In September 2014, Devon Major, a student at Lanier Career Academy, a charter high school, posted a Facebook message saying his school “ain a school stop coming here all yall ain ganna graduate early why cuz there to many yall f---ers to even get on a computer I swear and there so much drama here now Lord, please save me before o get the chopper out and make Columbine look childish.”
A school resource officer saw the post and informed the principal and law enforcement. When officers contacted Major, he admitted posting the statement. He was arrested and charged with two counts of making terroristic threats. Through his attorney, Major filed a motion challenging his indictment, arguing that the statute under which he was charged is unconstitutional because it is vague and overbroad in violation of his First Amendment right to free speech and Fifth Amendment right to due process. The trial court denied his motion, and he asked to appeal to the Georgia Supreme Court. The high court granted his request to appeal while his case was still pending in the trial court, and specifically asked the parties to address the question of whether the statute under which he was being charged, Georgia Code § 16-11-37 (a), was unconstitutionally void because of its vagueness. The parties are now arguing that question here on appeal while Major still awaits trial.
ARGUMENTS FROM MAJOR'S ATTORNEY:
Major argues that the trial court erred when it denied his motion challenging Georgia Code section 16-11-37 (a) as unconstitutional. Major cites a 1942 U.S. Supreme Court case, Chaplinsky v. New Hampshire, in asserting that the First Amendment permits the regulation of certain areas of speech only as long as the regulations are “well-defined” and “narrowly limited.” As outlined in United States v. Alvarez, a U.S. Supreme Court case from 2012, First Amendment challenges of speech-restricting statutes involve a three-step inquiry: 1) whether the statute at issue restricts speech based on content; 2) whether the restricted speech falls entirely into the category of unprotected speech; and 3) whether the statute satisfies strict scrutiny. Major argues Code section 16-11-37 criminalizes communication without having to show the speaker’s intent to communicate a threat, allowing for the prosecution of protected speech. Some forms of speech are unprotected, such as “true threats.” In its 2003 decision in Virginia v. Black, the U.S. Supreme Court defined a “true threat” as “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence.” In other words, the State must demonstrate that the speaker possessed the specific intent to communicate a threat. Code section 16-11-37, however, criminalizes speech beyond that of a “true threat,” Major’s attorney argues, by “criminalizing speech made ‘in reckless disregard of causing such terror.’” The State may only regulate speech with “narrow specificity,” which is not accomplished here. Finally, Major argues that his statement was never meant to communicate a specific crime, but was rather a therapeutic, cathartic expression. “Notably, the statement was not reported by any of [Major’s] friends or fellow students, but rather discovered by a school resource officer.” Here, Major “has not communicated any threat to commit a crime of violence, and thus may not be prosecuted under section 16-11-37,” his attorney argues. Major is now asking the Georgia Supreme Court to reverse the trial court’s order and to declare that the statute under which he is being charged is unconstitutional.
ARGUMENTS FROM THE STATE:
Represented by the District Attorney, the State argues that Georgia Code section 16-11-37 is not unconstitutionally vague or overbroad. “A law is unconstitutionally vague and violates due process if a reasonable person can’t tell what speech is or is not permitted by the statute,” the State argues in briefs. “Vague laws are susceptible to arbitrary and discriminatory enforcement.” A law is unconstitutionally overbroad if it “regulates substantially more speech than is necessary to accomplish a legitimate purpose advanced by the State, in this case public safety.” The language in Code section 16-11-37 “that permits the State to obtain a conviction when a threat is made in reckless disregard of its potential for inciting terror does not render the statute unconstitutionally void for vagueness or overbreadth,” the State argues. “Those who are subject to punishment under the statute know by its wording that they can be convicted for making threats with reckless disregard for whether they might terrorize others. It is sufficiently clear from the language of the statute that they may be convicted for intentional threats and that they may not be convicted for negligently issued threats.” The State argues that there is “no evidence that this law, by proscribing the reckless publication of statements that are likely to cause terror, evacuation, or inconvenience, would regulate substantially more speech than necessary to preserve the safety and order of the public.” While Major “contends that threats made for cathartic or therapeutic purposes should be protected,” such an argument “overlooks the fact that threats that are intended for the speaker’s cathartic benefit impose the same amount of damage on those who would be terrorized by receiving the threat.” The States argues that the question of whether or not Major acted with intent when posting this statement is a question that should be left for a jury to decide. Additionally, communication is sufficient to constitute a threat if a reasonable person would conclude that it was a threat. Here, both a school resource officer and the principle arrived at that conclusion. Therefore, the State is asking this Court to affirm the lower Court’s pre-trial ruling that Major’s charge under Georgia Code Section 16-11-37 is valid.
http://accesswdun.com/article/2016/11/474931/hall-county-student-appeals-terroristic-threats-charges-to-supreme-court-of-georgia