People v. Swenson

2020 IL 124688

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 124688)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

RORY SWENSON, Appellant.

Opinion filed June 18, 2020.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Anne M. Burke and Justices Karmeier, Theis, and Michael J.

Burke concurred in the judgment and opinion.

Justice Neville dissented, with opinion, joined by Justice Kilbride.

OPINION

¶1 Defendant Rory Swenson was convicted of disorderly conduct in the circuit

court of Winnebago County after a telephone conversation with the advancement

director of a private school. In that call, he asked about the school’s security

measures and spoke extensively about shootings and violence. The conversation

caused a soft lockdown at the school and a police response. We are called on to

decide whether defendant’s speech was protected by the first amendment to the

United States Constitution.

¶2 BACKGROUND

¶3 On December 7, 2015, defendant placed a call to Keith Country Day School

(Keith), a private school in Winnebago County. He left a message for the director

of advancement. When she called him back, he asked questions and gave statements

about school security, mass shootings, and gun violence. These questions and

statements disturbed and alarmed the director, who texted another administrator to

call the police and lock down the school. Defendant was arrested and eventually

charged with attempted disorderly conduct (720 ILCS 5/8-4(a), 26-1(a)(3.5) (West

2014)), phone harassment (id. § 26.5-2(a)(2)), and disorderly conduct (id. § 26-

1(a)(1)). The case proceeded to a bench trial.

¶4 The State called two witnesses. The first was the police officer who was

dispatched to defendant’s home to investigate the call. He testified that he called

defendant, who did not answer but came outside within a minute of the officer’s

call. He said that defendant admitted calling the school to ask about security. He

testified that he arrested defendant for disorderly conduct and placed him in the

back of his police cruiser. He agreed that defendant was at all times cooperative

and that defendant had also told him that he was trying to get information about the

school because he was considering transferring his son there. He stated that, after

he arrested defendant, defendant asked him to go into his apartment to get

defendant’s seven-year-old son, who was inside. He testified that defendant told

him, after he asked, that he had no guns in the apartment and that he did not see any

in plain view when he entered.

¶5 The director of advancement, Monica Krysztopa, testified that she handles

admissions, fundamental needs, and alumni relations at Keith. She stated that she

had been at the school for a year and a half and that she fielded calls from parents

looking to enroll their children at Keith. She testified that she returned to her office

to a message from a man named Rory who asked her to return his call regarding

admissions at Keith. She called the number left in the voicemail, and the individual

who answered identified himself as defendant. Defendant stated that he had a son

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that he would be interested in enrolling at Keith. She stated that defendant then

“immediately went into a battery of questions about the protocol at our school for

handling things that were related to guns and shooting.” She testified that he asked

such questions as whether the secretary’s desk had bulletproof windows and how

prepared she would be “if he or anyone *** arrived on our campus with guns.” She

testified that he also “mentioned *** in passing that the United States was full of

socialists and KGB members.” He asked if the school followed truancy laws.

¶6 Krysztopa stated that defendant mentioned the mass shooting in

San Bernardino, which she testified was a week prior to the call. She testified that

defendant asked her if she knew the number of shootings or the success rate of

shooters once they were on campus. She said that he told her that it would be

important for the school to know the success rate when an armed individual was on

campus. She stated that he asked her, “[I]s Keith prepared? You know

San Bernardino had happened the week prior and were we prepared for that, that

day had it happened at our school that day.” The statement that stood out most to

her was when he asked her if she “was prepared to have the sacrificial blood of the

lambs of our school on our, on my hands, if this were to happen and what would I

do?” She interpreted that question as asking her if she was prepared to have that

blood on her soul or on her person. When asked to say exactly what defendant said

about entering the school with a gun himself, as closely as she could, she testified

that “[h]e said if he were to show up at the campus with a gun what would be the

protocol of our school?” He asked, according to Krysztopa, whether the school gave

teachers “PEZ dispensers to defend themselves” and what the students would think

“of seeing a gun pointed in their teacher[’]s face.”

¶7 According to Krysztopa, he continued by asking “if teachers were prepared to

have a gun in their face” and whether they carried guns. “[H]e talked about a

number of guns and their success rate in kill.” She stated that he asked her “how

long it would take the police to get to Keith School should there be a shooting.”

