Major v. State
301 Ga. 147, 2017 WL 2061683, 800 S.E.2d 348 (2017)
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Rule of Law:
A state statute criminalizing threats made with "reckless disregard" for the risk of causing terror does not violate the First Amendment, as recklessness is a sufficient mens rea to qualify the speech as an unprotected "true threat."
Facts:
- Devon Major was a student at Lanier Career Academy.
- In September 2014, Major posted a message on his personal Facebook page expressing frustration with his school.
- The message stated, in part: "Lord, please save me before, o [sic] get the chopper out and make Columbine look childish."
- A resource officer at Major's school saw the post and reported it to law enforcement.
- When contacted by law enforcement officers, Major admitted that he had posted the statement.
Procedural Posture:
- The State indicted Devon Major for making a terroristic threat in violation of OCGA § 16-11-37.
- In the trial court, Major filed a pre-trial motion to quash the indictment, arguing the statute was unconstitutional on its face and as applied to him.
- The trial court denied Major's motion, upholding the statute's constitutionality.
- The trial court granted Major a certificate of immediate review, allowing him to appeal the decision before trial.
- The Supreme Court of Georgia granted Major's application for an interlocutory appeal to decide the constitutional question.
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Issue:
Does a state terroristic threats statute that allows for conviction based on a defendant's "reckless disregard" of the risk of causing terror violate the First Amendment's free speech protections as unconstitutionally overbroad or the Fourteenth Amendment's due process clause as unconstitutionally vague?
Opinions:
Majority - Justice Hunstein
No, a state terroristic threats statute that allows for conviction based on a defendant's "reckless disregard" of the risk of causing terror is constitutional and does not violate the First or Fourteenth Amendments. The First Amendment does not protect "true threats," and a threat made with reckless disregard qualifies as such. Recklessness requires a conscious disregard of a substantial risk, which means it is based on the speaker's state of mind, not merely the listener's reaction. The court reasoned that someone acting recklessly is aware that their statements could be perceived as a threat but delivers them anyway, which is not innocent or protected conduct. Because the statute requires a mens rea of at least recklessness, it is not overbroad. Similarly, the statute is not unconstitutionally vague because "recklessness" is a well-defined legal term, providing a person of ordinary intelligence fair warning of what conduct is forbidden and preventing arbitrary enforcement. The court also rejected Major's as-applied challenge, holding that whether he possessed the required criminal intent is a question of fact for a jury to decide.
Analysis:
This decision affirms that a recklessness standard is constitutionally sufficient for a "true threat" prosecution, aligning Georgia's law with a significant body of federal and state jurisprudence. By distinguishing the Supreme Court's decision in Elonis v. United States, which invalidated a conviction under a federal statute lacking any mens rea requirement, this opinion clarifies that a statute with a recklessness requirement does not suffer from the same constitutional defect. The ruling reinforces that the First Amendment does not require the government to prove a defendant had the specific purpose or intent to threaten, making it easier to prosecute threatening speech, particularly on social media where intent can be ambiguous. This precedent gives prosecutors a lower mental state threshold to meet in terroristic threat cases.
