Scott v. State

• Decision Date: 05 July 2016
• Docket Number: S16A0323
• Citation: 788 S.E.2d 468,299 Ga. 568
• Parties: Scott v. The State.
• Court: Georgia Supreme Court

299 Ga. 568

788 S.E.2d 468

Scott

v.The State.

S16A0323

Supreme Court of Georgia.

Decided: July 5, 2016

Reconsideration Denied July 25, 2016

Jason Randall Clark, Cris Edward Schneider, The Schneider Law Firm, Mark W. Bennett, Bennett & Bennett, for Appellant.

Andrew J. Ekonomou, Katie Marie Udy, Jay Alan Sekulow, Assistant District Attorneys, Jacquelyn Lee Johnson, District Attorney, for Appellee.

Elizabeth Bloom Hodges, Cohen, Pollock, Merlin & Small, P.C., Patrick A. Trueman, Danielle Bianculli, Brittany Conklin, amici curiae.

HUNSTEIN

, Justice.

This interlocutory appeal presents a facial constitutional challenge to subsection (e) of the Computer or Electronic Pornography and Child Exploitation Prevention Act, OCGA § 16–12–100.2

, which criminalizes the offense of “obscene Internet contact with a child.” Appellant Jack Scott was indicted in January 2015 on two counts of that offense, arising from alleged sexually explicit online communications in which he took part in late 2013 with a minor under the age of 16. Scott thereafter filed a general demurrer, contending that OCGA § 16–12–100.2 (e) is unconstitutionally overbroad in violation of the right to free speech guaranteed under the First Amendment to the United States Constitution.¹ The trial court denied the demurrer but granted Scott a certificate of immediate review. Scott filed an application for interlocutory appeal, and we granted the application only to review the merits of his First Amendment overbreadth challenge. We now hold that, when properly construed, subsection (e) does not effect a real and substantial constraint upon constitutionally protected expression. Subsection (e) therefore does not on its face violate the First Amendment, and the trial court properly denied Scott's demurrer. Accordingly, we affirm.

1. In general, “[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). Though American jurisprudence has recognized a few narrowly defined forms of expression that are categorically excluded from First Amendment protection, see United States v. Alvarez , –––U.S. ––––, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (enumerating categories of historically unprotected speech, such as defamation, obscenity, and fraud), laws purporting to prohibit or regulate speech falling outside those narrow bounds on the basis of its content are subject to “exacting scrutiny.” Id. at 2548. To be valid, such laws “must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma , 413 U.S. 601, 611, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Accord State v. Fielden , 280 Ga. 444, 445, 629 S.E.2d 252 (2006) (“ ‘(b)ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ ” (citation omitted)).

To maintain the requisite “breathing space” and avoid deterring expression that may tend towards the outer boundaries of what is protected, the First Amendment overbreadth doctrine permits courts to invalidate laws burdening protected expression on their face, without regard to whether their application might be constitutional in a particular case. See United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008)

; New York v. Ferber , 458 U.S. 747, 768–769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). This doctrine

seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, invalidating a law that in some of its applications is perfectly constitutional—particularly a law directed at conduct so antisocial that it has been made criminal—has obvious harmful effects.

(Citations omitted.) Williams , 553 U.S. at 292, 128 S.Ct. 1830

; see also Ferber , 458 U.S. 747, 768–769, 102 S.Ct. 3348. Thus, the overbreadth doctrine, while allowing facial overbreadth challenges without regard to whether the law in question might be constitutional if applied to the litigant at hand, also erects a high bar for establishing facial overbreadth, requiring a finding that the law's overbreadth is “substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep.” (Citation omitted.) Williams , 553 U.S. at 292, 128 S.Ct. 1830. Accord Ashcroft v. Free Speech Coalition , 535 U.S. 234, 235, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (overbreadth doctrine “prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process”); Final Exit Network , 290 Ga. at 511, 722 S.E.2d 722

(deterrent effect on protected expression must be “real and substantial” before statute is invalidated as overbroad); State v. Miller , 260 Ga. 669, 673, 398 S.E.2d 547 (1990) (same).

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. Williams , 553 U.S. at 293, 128 S.Ct. 1830

; accord United States v. Stevens , 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). We now undertake that step, reviewing the trial court's order de novo. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt , 286 Ga. 731, 691 S.E.2d 218 (2010).

2. OCGA § 16–12–100.2 (e) (1)

provides that an individual

... commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer wireless service or Internet service, including but not limited to, a local bulletin board service, Internet chat room, e-mail, or instant messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.

OCGA § 16–12–100.2 (e) (1)

. The crime so defined is a felony, except where the victim is at least 14 years old and the accused was 18 or younger at the time of the crime, in which case it is a misdemeanor. Id. at (e) (2).

Under our well-established 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, 751 S.E.2d 337 (2013)

. In our interpretation of statutes, we thus look to the text of the provision in question, and its context within the larger legal framework, to discern the intent of the legislature in enacting it. See id. ; OCGA § 1–3–1 (a), (b).

Deconstructing the multifaceted substantive provisions of subsection (e) (1), it is apparent that the actus reus of the offense at issue is the establishing of “contact.”² The text of the statute is clear that, to constitute a crime, such contact must be made with a person known or believed to be a “child,” a term defined in the statute as “any person under the age of 16 years.” OCGA § 16–12–100.2 (b) (1)

. In addition, the contact must be accomplished by way of a computer wireless service or Internet service, and it must involve “explicit verbal descriptions or narrative accounts” of subjects falling within any of four categories of offending content: “sexually explicit nudity,” “sexual conduct,” “sexual excitement,” or “sadomasochistic abuse.” These terms are defined elsewhere in the Georgia Code, see id. at (b) (4)–(7), as follows:

• “Sexually explicit nudity” is defined as “a state of undress so as to expose the human male or female genitals, pubic area, or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.” OCGA § 16–12–102 (7)

.

• “Sexual conduct” is defined as “human masturbation, sexual intercourse, or any touching of the genitals, pubic areas, or buttocks of the human male or female or

the breasts of the female, whether alone or between members of the same or opposite sex or between humans and animals in an act of apparent sexual stimulation or gratification.” OCGA § 16–12–100.1 (a) (7)

.

• “Sexual excitement” is defined as “the condition of human male or female genitals or the breasts of the female when in a state of sexual stimulation.” OCGA § 16–12–100.1 (a) (8).

• “Sadomasochistic abuse” is defined as “flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.” OCGA § 16–12–100.1 (a) (6).

Following this list of offending content categories is the phrase, “that is intended to arouse or satisfy the sexual desire of either the child or the person.” The pivotal question is what term or phrase within subsection (e) this qualifying phrase is intended to modify. Does the phrase modify only the term “sadomasochistic abuse” that...