volume of the speech, which is a nonspeech element. It is a semantic sleight of hand to suggest that the content of unprotected speech transforms that speech into conduct.
Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987) (citation omitted). See also State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998).
See also Gooding v. Wilson, 405 U.S. 518, 527 (1972) (concluding that the Georgia courts' authoritative construction of a "breach of the peace" statute swept too broadly and was therefore unconstitutional); Cox v. Louisiana, 379 U.S. 536, 545 (1965) (holding that a "disturbing the peace" statute was unconstitutionally broad).
The majority opinion's reliance on Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d 264 (1965), and Teske v. State, 256 Wis. 440, 41 N.W.2d 642 (1950) is also misplaced. The ordinance at issue in Lane was directed to abusive language and was not challenged on constitutional grounds.
In Teske, the picketers, swearing and cursing, pushed officers against a train and forced their way through the cordon formed by officers. Teske involved conduct.
Janssen, 219 Wis. 2d at 382 n.13 (declining to adopt a limiting construction of a flag desecration statute) (quoting Laurence H. Tribe, American Constitutional Law § 12 — 29, at 1031 (2d ed. 1988)).
See also State v. Weidner, 2000 WI 52, ¶ 38, 235 Wis. 2d 306, 611 N.W.2d 684 (declining to rewrite a statute prohibiting *245dissemination of harmful material to minors in a way that would render it constitutional when applied in the context of the Internet); State v. Zarnke, 224 Wis. 2d 116, 139-140, 589 N.W. 2d 370 (1999) (declining to rewrite a child pornography statute to avoid the unconstitutional result of placing the burden of demonstrating lack of scienter on the defendant).
"The danger posed by a vague law is that officials charged with enforcing the law may apply it arbitrarily or the law may be so unclear that a trial court cannot properly instruct the jury as to the applicable law." Bachowski, 139 Wis. 2d at 406-07 (quoting State v. Popanz, 112 Wis. 2d 166, 173, 332 N.W.2d 750 (1983)).
See, e.g., Wis. Stat. §§940.201 (threat to witnesses); 940.203 (threat to judge); 940.205 (threat to Department of Revenue employee); 940.207 (threat to Department of Commerce or Department of Workforce Development employee); 940.45 (intimidation of victims); 943.30 (threat to injure or accuse of crime); 943.31 (threats to communicate derogatory information); 947.012 (phone calls with intent to threaten); 947.015 (false bomb threat).
Popanz, 112 Wis. 2d at 177.
See Bachowski, 139 Wis. 2d at 411 (noting that the requirements of intent and "no legitimate purpose" in the harassment statute, Wis. Stat. § 947.013, satisfied constitutional requirements, since these elements "make clear that protected expression is not reached by the statute").
See also State v. Perkins, 2000 WI 46, ¶ 29 n.20, 243 Wis. 2d 141, 626 N.W.2d 762. In Perkins, this court did not need to address whether specific intent is required by the First Amendment. The statute at issue in that case required an intent to threaten. See Wis. Stat. § 940.203(2).
The legislature has included a specific intent element in many of the anti-threat statutes. See, e.g., Wis. Stat. §§ 940.203(2)(a) (requiring an intentional threat with knowledge that the individual is a judge or family member); 940.205(2)(a) (requiring an intentional threat with knowledge that the individual is a Department of Revenue employee or family member); 946.03(l)(c)-(d) (requiring the intent that the government be overthrown). But see Wis. Stat. §§ 940.43 (statute does not address intent or knowledge); 940.45 (same).
The Model Penal Code sets forth a mens rea requirement for the offense of disorderly conduct. See II Model Penal Code and Commentaries § 250.2 at 324 (1980) (requiring as an element of the offense that a person act "with purpose to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof1).
The Commentary to the Model Penal Code explains this mens rea requirement as follows:
*247Perhaps the most important general limitation on the scope of the offense [of disorderly conduct] is the required culpability. The Model Code demands more than that a person act in a manner offensive to the community... .Conviction cannot be had merely on proof that the actor should have foreseen the risk of public annoyance or alarm. This limitation of the offense to those who are consciously indifferent to the public peace and tranquility identifies the ultimate evil at which this provision is aimed and eliminates many abusive applications to which older disorderly conduct statutes were susceptible.
II Model Penal Code and Commentaries § 250.2 at 328 — 29 (1980) (citation omitted).
Julie Underwood et al., School Safety: Working Together to Keep Schools Safe at http:// www.keepschoolssafe.org/ school.html (last visited Apr. 26, 2001).