Those of you parenting or teaching teens ought to ask them to read this new state Supreme Court decision upholding charges of terroristic threats against a Hall County teenager over a Facebook post. The case speaks to the risks of using social media to make threats, even ones written in jest or out of frustration.
The gist: A teen posted on Facebook about the lack of computers at his charter high school, warning students they would have a hard time graduating because there were too many people and too few machines. Except the teen said it in a far less straightforward way and ended with this comment: “I swear and there so much drama here now Lord, please save me before o get the chopper out and make Columbine look childish.”
Despite the incoherence, the teen’s message was viewed as a threat and he was arrested. He challenged his indictment, maintaining the statute is unconstitutional because it’s vague and over broad. His lawyer argued the Facebook comment was not a terroristic threat but therapeutic, cathartic expression. The Supreme Court disagreed, saying, “…whether an accused acted with the required criminal intent is a question of fact reserved for the jury, not this Court.”
Here is the news summary released this morning about the case:
The Georgia Supreme Court has upheld as constitutional the 2014 version of Georgia’s Terroristic Threats statute that has been challenged by a Hall County high school student who has been criminally charged with posting terroristic threats on Facebook.
In September 2014, Devon Major, a student at Lanier Career Academy, a charter high school, posted a Facebook message saying that, “LCA 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 threatening to commit a crime of violence against another “in reckless disregard of causing such terror” in violation of the former version of Georgia Code § 16-11-37 that was in effect in 2014.
Specifically, the statute said that 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…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.”
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 Fourteenth 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 and specifically asked the parties to address the question of whether the statute under which he was being charged, former Georgia Code § 16-11-37 (a), was unconstitutionally void because it was vague and overbroad.
In his pre-trial appeal, Major argues that the statute punishes protected speech by focusing on the state of mind of the person receiving the threat (i.e. the 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,” Justice Carol Hunstein writes for a unanimous court. “It is well established that recklessness requires a person to act with ‘conscious disregard for the safety of others.’”
“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,” today’s state Supreme Court opinion says.
This Court also rejects Major’s argument that recklessly communicating a threat of violence 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,’” the opinion says. “However, ‘The speaker need not actually intend to carry out the threat.’”
“Because former § 16-11-37 (a) requires that a person communicate a threat of violence in a purposeful or reckless manner, both of which are true threats and not protected speech, it does not violate the First Amendment’s right to free speech,” today’s opinion says.
Major further contends that the statute is “void for vagueness” because it lacks a clear and discernable definition of what constitutes a threat.
“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,” the opinion says. 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.” Therefore, “we affirm the trial court’s decision upholding the constitutionality of former § 16-11-37 (a) against a vagueness challenge.”
Finally, Major contends the statute is unconstitutional as applied to him, arguing that the phrase, “Lord, please save me,” in his post was therapeutic or religious in nature and did not reflect an intent to commit a violent act.
“However, whether an accused acted with the required criminal intent is a question of fact reserved for the jury, not this Court,” today’s opinion says. “Based on the evidence in the record before us, we find that the statute has not been unconstitutionally applied to Major.”