Major v. State

• Decision Date: 15 May 2017
• Docket Number: S17A0086
• Citation: 800 S.E.2d 348
• Parties: MAJOR v. The STATE.
• Court: Georgia Supreme Court

301 Ga. 147

800 S.E.2d 348

MAJOR

v.The STATE.

S17A0086

Supreme Court of Georgia.

Decided: May 15, 2017

John Walker Rick, HALL COUNTY PUBLIC DEFENDER'S OFFICE, P.O. Box 390, Gainesville, Georgia 30503, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, DEPARTMENT OF LAW, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Alicia Davison Taylor, A.D.A., HALL COUNTY DISTRICT ATTORNEY'S OFFICE, P.O. Box 1690, Gainesville, Georgia 30503, Lee Darragh, District Attorney, NORTHEASTERN CIRCUIT DISTRICT ATTORNEY'S OFFICE, P.O. Box 1690, Gainesville, Georgia 30503, for Appellee.

HUNSTEIN, Justice.

We granted this interlocutory appeal to address whether the former¹ version of OCGA § 16-11-37 (a), Georgia's Terroristic Threats statute, is unconstitutionally overbroad and vague. For the reasons that follow, we affirm the judgment of the trial court that the statute is constitutional.

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. All y'all ain't going to graduate 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 the chopper out and make Columbine look childish.

Shortly after the statement was published, a resource officer 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 another "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 Major'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 interlocutory 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 prosecution for protected speech. Generally, "[t]he 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 , 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002) ; accord Final Exit Network, Inc. v. State of Georgia , 290 Ga. 508, 722 S.E.2d 722 (2012). The United States Supreme Court has recognized a few narrowly defined forms of expression that are categorically excluded from First Amendment protection, see United States v. Alvarez , 567 U.S. 709, 132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (enumerating categories of historically unprotected speech, such as defamation, obscenity, and fraud), which include the communicating of "true threats," see Virginia v. Black , 538 U.S. 343 (III) (A), 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003).

However, content-based laws regulating speech that are not included in these narrow categories of unprotected speech are subject to "exacting scrutiny." (Citation omitted.) West v. State , 300 Ga. 39, 40, 793 S.E.2d 57 (2016). Indeed, "[s]uch 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 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ; State v. Fielden , 280 Ga. 444, 629 S.E.2d 252 (2006) ).

Here, the State clearly seeks to regulate threats to commit any crime of violence. Such a prohibition " ‘protect[s] individual[s] 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.’ " Black , 538 U.S. at 360, 123 S.Ct. 1536. See also R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 388, 112 S.Ct. 2538, 120 L.Ed.2d 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 S.Ct. 1186, 71 L.Ed.2d 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, 575, 788 S.E.2d 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, 793 S.E.2d 57.

"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, 788 S.E.2d 468. 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 appears, 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 S.E.2d 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, 751 S.E.2d 337.

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 Major concedes that the portion of the statute regulating purposeful threats is constitutional,² he contends that the statute's reckless scienter is overly broad because it punishes protected speech by looking to the mind of the person receiving the threat (i.e., the reasonable listener) rather than the state of mind of the speaker, and because recklessness does not require a showing of specific intent and therefore does not meet the definition of a "true threat." We disagree.

It is well established that recklessness requires a person to act with "conscious disregard for the safety of others," Currid v. DeKalb State Court Prob. Dep't , 274 Ga.App. 704, 707, 618 S.E.2d 621 (2005), meaning that "one is aware that his conduct might cause the result, though it is not substantially certain to happen," 1 W. LaFave, Substantive Criminal Law § 5.4 (f) (2003) (emphasis in original). See also Elonis v. United States , –––U.S. ––––, 135 S.Ct. 2001, 2015, 192 L.Ed.2d 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 added)³ ; Arrington v. Trammell , 83 Ga.App. 107, 111, 62 S.E.2d 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 difference in the degree of the risk, but this difference of degree is so marked as to amount substantially to a difference of kind." (Quotation and citation omitted.)). This is so because a reckless mindset requires a person to consciously act in a manner which they know could cause harm. In other words, "[s]omeone who acts recklessly with respect to conveying a threat necessarily grasps that he is not engaged in innocent conduct. He is not merely careless. He is aware that others could regard his statements as a threat, but he delivers them anyway." Elonis , 135 S.Ct. at 2015 (Alito, J., concurring in part and dissenting in part.). Therefore, contrary to Major's assertions, recklessness clearly requires an analysis of the accused's state of mind at the time of the crime alleged.

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 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, 123 S.Ct. 1536 (citations omitted); however, "[t]he speaker need not actually 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 a substantial risk—it fits within the definition of a true threat.

Because former OCGA § 16-11-37 (a)...