Major v. State, 301 Ga. 147

Background

In Sept. 2014 Devon Major posted a Facebook message referencing "get the chopper out and make Columbine look childish." A school resource officer reported it and Major admitted posting the message.
Major was indicted under the former OCGA § 16-11-37(a) for threatening to commit a crime of violence “with the purpose of terrorizing another or in reckless disregard of the risk of causing such terror or inconvenience.”
Major filed a pretrial demurrer/motion to quash arguing the statute was facially and as-applied unconstitutional under the First and Fourteenth Amendments for being overbroad and void for vagueness because it allowed conviction based on recklessness.
The trial court denied relief; Major obtained interlocutory review. The Georgia Supreme Court granted appeal limited to whether the statute’s reckless mens rea makes it unconstitutionally overbroad or vague.
The court reviewed statutory text, mens rea definitions, and First Amendment principles, then affirmed the trial court: the statute (as written in 2014) was neither overbroad nor unconstitutionally vague as applied to Major.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Overbreadth: Does allowing convictions based on recklessness criminalize protected speech?	Major: Recklessness focuses on the listener’s perception and lacks specific intent, thus punishing protected speech and true threats require specific intent.	State: Recklessness requires conscious disregard (a culpable mental state of the speaker); reckless threats fit within the “true threat” category and are unprotected.	Court: Reckless mens rea requires speaker’s state of mind and fits within true threats; not overbroad.
Vagueness: Does the reckless scienter make the statute unconstitutionally vague?	Major: Statute’s focus on recipient reaction blurs what speech is forbidden and invites arbitrary enforcement.	State: Statute plainly proscribes threatening to commit violence in purposeful or reckless manner; recklessness is a well-defined mens rea.	Court: A person of ordinary intelligence can understand the statute; not void for vagueness.
As-applied challenge: Was statute unconstitutional as applied to Major’s Facebook post?	Major: His post included "Lord, please save me," suggesting therapeutic/religious content and lack of intent to threaten.	State: Intent is a factual question for the jury; the stipulated facts could support the required mens rea.	Court: As-applied challenge rejected; question of intent is for the jury and the statute was not applied unconstitutionally here.
Scope of First Amendment protection: Do purposeful and reckless threats fall outside First Amendment protection?	Major: Recklessness is insufficient to constitute a true threat under First Amendment.	State: Both purposeful and reckless threats involve conscious awareness that others could regard statements as threats; thus unprotected.	Court: Both purposeful and reckless threats are "true threats" and unprotected.

Key Cases Cited

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002) (government generally cannot restrict speech based on content)
Virginia v. Black, 538 U.S. 343 (2003) (definition of "true threats" as unprotected speech)
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377 (1992) (threats of violence lie outside First Amendment protection)
Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) (government may regulate speech proposing illegal activity)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine and narrow tailoring requirement)
Elonis v. United States, 575 U.S. 723 (2015) (mens rea and requirement to consider speaker’s mental state in threat prosecutions)
Lanthrip v. State, 235 Ga. 10 (1975) (Georgia precedent on threatening communication)
Scott v. State, 299 Ga. 568 (2016) (statutory construction and overbreadth analysis principles)