BRIGGS v. THE STATE
S06A1146
Supreme Court of Georgia
NOVEMBER 28, 2006
281 Ga. 329 | 638 S.E.2d 292
parties’ assets and liabilities and of their disparate earning power, we find the evidence sufficient to authorize the verdict.
Judgment affirmed. All the Justices concur.
DECIDED NOVEMBER 28, 2006.
Shaffer, Raymond & Dalton, Philip T. Raymond III, Susan D. Raymond, for appellant.
Carmel W. Sanders, for appellee.
S06A1146. BRIGGS v. THE STATE. (638 SE2d 292)
We granted an interlocutory appeal in this case to determine whether
Defendant, who was found in possession of 52 individually wrapped compact discs that allegedly bear unauthorized reproductions of recorded material, was indicted for violating
It is unlawful for any person . . . to sell; distribute; circulate; offer for sale, distribution or circulation; or possess for the purposes of sale, distribution or circulation any phonograph record, disc, wire, tape, videotape, film, or other article on which sounds or visual images have been transferred unless such phonograph record, disc, wire, tape, videotape, film or other article bears the actual name and address of the transferor of the sounds or visual images in a prominent place on its outside face or package.
Defendant attacked the statute and moved to dismiss the indictment on constitutional and federal preemption grounds. In granting defendant‘s application for interlocutory appellate review, we posed these questions: (1) Did the trial court err in its determination that
“The uncertainty in a statute which will amount to a denial of due process of law is not the difficulty of ascertaining whether close cases fall within or without the prohibition of the statute, but whether the standard established by the statute is so uncertain that it cannot be determined with reasonable definiteness that any particular act is disapproved; and a criminal statute is sufficiently definite if its terms furnish a test based on knowable criteria which men of common intelligence who come in contact with the statute may use with reasonable safety in determining its command.” 16 AmJur2d 954, § 552.
Reading the statute as a whole, as we are bound to do, see Lindsey v. State, 277 Ga. 772, 773 (596 SE2d 140) (2004) (in testing constitutionality, statute is examined in its entire context), we find it to be sufficiently definite to satisfy due process standards. It is true, as defendant points out, that the statute does not itself define the term “transferor.” However, we are confident that, as used in the statute, the term is clear and straightforward.
A “transferor” is one who conveys title or property to another. Black‘s Law Dictionary (6th ed. 1990). In the context of the statute, a “transferor of the sounds” is the individual who conveyed the sounds by transferring them to the article in question. Thus, the statute plainly prohibits the sale, or possession for the purposes of sale, of an article that does not prominently display the name and address of the individual (or entity) who transferred the sounds to the article. The prohibition against excessive vagueness does not invalidate every statute which a reviewing court believes could have been drafted with greater precision. Many statutes will have some inherent vagueness for “[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.
Lindsey v. State, supra. The statute meets that due process requirement. See also State v. Gale Distributors, 349 S2d 150 (Fla. 1977); People v. Zakarian, 460 NE2d 422 (121 Ill. App. 3d 968) (1984).
2. Unconstitutionally overbroad. Defendant contends the statute is overbroad because, although it may properly prohibit criminal conduct, it simultaneously chills constitutionally protected speech. In this regard, defendant argues that the statute is a content specific regulation on pure speech; that, therefore, the statute is subject to strict scrutiny; and that the statute was not narrowly tailored to achieve its goal because it compels an artist or transferor to disclose information he may wish to keep private. Defendant‘s contention cannot be sustained because the statute does not impinge upon pure speech. At most, the statute regulates a combination of commercial conduct and speech. Compare McIntyre v. Ohio Elections Comm., 514 U. S. 334 (115 SC 1511, 131 LE2d 426) (1995) (anti-anonymity provision of political campaign literature was an unconstitutional limitation on pure speech) with Anderson v. Nidorf, 26 F3d 100 (9th Cir. 1994) (California statute which criminalizes the selling of recordings without a label did not regulate pure speech).
Under the test enunciated in United States v. O‘Brien, 391 U. S. 367, 376 (88 SC 1673, 20 LE2d 672) (1968), the government may regulate conduct that may have both speech and “nonspeech” elements if the regulation furthers a substantial governmental interest that is unrelated to the suppression of free expression; and the incidental restriction on First Amendment freedom is no greater than necessary to further the governmental interest.
State v. Miller, 260 Ga. 669, 671 (398 SE2d 547) (1990).
3. Federal preemption. State law rights that are the equivalent of those protected under the federal copyright law are preempted.
[A] right which is “equivalent to copyright” is one which is infringed by the mere act of reproduction, performance, distribution or display. . . . If under state law the act of reproduction, performance, distribution or display, . . . will in itself infringe the state created right, then such right is preempted. But if other elements are required, in addition to or instead of, the acts of reproduction, performance, distribution or display, in order to constitute a state created cause of action, then the right does not lie “within the general scope of copyright,” and there is no preemption.
Collezione Europa U. S. A. v. Hillsdale House, 243 FSupp.2d 444, 449 (M.D. N.C. 2003).
The statute in question,
Judgment affirmed. All the Justices concur, except Hunstein, P. J., and Carley, J., who concur specially, and Sears, C. J., and Melton, J., who dissent.
HUNSTEIN, Presiding Justice, concurring specially.