Her “impression was, to be perfectly honest, that he was on our campus.” She

testified that she got that impression based on two specific questions: “the one about

me being prepared to have the blood of the sacrificial lambs on my hands that day

and if we were prepared to handl[e] something like San Bernardino that day. And

he spoke of the woods around the campus.” After refreshing her recollection with

her notes, Krysztopa testified that defendant

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“was talking about when you shoot and kill children and you’re looking them

in the eye and their innocence and the pillows of laying their heads down at

night and then you have a shooter who shoots them in the face, you know, what

does that do for me as a school? How do we protect them from that?”

She thought that he “wanted to know if [she] would sniff the pillow of their

innocence after they’ve been dead.” At the end of the conversation, Krysztopa said

that defendant asked if the conversation was being recorded. She said that she “was

trying to be light” and told him that “we have copiers that don’t even work in our

school. I’m not recording this.” She said that he “went on and said, again, asking

about our protocol, how we handle shooters *** and I was talking with him [when]

he did say he had to go, the conversation was done and he hung up.”

¶8 Krysztopa testified that, during the conversation, she texted the head of the

school, telling her “[t]here’s someone talking about guns and the safety of the

school, call 911.” Someone called 911, and the school went into a soft lockdown,

which she described as a situation in which students were put into closed

classrooms with an adult present to account for each student and determine a count

of the entire student body. She stated that this was the only time the school had

entered a soft lockdown in the year and a half that she worked there. With an officer

dispatched to defendant’s home and two officers on campus, she testified that,

because it was close to dismissal time, they dismissed the students. Fifteen minutes

after dismissal, the school sent a letter to parents informing them that a threat had

been made without going into detail about the threat. She later clarified that she

initiated the police contact for two reasons: (1) because she thought defendant was

on the campus, which she posited would mean there was an active shooter on

campus, and (2) because she did not know why defendant shared with her that he

had been kicked out of Keith as a child, which led her to think that he was an active

shooter on campus.

¶9 On cross-examination, Krysztopa agreed that the voicemail stated that

defendant was interested in talking about admissions and potentially transferring

his son to Keith. When she called him, he told her that his son was in second grade

and that he was looking to transfer him from Rockford Public Schools. She testified

that he mentioned “that he was concerned about the security protocols in the public

schools.” She did not know any other intention for the call than defendant’s

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intention to transfer his son from the public school to a private school. She said that

defendant never told her that he had guns nor did he say he was coming to the

school with guns; rather, she agreed, “[h]e asked what would happen if someone

came to the school with a gun.” She stated that defendant did not make an

immediate threat.

¶ 10 At the close of the State’s case, defendant moved for a directed verdict on all

counts. The trial court granted that motion as to the phone harassment charge but

not the disorderly conduct or attempted disorderly conduct counts.

¶ 11 Defendant testified that his son was seven years old at the time of the call and

that he was enrolled in second grade at a public school. He testified that he was

concerned with security in the public school system and considered enrolling his

son in “what [he] believed would be a privatized institution of learning where they

weren’t bound by budgeting restrictions used as an excuse not to protect our

children.” Keith was the first on his list, followed by two religious schools. He

stated that he called Keith and received a call back from Krysztopa. He continued

that he “asked [about] two things”: “financial aid because I’m a single parent” and

“the security protocol.” Information about these two things, he said, was the

purpose of his call. Regarding the security protocol, he asked if Krysztopa could

even talk to him about it over the phone; “[i]f need be, when I come to fill out the

financial aid information, I can talk to you about it then is exactly what I said to

her.” He said that he told Krysztopa that his intent was to enroll his son in the school

and that he included that statement in the voicemail message. He stated that he

“absolutely” did not threaten anyone and that he “absolutely” did not say that he

was going to bring a gun to the school. He testified that he did not have a Firearm

Owner’s Identification card or own any weapons and that he told this to the

responding officer. He also testified that he allowed the officer into his home.

¶ 12 On cross-examination, defendant testified that he asked about the school’s

programs, such as whether they “still taught foreign languages for young children”

and “[i]f they still had the art room.” He said that he asked about the curriculum but

not about the students’ schedules. He said that “if there was a security protocol

issue with me talking to her over the phone that I would be more than willing to

come in and talk with her when I fill out the financial aid papers for the financial

aspect of enrolling my son in the school.” He admitted that he asked whether

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teachers carry guns, but he denied asking whether he would be shot and killed if he

came into the school and started shooting. He also denied asking what a child’s life

was worth and answering himself that a child’s life was worth $67,000. Rather, he

testified, he explained that “if they would fire a teacher for a $67,000 salary cap

and hire an off-duty police officer that they would be able to protect children with

