MELTON, Presiding Justice.
a jury trial, David Justin Freeman was found guilty on one
count of disorderly conduct pursuant to OCGA § 16-11-39
(a) (1). That statute provides in relevant part that
[a] person commits the offense of disorderly conduct when
such person . . . [a]cts in a violent or tumultuous manner
toward another person whereby such person is placed in
reasonable fear of the safety of such person's life,
limb, or health.
appeal, Freeman contends that his conviction cannot stand
because OCGA § 16-11-39 (a) (1) is unconstitutionally
vague and overbroad. For the reasons that follow, we reject
Freeman's facial challenge to OCGA § 16-11-39 (a)
(1) and conclude that Freeman's conviction in this case
must be reversed, as the behavior for which Freeman was
prosecuted falls outside of the applicable scope of the
statute as properly construed.
in the light most favorable to the jury's verdict, the
evidence presented at trial revealed that, on August 3, 2014,
Freeman attended a church service at the Flowery Branch
campus of 12 Stones Church, where at least 250 guests were in
attendance. During a portion of the service, Pastor Jason
Berry asked any teachers present to stand and be recognized
so that the congregation could pray for them to have a
successful school year. About fifty people stood up, and
Freeman, who was at the back of the church, stood up as well.
When he stood up, Freeman raised his middle finger in the air
and stared angrily at the pastor. The pastor testified that
he felt afraid for his own safety at that time. Pastor Berry
finished the prayer for the teachers and dismissed the room.
As people were leaving, Freeman began yelling about sending
children off to the evil public schools and having them
raised by Satan. As Freeman yelled, the music minister at the
church turned up the music in an effort to drown him out, and
Freeman then left the sanctuary. Pastor Berry followed
Freeman to speak with him in the front lobby of the church,
where he told Freeman that he should have a conversation with
Pastor Berry rather than shout in the middle of a church
service. Freeman said that Pastor Berry should be ashamed of
himself and that Freeman was going to leave, and then Freeman
left the church with his family.
respect to Freeman's claim that OCGA § 16-11-39 (a)
(1) is unconstitutional on its face, "[a]s an appellate
court, we have a duty to construe a statute in a manner which
upholds it as constitutional, if that is possible."
(Citation omitted.) Cobb Cty. Sch. Dist. v. Barker,
271 Ga. 35, 37 (1) (518 S.E.2d 126) (1999). With this
principle in mind, we address Freeman's claims that OCGA
§ 16-11-39 (a) (1) is both unconstitutionally vague in
violation of Due Process requirements and overbroad in
violation of the First Amendment.
statute is unconstitutionally vague if it fails to give a
person of ordinary intelligence notice of the conduct which
is prohibited and encourages arbitrary and discriminatory
enforcement. [Cit.]" Johnson v. State, 264 Ga.
590, 591 (1) (449 S.E.2d 94) (1994). In interpreting the
language of OCGA § 16-11-39 (a) (1) to determine whether
the statute is unconstitutionally vague, "we apply the
fundamental rules of statutory construction that require us
to construe [the] statute according to its terms, to give
words their plain and ordinary meaning, and to avoid a
construction that makes some language mere surplusage."
(Citations omitted.) Slakman v. Continental Cas.
Co., 277 Ga. 189, 191 (587 S.E.2d 24) (2003).
contends, primarily, that because a person can be found
guilty of disorderly conduct when he or she "[a]cts in a
. . . tumultuous manner, " and OCGA § 16-11-39 (a)
(1) does not define the term "tumultuous, " he or
she is not sufficiently informed about what conduct is
prohibited by the statute. However, "when the phrase
challenged as vague has a commonly understood meaning, then
it is sufficiently definite to satisfy due process
requirements." Bradford v. State, 285 Ga. 1, 3
(2) (673 S.E.2d 201) (2009). Here, at the time that the
Legislature enacted OCGA § 16-11-39 (a) (1) in 1995,
"tumultuous" had the common meaning of being
"disorderly, turbulent[, or] uproarious" The
New Shorter Oxford Englisg Dictionary (Vol. 2, 1993).