I agree with the dissent that the statute is facially overbroad and that its overbreadth is “not only real but substantial as well, judged in relation to the law‘s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U. S. 601, 615 (93 SC 2908, 37 LE2d 830) (1973). However, unlike the dissent, I would not needlessly cast
the legislative intent and save it by means of a narrowing construction that would limit its application to media that has been stolen or “pirated.” Because the majority applies this narrowed construction to the statute, albeit without acknowledging that it is limiting the statute‘s scope to avoid overbreadth problems, I concur specially in the judgment of the majority opinion.
As we have recently noted, the “effect of holding a statute to be facially overbroad is that enforcement is totally forbidden until and unless a limiting construction so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. [Cit.]” State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006). In Fielden the Court found overbroad a statute that made it a misdemeanor offense to “recklessly or knowingly commit[ ] any act which may reasonably be expected to prevent or disrupt a lawful meeting.” Id. at 444. The statute was flawed because it did not require any actual disruption or prevention of a lawful meeting and did not require the
The dissent in this case now asserts that
existing statutory language to avoid its unintended impact on constitutionally-protected anonymous speech. By interpreting
Our judicial responsibility requires us to consider the legislature‘s intent in enacting the law and to construe the statute to give effect to that intent when possible. This role means that we must give a narrowing construction to a statute when possible to save it from constitutional challenge. [Cits.]
Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001). Therefore, because as a matter of reasonable judicial construction I would apply a narrowing construction to
CARLEY, Justice, concurring specially.
I concur in the majority‘s holding that
There is no disagreement over the proper analysis to be applied in cases in which a statute is challenged on grounds that it is unconstitutionally over broad. “[B]efore considering whether [a] statute that affects protected speech is [unconstitutionally] over broad, it must be determined if it can be narrowly construed by this Court.” Howard v. State, 272 Ga. 242, 244 (1) (527 SE2d 194) (2000) (citing Cunningham v. State, 260 Ga. 827, 831 (400 SE2d 916) (1991)). In Fielden, supra, I did not, as Presiding Justice Hunstein states on p. 333 of her special concurrence, take a “position[ ]
constitutional challenge by means of a narrow construction . . . .” State v. Fielden, supra at 451 (Carley, J., dissenting). However, a majority of the Court in that case held otherwise, concluding that the provision could not be narrowly construed so as to avoid being stricken as unconstitutional.
When the acknowledged test for determining constitutionality as against a challenge for over broadness is applied in this case, I agree with Presiding Justice Hunstein‘s observation on pp. 333-334 of her special concurrence that the purpose of
is so palpable that the majority opinion construes the statutory language accordingly, although without acknowledging that its interpretation constitutes a narrowing of the statute. Achieving this constitutional purpose . . . requires narrowing the scope of the existing statutory language to avoid its unintended impact on constitutionally-protected anonymous speech. By interpreting
OCGA § 16-8-60 (b) in this manner, the Court is fulfilling its proper role. . . .
Thus, the majority correctly affirms the judgment of the trial court.
MELTON, Justice, dissenting.
A content-neutral statute or ordinance, i.e., one that is justified without reference to the content of the regulated
speech may limit speech if the law: (1) furthers an important governmental interest; (2) is unrelated to the suppression of speech; and (3) its incidental restriction of speech is no greater than essential to further the important governmental interest.
(Punctuation omitted.) McKenzie v. State, 279 Ga. 265 (626 SE2d 77) (2005). See also United States v. O‘Brien, 391 U. S. 367, 376 (88 SC 1673, 20 LE2d 672) (1968). Furthermore, “[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.” State v. Fielden, 280 Ga. 444, 445 (629 SE2d 252) (2006); Johnson v. State, 264 Ga. 590 (1) (449 SE2d 94) (1994).
In Talley v. California, supra, the United States Supreme Court struck down a remarkably similar ordinance criminalizing the anonymous distribution of pamphlets, irrespective of the content therein.5 In doing so, the Supreme Court emphasized the importance of anonymous speech in our society, stating: “Anonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind. Persecuted groups and sects from time to time throughout history have been able to criticize oppressive practices either anonymously or not at all. . . . It is plain that anonymity has sometimes been assumed for the most constructive purposes.” Id. at 64-65. Although California maintained that the ordinance in
question in that case was enacted to prevent fraud, false advertising, and libel, the Supreme Court rejected this argument because the ordinance actually contained no such limitation. As such, the ordinance was subject to the infirmity that its mandate requiring the identification of a hand-bill‘s author and “fear of reprisal might deter perfectly peaceful discussions of public matters of importance.” Id. at 65.
The only difference in the California ordinance struck down in Talley and the criminal statute in this case is the manner of communication of the speech. In Talley, the speech was written, and in this case it is recorded. For purposes of the constitutional analysis, however, this is a distinction without a difference, as both laws attempt to prohibit a substantial amount of protected speech. In application,
Although this Court has the authority to narrowly interpret a statute to avoid constitutional infirmities, there is no way to do so in this case because we would have to substantially revise
Under the doctrine of separation of powers, “statutory construction belongs to the courts, legislation to the legislature. We can not add a line to the law.” (Citations and punctuation omitted.) Etkind v. Suarez, 271 Ga. 352, 353 (1) (519 SE2d 210) (1999). To make
I am authorized to state that Chief Justice Sears joins in this dissent.
DECIDED NOVEMBER 29, 2006.
John W. Donnelly, for appellant.
Kenneth W. Mauldin, District Attorney, C. Rebecca Smith, Assistant District Attorney, for appellee.