a response time which would lower the casualty rate by 73 to 86 percent should

there be an active shooter scenario at any school.” He again denied asking what

would happen if he were to enter the school with a gun. In response to a question

asking whether he said that it would take two to four minutes for police to arrive at

the school, he explained that “general protocol for my son’s school that a two- to

four-minute-response time was inadequate for what I thought should be my job as

a parent to protect my son at school when I am not there to be able to do that.” He

also denied asking Krysztopa if she was ready to see the blood of the sacrificial

lamb, claiming that he said “if the liberal left wants to make me their sacrificial

lamb so be it. Then the blood is on their hands next time there is a school shooting

in regards to civil ramifications.” He also explained that his concern with his son’s

current school was that “nothing more than a piece of quarter inch glass separates

our children *** from an active shooting scenario.” After agreeing that Keith was

the first school that he called, he stated that he also called the two religious schools

in the time between leaving a message at Keith and receiving the call back.

Defendant testified that, when the police arrived, he went outside to “see what was

going on” and, when asked by the officer, explained that he “called to enroll my

son in a school and [Krysztopa] took [defendant’s] political affiliation and spun it

out of context.”

¶ 13 After closing argument, the trial court found all three witnesses to be credible.

It found that, where defendant’s and Krysztopa’s testimony conflicted, hers was

more credible. Regarding the attempted disorderly conduct, the court found that

defendant did not make a threat and acquitted him of that charge. Regarding the

disorderly conduct charge, the court again stated that it did not think that defendant

was threatening the school but found that he acted in an unreasonable manner. The

court found that Krysztopa was alarmed and disturbed and that defendant should

have known that she would be disturbed. The judge expressly found that the

unreasonableness was in the nature of the questions defendant asked. He further

found that defendant knowingly acted unreasonably and convicted him of

disorderly conduct. Defendant was sentenced to two days in jail with credit for two

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days served, a term of probation, and a fine. The appellate court affirmed. 2019 IL

App (2d) 160960, ¶ 29. We granted leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,

2018).

¶ 14 ANALYSIS

¶ 15 Defendant was convicted of disorderly conduct. “A person commits disorderly

conduct when he or she knowingly: (1) Does any act in such unreasonable manner

as to alarm or disturb another and to provoke a breach of the peace[.]” 720 ILCS

5/26-1(a)(1) (West 2014).

¶ 16 Defendant asserts that the only conduct in which he engaged was speech. He

argues that his speech was protected by the first amendment to the United States

Constitution, that the courts below misunderstood the requisite mental state, and

that the appellate court incorrectly applied this court’s decision in People v. Raby,

40 Ill. 2d 392 (1968). We first address defendant’s contentions of first amendment

protection.

¶ 17 First Amendment Protection

¶ 18 “The first amendment, which applies to the states through the fourteenth

amendment, precludes the enactment of laws ‘abridging the freedom of speech.’ ”

People v. Relerford, 2017 IL 121094, ¶ 31 (quoting U.S. Const., amends. I, XIV).

Because of this restriction, the “ ‘government has no power to restrict expression

because of its message, its ideas, its subject matter, or its content.’ ” United States

v. Alvarez, 567 U.S. 709, 716 (2012) (quoting Ashcroft v. American Civil Liberties

Union, 535 U.S. 564, 573 (2002)).

¶ 19 The constitutionality of a statute presents a legal question that we review

de novo. People ex rel. Hartrich v. 2010 Harley-Davidson, 2018 IL 121636, ¶ 13.

The trial court’s underlying credibility and factual findings, however, are reversed

only if they are against the manifest weight of the evidence. Id. Defendant does not

claim that the statute is facially unconstitutional but instead makes an as-applied

challenge, which “asserts that the particular acts which gave rise to the litigation

fall outside what a properly drawn regulation could cover.” Vuagniaux v.

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Department of Professional Regulation, 208 Ill. 2d 173, 191 (2003). In an as-

applied challenge, the challenging party “protests against how an enactment was

applied in the particular context in which the [party] acted or proposed to act, and

the facts surrounding the [party’s] particular circumstances become relevant.”

Napleton v. Village of Hinsdale, 229 Ill. 2d 296, 306 (2008).

¶ 20 We first consider whether defendant’s discussion with Krysztopa constituted

speech or expression as contemplated by the first amendment. Although defendant

ostensibly called to inquire about enrolling his son at Keith, he asked rhetorical

questions such as whether Krysztopa would sniff the pillows of schoolchildren’s

innocence if they were shot. He told the responding officer that Krysztopa “took

[his] political affiliation and spun it out of context.” Although we do not doubt that

defendant indeed called to gather information and potentially enroll his son at the

school sometime in the future, he also intended some of his questions and

statements to express his sentiments about the state of school security in general, at

Keith, or both.