See also Johnson, supra, 264 Ga. at 591 (1)
(using standard dictionary definition of "contact"
to demonstrate that stalking statute was not
unconstitutionally vague). A person of common intelligence
can ascertain from the word "tumultuous" that he or
she may be found guilty of disorderly conduct under OCGA
§ 16-11-39 (a) (1) when that person acts in a
disorderly, turbulent, or uproarious manner towards another
person, which places the other person in reasonable fear for
his or her safety. Johnson, supra. See also
Rose v. Locke, 423 U.S. 48, 49, 50 (96 S.Ct. 243, 46
L.Ed.2d 185) (1975) ("[I]n most English words and
phrases there lurk uncertainties. . . . All the Due Process
Clause requires is that the law give sufficient warning that
men may conduct themselves so as to avoid that which is
forbidden") (citation, footnote, and punctuation
omitted); Wilson v. State, 245 Ga. 49, 53 (262
S.E.2d 810) (1980) ("A criminal statute is sufficiently
definite if its terms furnish a test based on normal criteria
which men of common intelligence who come in contact with the
statute may use with reasonable safety in determining its
command") (citation omitted). OCGA § 16-11-39 (a)
(1) is not unconstitutionally vague due to its use of the
term "tumultuous, " as the statute provides
sufficient notice to persons of ordinary intelligence of the
prohibited conduct and does not encourage arbitrary and
regard to Freeman's challenge to OCGA § 16-11-39 (a)
(1) as being unconstitutionally overbroad, "[a] statute
that is clear about what it prohibits can nevertheless be
unconstitutionally overbroad if it stifles expression or
conduct that is otherwise protected by the
Constitution." (Citation omitted.) Fielden,
supra, 280 Ga. at 445. Indeed, "[i]f there is a
bedrock principle underlying the First Amendment, it is that
the Government may not prohibit the expression of an idea
simply because society finds the idea itself offensive or
disagreeable." Texas v. Johnson, 491 U.S. 397,
414 (IV) (109 S.Ct. 2533, 105 L.Ed.2d 342) (1989).
Accordingly, our "first task is to ascertain whether the
statute reaches a substantial amount of constitutionally
protected conduct. However, a statute should not be deemed
facially invalid unless it is not readily subject to a
narrowing construction, and its deterrent effect on
legitimate expression is both real and substantial."
(Citations and punctuation omitted.) State v.
Miller, 260 Ga. 669 (398 S.E.2d 547) (1990).
explained more fully below, we find that, when properly
construed, OCGA § 16-11-39 (a) (1) does not reach any,
let alone a substantial amount of, constitutionally protected
conduct. As mentioned previously, a person may only be found
guilty of disorderly conduct under OCGA § 16-11-39 (a)
(1) based on allegedly tumultuous conduct when he or she
"[a]cts in a . . . tumultuous manner toward another
person whereby such person is placed in reasonable fear of
the safety of such person's life, limb, or health."
The statute on its face contains no prohibition against any
particular message being communicated, and it makes clear
that the level of "tumultuous" behavior necessary
to give rise to a sustainable charge must involve
acts that would place another person in reasonable
fear for his or her safety. In this sense, it could be argued
that the statute applies only to physical "acts"
that do not implicate speech at all. State v.
Cantwell, 66 Ore.App. 848, 850-852 (676 P.2d 353) (1984)
(Disorderly conduct statute criminalizing "fighting or .
