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Major v. State

Supreme Court of Georgia

May 15, 2017


          HUNSTEIN, Justice.

         We granted this interlocutory appeal to address whether the former[1]version of OCGA § 16-11-37 (a), Georgia's Terroristic Threats statute, is unconstitutionally overbroad and vague. For the reasons that follow, we affirm the judgment of the trial court that the statute is constitutional.

         The stipulated facts show that in September 2014 Appellant Devon Major, who was a student at Lanier Career Academy, posted the following message on his Facebook page:

Bruh, LCA ain't a school. Stop coming here. All y'all ain't going to graduate early. Why? Because there are too many of y'all f***ers to even get on a computer. I swear, and there's so much drama here now, Lord, please save me before, o (sic) get the chopper out and make Columbine look childish.

         Shortly after the statement was published, a resource officer at Major's school saw the post and contacted law enforcement. Officers then contacted Major who admitted posting the statement. He was arrested and indicted for threatening to commit a crime of violence against another "in reckless disregard of causing such terror" in violation of OCGA § 16-11-37.

         Major subsequently filed a pre-trial demurrer/motion to quash challenging the indictment, alleging that former OCGA § 16-11-37 (a) was unconstitutional on its face and as applied to him because it violated Major's First Amendment right to free speech and his Fourteenth Amendment right to due process. The trial court denied the motion, finding the statute to be constitutional, but granted Major a certificate of immediate review. Major filed an application for interlocutory appeal, which we granted inquiring as to whether former OCGA § 16-11-37 (a) is unconstitutionally void for vagueness and overbreadth because it permits conviction based on recklessness.

         1. Overbreadth

         Major first argues that former OCGA § 16-11-37 (a) is overbroad as it unconstitutionally permits prosecution for protected speech. Generally, "[t]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." (Citation and punctuation omitted.) Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (122 S.Ct. 1700, 152 L.Ed.2d 771) (2002); accord Final Exit Network, Inc. v. State of Georgia, 290 Ga. 508 (722 S.E.2d 722) (2012). The United States Supreme Court has recognized a few narrowly defined forms of expression that are categorically excluded from First Amendment protection, see United States v. Alvarez, 567 U.S. 709 (132 S.Ct. 2537, 183 L.Ed.2d 574) (2012) (enumerating categories of historically unprotected speech, such as defamation, obscenity, and fraud), which include the communicating of "true threats, " see Virginia v. Black, 538 U.S. 343 (III) (A) (123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

         However, content-based laws regulating speech that are not included in these narrow categories of unprotected speech are subject to "exacting scrutiny." (Citation omitted.) West v. State, 300 Ga. 39, 40 (793 S.E.2d 57) (2016). Indeed, "[s]uch restrictions are only valid if they are 'narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.'" Id. (citing Broadrick v. Oklahoma, 413 U.S. 601, 611 (93 S.Ct. 2908, 37 L.Ed.2d 830) (1973); State v. Fielden, 280 Ga. 444 (629 S.E.2d 252 (2006)).

         Here, the State clearly seeks to regulate threats to commit any crime of violence. Such a prohibition "'protect[s] individual[s] 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.'" Black, 538 U.S. at 360. See also R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 388 (112 S.Ct. 2538, 120 L.Ed.2d 305) (1992) ("threats of violence are outside the First Amendment"). Furthermore, the government may regulate or completely ban speech proposing illegal activity. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (III) (102 S.Ct. 1186, 71 L.Ed.2d 362) (1982). "We nonetheless have the obligation to ensure that, in its zeal to promote this worthy aim, our legislature has not unwittingly curtailed legitimate modes of expression in a real and substantial way." Scott v. State, 299 Ga. 568, 575 (788 S.E.2d 468) (2016). "With these principles in mind, we begin our analysis, applying a de novo standard of review to the judgment of the trial court." West, 300 Ga. at 42.

         "To assess the extent of a statute's effect on protected expression, a court must determine what the statute actually covers. Accordingly, the first step in any overbreadth analysis is to construe the statute in question." (Citations omitted.) Scott, 299 Ga. at 570. Pursuant to the rules of statutory construction, we

presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its plain and ordinary meaning, we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173 (1) (a) (751 S.E.2d 337) (2013). If the statutory text is "'clear and unambiguous, ' we attribute to the statute its plain meaning, and our search for ...

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