¶ 21 Moreover, we agree that defendant did not engage in any conduct other than

speech. In Raby, this court held that “[u]nder no circumstances would the

[disorderly conduct] statute ‘allow persons to be punished merely for peacefully

expressing unpopular views.’ ” Raby, 40 Ill. 2d at 397 (quoting Cox v. Louisiana,

379 U.S. 536, 551 (1965)). Our appellate court has cited this statement to support

what it calls “the long-standing principle that speech alone cannot form the basis

for a disorderly conduct charge.” People v. Rokicki, 307 Ill. App. 3d 645, 652

(1999). Another panel stated the holding more accurately: “[i]n Raby, our supreme

court rejected the proposition that the disorderly conduct statute punishes speech

protected by the first amendment.” People v. Nitz, 285 Ill. App. 3d 364, 369 (1996).

Because the only action in which defendant engaged was speech and because the

disorderly conduct statute cannot criminalize protected speech, defendant’s

conviction can stand only if his speech was unprotected.

¶ 22 Our first step is to determine whether the statute, as applied to defendant, is a

content-based speech restriction. “Government regulation of speech is content

based if a law applies to particular speech because of the topic discussed or the idea

or message expressed.” Reed v. Town of Gilbert, 576 U.S. ___, ___, 135 S. Ct.

2218, 2227 (2015). A statute restricting speech is content based if “it is the content

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of the speech that determines whether it is within or without the statute’s blunt

prohibition.” Carey v. Brown, 447 U.S. 455, 462 (1980); see also People v. Jones,

188 Ill. 2d 352, 358 (1999) (citing Carey, 447 U.S. at 462). There is no question

that it was the content of defendant’s speech that alarmed and disturbed Krysztopa.

He could have asked about school lunches, classes, asbestos pipes, tuition, the

school day, or just about any other subject, and she would not have become alarmed

and disturbed. It was the topic of guns, violence, and school safety—the content of

his speech—that led to the alleged breach of the peace.

¶ 23 “Content-based laws—those that target speech based on its communicative

content—are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state

interests.” Reed, 576 U.S. at ___, 135 S. Ct. at 2226 (citing R.A.V. v. St. Paul, 505

U.S. 377, 395 (1992)). There exist, however, “ ‘certain well-defined and narrowly

limited classes of speech, the prevention and punishment of which have never been

thought to raise any Constitutional problem.’ ” Beauharnais v. Illinois, 343 U.S.

250, 255-56 (1952) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72

(1942)). Content-based restrictions on these categories of speech do not fall within

the protection of the first amendment and have been upheld. People v. Ashley, 2020

IL 123989, ¶ 31 (citing United States v. Stevens, 559 U.S. 460, 468 (2010)). Of the

handful of exceptions, only two could potentially apply here: the “true threats”

exception (Virginia v. Black 538 U.S. 343, 359 (2003); Ashley, 2020 IL 123989,

¶ 31) and the “fighting words” exception (Beauharnais, 343 U.S. at 256).

¶ 24 The True Threats Exception to First Amendment Protection

¶ 25 The “accepted categories of unprotected speech include true threats, which may

be banned without infringing on first amendment protections.” Ashley, 2020 IL

123989, ¶ 31. “ ‘True threats’ encompass those statements where 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.” Black, 538 U.S. at 359;

Ashley, 2020 IL 123989, ¶ 33. “ ‘The speaker need not actually intend to carry out

the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear

of violence” and “from the disruption that fear engenders,” in addition to protecting

people “from the possibility that the threatened violence will occur.” ’ ” Ashley,

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2020 IL 123989, ¶ 33 (quoting Black, 538 U.S. at 359-60, quoting R.A.V., 505 U.S.

at 388).