. . violent, tumultuous or threatening behavior" was not
unconstitutionally overbroad, as the statutory language
"describe[d] physical acts of aggression, not
speech"). However, we believe that, because there are
several tumultuous activities that could be used or
interpreted as a form of free expression, the scope of OCGA
§ 16-11-39 (a) (1) must be considered with those
possibilities in mind. In this regard, to the extent that
there are tumultuous acts that would ostensibly support a
disorderly conduct charge under OCGA § 16-11-39 (a) (1)
and that could also constitute or involve an expressive act,
the expression at issue would still have to be of the kind
that would place a person in reasonable fear for his or her
"life, limb, or health" before a defendant could be
found guilty of disorderly conduct under OCGA § 16-11-39
(a) (1). As many other jurisdictions have consistently found,
the type of expression that would give rise to such a
reasonable fear would not be constitutionally protected;
rather, it would have to involve "fighting words"
or a "true threat, " which are the specific forms
of expression that fall outside of the realm of
constitutional protection and that could give rise to such
reasonable fears. See Chaplinsky v. New Hampshire,
315 U.S. 568 (62 S.Ct. 766, 86 LE 1031) (1942); Virginia
v. Black, 538 U.S. 343 (III) (A) (123 S.Ct. 1536, 155
L.Ed.2d 535) (2003). See also, e.g., Commonwealth v.
Mastrangelo, 489 Pa. 254, 261 (414 A.2d 54) (1980)
(Pennsylvania disorderly conduct statute was constitutional,
as the statute could "not be used to punish anyone
exercising a protected First Amendment right, " but
could be used against a defendant who used fighting words);
Carr v. Bradley, No. 2:07-cv-01053, 2009 U.S. Dist.
LEXIS 27065 (II) (A) (S.D. Ohio Apr. 2, 2009)
("Ohio's disorderly conduct statute has been
narrowly construed by the Ohio Supreme Court so as to
maintain its constitutionality. For speech to be the basis
for a disorderly conduct charge, the speech must amount to
"fighting words" as that term is used in First
Amendment jurisprudence"); Nolan v. Krajcik,
384 F.Supp.2d 447 (III) (C) (1) (D. Mass. 2005) (statute
criminalizing "idle and disorderly conduct"
narrowly construed to apply to unprotected "fighting
words" rather than constitutionally protected speech).
We agree that a narrow interpretation of OCGA § 16-11-39
(a) (1) such as the one that has been adopted in other
jurisdictions is appropriate here. Accordingly, we conclude
that OCGA § 16-11-39 (a) (1) is not unconstitutionally
overbroad, because "the statute only can reach conduct
which involves no lawful exercise of a First Amendment
right." Nolan v. Krajcik, supra, at
(III) (C) (1). Specifically, as applied to expressive
conduct, the statute only reaches expressive conduct
that amounts to "fighting words" or a "true
Because there was no showing here that Freeman's act of
silently raising his middle finger from the back of the
church during the church service constituted "fighting
words" or a "true threat" that would amount to
a tumultuous act, his conviction for disorderly conduct under
OCGA § 16-11-39 (a) (1) cannot stand. Freeman was
with the offense of DISORDERLY CONDUCT for the said accused
person, on or about the 3rd day of August, 2014,
did act in a . . . tumultuous manner toward Jason Berry
whereby said victim was placed in reasonable fear of the
safety of said person's life, limb or health by
screaming, shouting or using obscene gestures.
(Emphasis supplied.) The alleged obscene gesture in this case
was the raising of Freeman's middle finger from the back
of the church. However, a raised middle finger, by itself,
does not, without more, amount to fighting words or a true
threat. As explained by the Supreme Judicial Court of
We recognize that the raising of the middle finger as a form
of insult has a long, if not illustrious, history dating back
to ancient Greece. See Robbins, Digitus Impudicus: The
Middle Finger and the Law, 41 U.C. Davis L. Rev. 1403,
1413 (2008). Like its verbal counterpart, when it is used to
express contempt, anger, or protest, it is a form of
expression protected by the First Amendment. See, e.g.,
Sandul v. Larion, 119 F.3d 1250, 1255 (6th Cir.
1997) (passenger yelling "f [_ _]k you" and
extending middle finger while passing group of protestors
entitled to First Amendment protection); Duran v.
Douglas, 904 F.2d 1372, 1374, 1378 (9th Cir. 1990)
("obscene gesture" and profanities directed to
police, while "[i]narticulate and crude, "