¶ 59. {concurring). I agree with the majority that the statute is constitutional as applied. Majority op., ¶ 57.1 write separately, however, because I disagree with the majority that the statute regulates speech as well as conduct. Rather, I believe that the court of appeals got it right — this statute as applied regulates only conduct. Accordingly, I respectfully concur.
¶ 60. The court of appeals noted that "because the statute at issue implicates First Amendment rights, the State has the burden of proving beyond a reasonable doubt that the statute is constitutional." State v. Baron, 2008 WI App 90, ¶ 7, 312 Wis. 2d 789, 754 N.W.2d 175. To determine whether the State has met its burden, I begin by examining the elements of the statute.1
¶ 61. Under the facts of this case, the State must demonstrate that Baron (1) intentionally used Fisher's personal identifying information (2) for the purpose of harming Fisher's reputation (3) by intentionally representing that he was Fisher (4) without Fisher's consent. It is the second element which implicates First Amendment rights.
¶ 62. The court of appeals concluded that the statute does not criminalize each element of the statute in isolation. Baron, 312 Wis. 2d 789, ¶ 10. That is, this statute does not criminalize the intent to harm an *90individual's reputation alone. Rather, it is the whole act — the use of an individual's identity for a prohibited purpose — that is criminalized. The court noted that "Wisconsin statutes are replete with provisions that criminalize conduct that may otherwise be constitutionally protected, if that conduct is carried out in an unlawful manner." Id.
¶ 63. One particularly apt example is Wis. Stat. § 946.10(1), which criminalizes bribery of public officers. This statute is violated if the defendant (1) transfers property (2) to a public officer (3) that the officer was not authorized to receive for the performance of official duties, and (4) "the defendant intendfs] to influence the conduct of [the officer] in relation to any matter which by law [is]pending or might have come before [the officer] in an official capacity." See Wis JI — Criminal 1721 (emphasis supplied).
¶ 64. The court of appeals correctly noted that "[t]he fourth element requires that the defendant intended to engage in conduct that, were it not accompanied by a bribe, would be protected by the First Amendment."2 Baron, 312 Wis. 2d 789, ¶ 12. Similarly, the identity theft statute requires the State to prove that the defendant was motivated by a purpose which, if not accompanied by the theft of the individual's identity, would be protected under the First Amendment.
¶ 65. The court of appeals' decision in this case was cited favorably by the author of a three-volume treatise on the First Amendment. See Rodney A. Smolla, Smolla and Nimmer on Freedom of Speech § 24:19 (2009). After discussing the court of appeals' *91analogy to bribery, the treatise concludes: "The First Amendment cannot plausibly be interpreted to protect identity theft, any more than it protects bribery.... If the law does not protect the corrupt influencing of a public official by under-the-table payments, it does not protect the corrupt defaming of public officials by hacking into their computers and stealing their identity and e-mails." Id.
¶ 66. We have previously stated, "It is not an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed." State v. Robins, 2002 WI 65, ¶ 42, 253 Wis. 2d 298, 646 N.W.2d 287 (quoting Giboney v. Empire Storage, 336 U.S. 490, 502 (1949)). In Robins, we discussed whether the use of e-mail constituted speech in the context of the crime of child enticement.
¶ 67. The defendant, who was charged with child enticement, claimed that the statute violated the First Amendment as applied to his attempt to entice a child through internet speech. Intent to entice a child was an element of the offense. We concluded that the statute did not regulate speech and observed that "internet conversations and e-mails ... do not by themselves constitute the crime of child enticement. Rather, [the] internet conversation and e-mails are circumstantial evidence of his intent to entice a child ...." 7d., ¶ 44.3 *92Likewise here, the speech — the content of the e-mail — is evidence of Baron's intent to harm Fisher's reputation.
¶ 68. For the reasons discussed above, I conclude that the State has met its burden to demonstrate that the statute is constitutional. Although the application of strict scrutiny is not warranted in this case because the statute criminalizes conduct rather than speech, I agree with the majority that the statute would withstand a strict scrutiny challenge. See majority op., ¶¶ 48-56. Accordingly, I respectfully concur in the majority's opinion.
Wis. Stat. § 943.201(2)(c) provides:
Whoever, for any of the following purposes, intentionally uses, attempts to use, or possesses with intent to use any personal identifying information ... without the authorization or consent of the individual and by representing that he or she is the individual... is guilty of a Class H felony:
(c) To harm the reputation, property, person, or estate of the individual.
The First Amendment guarantees "the right of the people... to petition the Government for redress of grievances." U.S. Const, amend. I.
See also Arnold H. Loewy, Distinguishing Speech from Conduct, 45 Mercer L. Rev. 621, 622 (1994) ("A significant number of crimes either require or frequently involve communication. Simply giving money to the bribee would be ineffective because she would have no idea of why she was receiving it unless somebody communicated with her. Similarly, perjury *92punishes false statements made under oath.... I am aware of no serious argument that any of this 'speech' ought to be constitutionally protected.").