¶ 26 We first note that the trial court acquitted defendant of attempting to threaten

the school or its employees. That charge is not before us. In convicting him of

disorderly conduct, the court stated again that it knew “[he] wouldn’t threaten

them.” In cases in which “the question is one of alleged trespass across the line

between speech unconditionally guaranteed and speech which may legitimately be

regulated,” however, “the rule is that we examine for ourselves the statements in

issue and the circumstances under which they were made to see . . . whether they

are of a character which the principles of the First Amendment, as adopted by the

Due Process Clause of the Fourteenth Amendment, protect.” (Internal quotation

marks omitted.) New York Times Co. v. Sullivan, 376 U.S. 254, 285 (1964); see also

Miller v. California, 413 U.S. 15, 25 (1973) (“[T]he First Amendment values

applicable to the States through the Fourteenth Amendment are adequately

protected by the ultimate power of appellate courts to conduct an independent

review of constitutional claims when necessary.”); Bose Corp. v. Consumers Union

of United States, Inc., 466 U.S. 485, 510-11 (1984) (“The requirement of

independent appellate review reiterated in New York Times Co. v. Sullivan is a rule

of federal constitutional law. *** It reflects a deeply held conviction that judges—

and particularly Members of [the Supreme Court]—must exercise such review in

order to preserve the precious liberties established and ordained by the

Constitution.”). We thus independently examine the record and assess the

testimony to determine whether a first amendment exception applies.

¶ 27 The parties, noting the split among other jurisdictions, disagree as to the mental

state requirement for conveying a true threat. After submission of their briefs and

oral argument, however, we have resolved that issue in Illinois. We recently held

that, to make a true threat, a defendant must act with either a “specific intent or a

knowing mental state.” Ashley, 2020 IL 123989, ¶ 55. Thus, the accused does not

have to act with specific intent to threaten the victim (id. ¶ 50) but “must be

subjectively aware of the threatening nature of the speech” (id. ¶ 56). Although

criminal liability cannot be predicated solely on the effect on the listener, the effect

is something the court must consider. Id. ¶ 67 (citing Elonis v. United States, 575

U.S. at ___, 135 S. Ct. at 2011-12). Given the recency of that opinion, we need not

repeat its reasoning.

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¶ 28 Krysztopa testified that defendant asked her if she was “prepared to have the

blood of the sacrificial lambs on [her] hands that day.” (Emphasis added.) He asked

“if teachers were prepared to have a gun in their face.” He asked her “how long it

would take the police to get to Keith School should there be a shooting.” He

expressed familiarity with the school campus and asked how prepared she would

be “if he or anyone *** arrived on our campus with guns.” (Emphasis added.)

Although defendant disputes that he made some of these statements, the trial court

found Krysztopa to be the more credible witness. Notably, although we

independently review the record to assess the applicability of exceptions to first

amendment protection (Sullivan, 376 U.S. at 285), the trial court’s decision to

accept testimony remains entitled to great deference (Hartrich, 2018 IL 121636,

¶ 13; People v. Cunningham, 212 Ill. 2d 274, 280 (2004); People v. Phelps, 211 Ill.

2d 1, 7 (2005) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979))).

¶ 29 Regarding defendant’s mental state, the trial court found that he did not

specifically intend to threaten the school when it acquitted him of attempted

disorderly conduct. The court’s admonishment to defendant in convicting him of

disorderly conduct, however, makes clear that it found that he was subjectively

aware of the threatening nature of his speech: “You don’t expect that she’s going

to be alarmed and disturbed? You would be alarmed and disturbed. I submit that

you would be alarmed and disturbed if your child was there and you knew there

was such a call.”

¶ 30 We agree. Defendant pointed out what he perceived to be inadequacies in the

security measures Keith had taken by presenting graphic hypothetical scenarios

that, by design, communicated to the listener “a serious expression of an intent to

commit an act of unlawful violence to a particular individual or group of

individuals.” Black, 538 U.S. at 359; Ashley, 2020 IL 123989, ¶ 33. Whether

defendant intended to carry out the acts is irrelevant; he meant to intimidate

Krysztopa by impressing upon her “ ‘ “the possibility that the threatened violence

will occur.” ’ ” Ashley, 2020 IL 123989, ¶ 33 (quoting Black, 538 U.S. at 359-60

(quoting R.A.V., 505 U.S. at 388)). Indeed, defendant’s intention in presenting these

scenarios to Krysztopa was to alert her that they could happen in spite of the

measures Keith had taken. He conveyed his opinion about the insufficiency of these

measures by frightening Krysztopa.

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¶ 31 Regarding the effect on the listener, the trial court found that Krysztopa was

alarmed and disturbed. In this situation, the only way she would have been alarmed

and disturbed is if she perceived defendant’s questions and statements as a threat to

the school’s safety. These statements are objectively threatening, given the

circumstances in which they were made—to a school administrator in her official

capacity at a school full of students and teachers five days after a highly publicized

mass shooting and during an era in which school administrators must be concerned

with individuals who pose such threats. Krysztopa was reasonable in perceiving

these statements and questions as a threat.

