1. This case concerns whether the First Amendment permits a person to be convicted for communicating with another with intent to harass, annoy, or alarm, so long as the speech is deemed to lack "intent of legitimate communication." Papp, 305 A.3d at 71 (quoting 18 Pa. Cons. Stat. § 2709(a)(4)—(7), (f)). Petitioner's conviction raises significant questions about when a statute targets mere conduct as opposed to expression, when a restriction is based on the speech's content, and the role of the listener's captivity—or lack thereof—in assessing the government's justification for its restriction. At bottom, the Superior Court adopted a "harassment exception" to the First Amendment, which the Third Circuit explicitly rejected in Saxe v. State College Area School District, 240 F.3d 200, 204 (3d Cir. 2001).

2. An extension is warranted because of the importance of these issues, the disagreement of lower courts, and the seriousness of the errors in the decision below. The Pennsylvania Superior Court ignored the plain language of the statute and treated the relevant provision as one that "seeks to regulate conduct' and 'is not directed at the content of speech [or] the suppression of free expression." Papp, 305 A.3d at 75 (quoting Commonwealth v. Hendrickson, 724 A.2d 315 (Pa. 1999)). The court also found that Pennsylvania's statute is content-neutral rather than content-based, see, e.g., id. at 78, and held that the statute need not withstand strict scrutiny analysis, id. at 77-78. For that reason, the court did not consider how the ease with which a listener could avoid the communications at issue affects the First Amendment analysis. See id.

3. Lower courts have struggled to apply this Court's First Amendment jurisprudence to statutes like Pennsylvania's that criminalize annoying, offensive, or alarming communications, particularly when those communications take place through digital means. Some courts, like the courts below, have upheld such laws on the ground that they regulate conduct rather than speech. See, e.g., Ex Parte Barton, 662 S.W.3d 876, 881, 884 (Tex. Crim. App. 2022) (upholding a statute criminalizing repeated communications made "with intent to harass, annoy, alarm, abuse, torment, or embarrass another" because "the conduct regulated . . . is non-speech conduct that does not implicate the First Amendment"), cert. denied sub nom. Barton v. Texas, 143 S. Ct. 774 (2023); Gormley v. Dir., Ct. State Dep't of Prob., 632 F.2d 938, 941-42 (2d Cir. 1980) (holding that a statute criminalizing phone calls made with the intent to harass, annoy, or alarm "regulates conduct, not mere speech," and is thus constitutional). Others have done so on the theory that, by purportedly focusing on harassing conduct rather than protected speech, these statutes regulate in a content-neutral manner or do not restrict enough protected speech to be facially unconstitutional. See, e.g., Dugan v. State, 451 P.3d 731, 736-39 (Wyo. 2019) (upholding a statute criminalizing communications made with intent to

Whether a state statute criminalizing communications intended to harass, annoy, or alarm constitutes an impermissible content-based restriction on speech under the First Amendment