Major v. StateMajor v. State
- Reporters:
- , , ,
- Before:
- Hunstein
We granted this interlocutory appeal to address whether the former1 version of
The stipulаted 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 graduate eаrly. 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 offiсer 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
Major subsequently filed a pre-trial demurrer/motion to quash challenging the indictment, alleging that former
1. Overbreadth
Major first argues that former
However, content-based laws regulating speech that are not included in these narrow categories of unprotected speech are subject to “exacting scrutiny.” (Citation and punсtuation omitted.) West v. State, 300 Ga. 39, 40 (793 SE2d 57) (2016). Indeed, “[sjuch 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 SCt 2908, 37 LE2d 830) (1973); State v. Fielden, 280 Ga. 444 (629 SE2d 252) (2006)).
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, 538 U. S. at 360. See also R.A. V. v. City of St. Paul, Minn., 505 U. S. 377, 388 (112 SCt 2538, 120 LE2d 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 SCt 1186, 71 LE2d 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, 574-575 (3) (788 SE2d 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 (1). 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 apрears, 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 SE2d 337) (2013). If the statutory text is “ ‘clear and unambiguous,’we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” Id. at 173.
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
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., 274 Ga. App. 704, 707 (2) (618 SE2d 621) (2005), meaning that “one is aware that his conduct might cause the result, though it is not substantially certain to happen,” 1W. LaFave, Substantive Criminal Law § 5.4 (f) (2003) (emphasis in original). Sеe also Elonis v. United States, _ U. S. _ (135 SCt 2001, 2015, 192 LEd 1) (2015) (Alito, J., concurring in part and dissenting in part) (“recklessness exists ‘when a person disregards a risk of harm of which he is aware’ ”) (emphasis supplied);3 Arrington v. Trammell, 83 Ga. App. 107, 111 (62 SE2d 451) (1950) (“The difference between reckless misconduct and conduct involving only such a quantum of risk as is necessary to make it negligent is a differеnce in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference of kind.” (Citation and punctuation omitted.)). This is so because a reckless
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 stаtements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals,” Black, 538 U. S. at 359 (citations omitted); however, “[t]he speaker need not аctually intend to carry out the threat,” id. Major argues that this definition requires a specific intent to communicate a threat which, he contends, is not required within the reckless scienter. However, as recklessness requires a knowing act — i.e., conscious disregard of а substantial risk — it fits within the definition of a true threat.
Because former
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, 288 Ga. 34, 35 (1) (701 SE2d 182) (2010).
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, 235 Ga. 10, 11 (218 SE2d 771) (1975). As discussed above, the plain language of the statute prohibits a person from threatening, in a reckless manner, to commit any crime of violence. A person of ordinary intelligence can clearly understand the meaning of threatening to commit any crime of violence. Moreover, as discussed in Division 1, both Georgia and Federal law plainly define recklessness as proper criminal mens rea requirement. Based on the foregoing, we affirm the trial court’s decision upholding the constitutionality of former
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 particular party.’ ” (Citatiоn and punctuation omitted.) Hertz v. Bennett, 294 Ga. 62, 66 (2) (c) (751 SE2d 90) (2013). See also Harris v. Mexican Specialty Foods, Inc., 564 F3d 1301, 1308 (11th Cir. 2009).
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.
All the Justices concur.
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, 235 Ga. 10 (218 SE2d 771) (1975), to argue that the statute’s reckless scienter is constitutional, Lanthrip is, in fact, not controlling in this case as that case found the communication of a threat with the pu rpose of terrorizing another to be constitutional and did not address the reckless scienter currently before us.
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. 135 SCt at 2012. Here, the statute at issue has two separate mens rea requirements — purposeful and reсkless — and therefore does not run afoul of the narrow holding of Elonis. Cf. United States v. Kirsch, 151 FSupp.3d 311, 317-318 (W.D.N.Y. 2015) (“First, Elon is is a case of statutory construction, and as such, is limited to
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