¶ 32 In sum, defendant’s questions and statements were objectively threatening in

the circumstances in which they were given. Defendant was subjectively aware of

the threatening nature of his speech. Krysztopa reasonably perceived defendant’s

questions and statements as a threat. We find that his speech constituted a true threat

unprotected by the first amendment.

¶ 33 Because we find that defendant’s speech fell within the “true threats” exception,

we need not address the parties’ contentions regarding other exceptions to first

amendment speech protection. We next turn to the sufficiency of the evidence

presented.

¶ 34 Sufficiency of the Evidence

¶ 35 “When considering a challenge to a criminal conviction based upon the

sufficiency of the evidence, this court will not retry the defendant.” People v. Smith,

185 Ill. 2d 532, 541 (1999). Rather, a reviewing court will set aside a conviction

only where the evidence is so improbable or unsatisfactory that it creates a

reasonable doubt of the defendant’s guilt. People v. Collins, 106 Ill. 2d 237, 261

(1985). Where the defendant challenges the sufficiency of the evidence used to

convict him, the reviewing court must determine, considering the evidence in the

light most favorable to the prosecution, whether any rational trier of fact could have

found the essential elements met beyond a reasonable doubt. Smith, 185 Ill. 2d at

541. All reasonable inferences are drawn in favor of a finding of guilt. Cunningham,

212 Ill. 2d at 280.

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¶ 36 The trier of fact determines the credibility of the witnesses, decides what weight

to give their testimony, resolves conflicts in the evidence, and draws reasonable

inferences from that evidence. Phelps, 211 Ill. 2d at 7 (citing Jackson, 443 U.S. at

319). Credibility determinations are entitled to great weight. Smith, 185 Ill. 2d at

542. “In cases where the evidence is close ***, where findings of fact must be

determined from the credibility of the witnesses, a court of review will defer to the

trial court’s factual findings unless they are against the manifest weight of the

evidence.” Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 433 (1991); see also

Hartrich, 2018 IL 121636, ¶ 13 (citing Kalata, 144 Ill. 2d at 433). “[T]he testimony

of just one credible witness is sufficient for conviction.” City of Chicago v. Morris,

47 Ill. 2d 226, 230 (1970).

¶ 37 The State needed to prove that defendant knowingly engaged in an act in such

an unreasonable manner as to alarm or disturb another and to provoke a breach of

the peace. See 720 ILCS 5/26-1(a)(1) (West 2014). “ ‘[T]he gist of the offense is

not so much that a certain overt type of behavior was accomplished, as it is that the

offender knowingly engaged in some activity in an unreasonable manner which he

knew or should have known would tend to disturb, alarm or provoke others.’ ”

Raby, 40 Ill. 2d at 397 (quoting Ill. Ann. Stat., ch. 38, ¶ 26-1, Drafting Committee

Comments (Smith-Hurd 1967)). “The ‘type of conduct alone is not determinative,

but rather culpability is equally dependent upon the surrounding circumstances.’ ”

In re B.C., 176 Ill. 2d 536, 552 (1997) (quoting 720 ILCS 5/26-1, Committee

Comments-1961, at 337 (Smith-Hurd 1993)).

¶ 38 As we described above, defendant assailed Krysztopa with a battery of morbid

and morose questions and statements about killing schoolchildren and sticking guns

in teachers’ faces until the police arrived at his home. Although defendant disputes

that he made some of these statements, the trial court found Krysztopa to be the

more credible witness. Where the only witnesses to the substance of a conversation

are the two parties to that conversation and the trial court found one more credible

than the other, we decline to find that the court’s credibility finding was against the

manifest weight of the evidence, especially where that witness had taken

contemporaneous notes and the trial court expressly noted that it observed “her

demeanor while testifying.”

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¶ 39 The trial court found the elements of disorderly conduct met. It found the nature

of the questions defendant asked to be unreasonable, that Krysztopa was alarmed

and disturbed, that she reasonably felt that way, and that defendant’s questions and

statements provoked a breach of the peace by way of the lockdown and police

response. It found that defendant acted knowingly.

¶ 40 We agree. Defendant knowingly engaged in the series of questions and

statements that form the basis for the conviction in an unreasonable manner that he

knew or should have known would cause alarm to a school administrator. He

unreasonably subjected Krysztopa, in her official capacity as a school

administrator, to a rapid-fire succession of graphic questions and statements about

such things as shooting schoolchildren and sticking guns in teachers’ faces,

understandably alarming and disturbing her. His questions and statements directly

resulted in a breach of the peace by way of a school lockdown and police response.

