We granted this interlocutory appeal to address whether the former
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. Ally’all ain’t going to graduatе 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 thechopper out and make Columbine look childish.
Shortly after the statement was published, a resource оfficer 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 аnother “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 Majоr’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 interloсutory 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 prоsecution for protected speech. Generally, “the 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,
However, content-based laws regulating speech that are not included in these narrow categories of unprotected speech are subject to “exacting scrutiny.” (Citаtion and punctuation omitted.) West v. State,
Here, the State clearly seeks to regulate threats to commit any crime of violence. Such a prohibition “ ‘protects 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.’ ” (Citation omitted.) Black,
“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,
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 appeаrs, 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,
The statute in question read as follows:
A person commits the offense of a terroristic threat when he or she threatens to commit any crime of violence, to release any hazardous substance, as such term is defined in Code Section 12-8-92, or to burn or damage property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience. . . .
Former OCGA § 16-11-37 (a). The plain language of the statute prohibits threats to commit any crime of violence with either the purpose of terrorizing another or in reckless disregard of the risk of causing such terror or inconvenience. While Majоr concedes that the portion of the statute regulating purposeful threats is constitutional,
It is well established that recklessness requires a person to act with “conscious disregard for the safety of others,” Currid v. DeKalb State Court Probation Dept.,
For the same reasons, we reject Major’s argument that communicating a threat of violence in a reckless manner does not meet the definition of a true threat. The United States Supreme Court has defined a true threat to include “those statements where the speaker meаns to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” Black,
Becаuse former OCGA § 16-11-37 (a) requires that a person communicate a threat of violence in a purposeful or reckless manner, both of which are true threats and not protected speech, it does not violate the First Amendment’s right to free speech. Accordingly, we find that the reckless mens rea does not render the former version of OCGA § 16-11-37 (a) unconstitutionally overbroad.
2. Void for Vagueness
Major further contends that the statute’s reckless scienter renders the statute void because it lacks a clear and discernible definition as to what constitutes a threat. It is well established that “[t]he void for vagueness doctrine of the due process clause requires that a challenged statute or ordinance give a person of ordinary intelligence fair warning that specifiс conduct is forbidden or mandated and provide sufficient specificity so as not to encourage arbitrary and discriminatory enforcement.” Parker v. City of Glennville,
Once again, Major alleges that the statute focuses on the listener’s reaction to the communicated threatening language and not the intent of the speaker, muddying the lines of what is, and what is not, constitutionally protected speech. However, the statute can clearly “be read and understood by a person of ordinary intelligence seeking to avoid its violation.” Lanthrip v. State,
3. As-Applied Challenge
Finally, Major contends that the statute is unconstitutional as applied to him. Namely, he argues that, since he injected the phrase “Lord, please save me” into the post, the statement was therapeutic and/or religious in nature and did not reflect an intent to commit a violent act. “An as-applied challenge ‘addresses whether a statute is unconstitutional on the facts of a particular case or to a partiсular party.’ ” (Citation and punctuation omitted.) Hertz v. Bennett,
The crux of Major’s argument is that he did not possess the requisite intent in order for his Facebook post to qualify as a
Judgment affirmed.
Notes
Because the incident at issue took place in September 2014, we revie w the version of the statute in effect at that time.
Though both the trial court and the State relied on this Court’s decision in Lanthrip v. State,
Though we find Justice Alito’s concurrence instructive in this matter, we find Major’s reliance on the majority opinion in Elonis to be misplaced. In Elonis, the United States Supreme Court focused on the construction of a federal statute criminalizing the communication of a threat via interstate commerce, which, unlike the Georgia statute before this Court, did not include any mens rea requirement. The Elonis majority specifically declined to address any First Amendment issue, instead holding that criminal liability could not be imposed merely based upon the perception of the reasonable person, and must require a jury to look at the mental state of the speaker defendant.
Major does not raise, and we do not address, whether the facts as stipulatedby the parties — including his Facebook post as quoted above — is insufficient as a matter of law to establish a violation of former OCGA § 16-11-37 (a).