We find that a rational trier of fact could conclude beyond a reasonable doubt that

defendant committed the offense of disorderly conduct. We do not find the evidence

so improbable or unsatisfactory that it creates a reasonable doubt about his guilt.

We thus find the evidence sufficient and affirm defendant’s conviction.

¶ 41 CONCLUSION

¶ 42 We find that a rational trier of fact could conclude that the elements of

disorderly conduct were proven beyond a reasonable doubt and that the evidence

was not so improbable or unsatisfactory as to create a doubt about defendant’s guilt.

We further find that defendant’s questions and statements constituted a true threat

such that his speech was not protected by the first amendment to the United States

Constitution. The statute was thus constitutional as applied to defendant’s conduct.

¶ 43 Affirmed.

¶ 44 JUSTICE NEVILLE, dissenting:

¶ 45 I agree with the court’s recitation of the law governing the analysis of whether

speech is exempt from first amendment protection because it falls within the “true

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threat” exception. I disagree, however, with the application of those controlling

principles to the facts presented in this case. Accordingly, I respectfully dissent.

¶ 46 As this court unanimously recognized in People v. Ashley, the true threat

exception encompasses “ ‘statements where 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.’ ” 2020 IL 123989, ¶ 33 (quoting Virginia v.

Black, 538 U.S. 343, 359 (2003)). When defendant’s speech is analyzed in

accordance with these strictures, it is clear to me that his communication with

Krysztopa does not constitute a true threat.

¶ 47 First, as Krysztopa’s own testimony establishes, defendant expressly stated that

his reason for calling was to inquire about enrolling his son at the school and to

explore its security protocols and approach to potentially violent situations. There

is no evidence to the contrary or even suggesting that he called for any other

purpose. When considered in the context of a parent’s inquiry about the transfer

and enrollment of his or her child, questions regarding school safety and security

measures are not inherently unreasonable. In addition, Krysztopa’s testimony

confirms that virtually all of defendant’s communications regarding the possible

enrollment of his son at the school and its safety procedures were expressed in the

form of questions—posing hypothetical situations and requesting answers as to

how such situations would be handled in order to protect the safety of all students.

The context of defendant’s communication—an inquiry about school enrollment—

and the hypothetical nature of many of his questions regarding student safety are

critical in assessing whether his speech constitutes a true threat. See Watts v. United

States, 394 U.S. 705, 707-08 (1969) (recognizing that, in distinguishing a threat

from constitutionally protected speech, the context of the speech, its conditional

nature, and the reaction of the listeners are determining factors). In my view, these

factors are not properly considered by the court’s opinion.

¶ 48 Second, though I agree that the effect on the listener must be considered (see

supra ¶ 30 (citing Ashley, 2020 IL 123989, ¶ 67); supra ¶ 31), I disagree with the

court’s conclusion that defendant’s questions and statements to Krysztopa were

“objectively threatening” (supra ¶ 31). If that were the case, Krysztopa’s perception

of defendant’s communication would be irrelevant. And even more important is the

fact that Krysztopa’s own description of defendant’s communication refutes the

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conclusion that it was a true threat. Her undisputed testimony confirms that

defendant did not make an immediate threat, and he never said he had a gun or that

he was coming to the school with a gun. Indeed, review of Krysztopa’s testimony

demonstrates that defendant never said that he intended to do anything at all.

Rather, defendant, a single father of a school-age child, expressed his concerns

about school safety and the security protocols in place in public schools that were,

in his view, inadequate to protect the students.

¶ 49 While defendant’s questions and comments may be seen as excessive and

troubling, they do not contain the requisite elements of a true threat. Here, the

court’s opinion equates defendant’s questions and statements about school

shootings and safety measures with a serious expression of an intent to commit an

act of unlawful violence to a particular individual or group of individuals. Compare

Ashley, 2020 IL 123989, ¶ 33, with supra ¶ 30. My colleagues in the majority agree

with the circuit court’s characterization of defendant’s communications as

unreasonable, alarming, and disturbing and, on that basis, find them to qualify as

true threats. But many types of communications may be unreasonable, alarming,

and disturbing without being true threats. What is missing in this case is evidence

of the critical element—a serious expression of intent to commit an act of unlawful

violence.

¶ 50 A single communication with an advancement director about the possible

transfer of his son and the school’s safety protocols served as the catalyst for the

prosecution. That communication—and the lack of any actual threat of violence—

is in stark contrast to the facts presented in Ashley. In that case, the defendant sent

numerous text messages specifically directed at the victim that included threats of

physical harm or death as well as a picture of a gun. Ashley, 2020 IL 123989, ¶¶ 9,

99. For example, the defendant in Ashley sent the victim text messages stating “ ‘I

love you too much to see u dead dummy. But [I] guarantee u this. I can make u

suffer. If [I] want to. *** You rite start to think more before u talk that s*** will

get u hurt or killed ***. *** I hope whoever you got it when I got guns’ ” Id. ¶ 9.

He also telephoned the victim and specifically threatened to “come over and kill”

her, and everyone else who was present at her apartment, with a gun. Id. ¶¶ 5, 100.

Here, none of defendant’s questions or comments pertaining to hypothetical

situations involving possible school shootings are even remotely comparable to the

threatening speech that was at issue in Ashley. Unfortunately, the majority does not

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acknowledge the substantial evidence of threatening speech presented in Ashley, let

alone explain how defendant’s speech meets the standard applied in Ashley.

¶ 51 While Krysztopa’s apprehension and reaction to defendant’s speech may be

perfectly understandable, this case considers only whether the State can criminalize

defendant’s pure speech as a “true threat.” Notably, this court and the United States

Supreme Court have narrowly construed the true threat exception to first

amendment protection for pure speech. Black, 538 U.S. at 359; Ashley, 2020 IL

123989, ¶ 33. And for good reason—the first amendment broadly protects the rights

of all citizens to engage in meaningful discussion and debate on important societal

issues, such as the question of whether a school is adequately protecting its students

from the dangers of a potential mass shooting. Many of the complicated problems

facing our society have the potential to result in serious debate and, at times,

emotional rhetoric. Absent a serious expression of an intent to commit an act of

unlawful violence, however, even the most passionate speech cannot be

criminalized as a true threat without violating the first amendment. Black, 538 U.S.

at 359; Ashley, 2020 IL 123989, ¶ 33; see also Watts v. United States, 394 U.S. 705,

707 (1969) (per curiam) (explaining that a statute that “makes criminal a form of

pure speech must be interpreted with the commands of the First Amendment clearly

in mind. What is a threat must be distinguished from what is constitutionally

protected speech.”).

¶ 52 Nonetheless, the majority has allowed the State to use the disorderly conduct

statute to criminalize defendant’s speech because Krysztopa was alarmed or

disturbed by his speech. In other words, the majority has effectively eliminated the

well-settled requirement that a “true threat” include a serious expression of an intent

to commit an act of unlawful violence. Black, 538 U.S. at 359; Ashley, 2020 IL

123989, ¶ 33. The majority’s watered-down interpretation of a “true threat” has

never been endorsed by the United States Supreme Court and, until today’s

decision, not by this court either.

¶ 53 Instead, we have long recognized that the disorderly conduct statute should not

be used to punish persons “ ‘merely for peacefully expressing unpopular views.’ ”

People v. Raby, 40 Ill. 2d 392, 397 (1968) (quoting Cox v. Louisiana, 379 U.S. 536,

551 (1965)). The result reached in the majority’s opinion, however, criminalizes

defendant’s speech because certain of his questions or statements were viewed by

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Krysztopa as alarming or disturbing. It is worth emphasizing that, according to

Krysztopa’s undisputed testimony, defendant did not make any threats to her, and

he did not state that he had a gun or intended to come to the school. The majority’s

analysis ignores the bare facts set forth in Krysztopa’s testimony. Contrary to the

court’s unfounded conclusion, Krysztopa did not perceive defendant’s

communication as a threat.

¶ 54 Based on the evidence in the record, defendant’s questions and statements may

be both alarming and disturbing, but they are not true threats because they do not

contain a serious expression of an intent to commit an act of unlawful violence. See

Black, 538 U.S. at 359; Ashley, 2020 IL 123989, ¶ 33. Because defendant’s

statements do not qualify as a true threat, they do not fall into the exception and are

not excluded from first amendment protection. Since his comments are protected

speech, they cannot be prosecuted under the disorderly conduct statute. I would find

the disorderly conduct statute to be unconstitutional as applied to defendant.

¶ 55 Consequently, I respectfully dissent.

¶ 56 JUSTICE KILBRIDE joins in this dissent.

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