Georgia Supreme Court Rules Student’s Facebook Rant Not Protected Speech

Written by: Eric Hoffman, Esq.

In September 2014, Lanier Career Academy (Gainesville, Ga.) student Devon Major was arrested and charged with threatening to commit a crime of violence after school officials were alerted to a Facebook post by Major. In the post Major wrote:

Bruh, LCA [Lanier Career Academy] 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**kers 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. [Note: “chopper” is a slang term for an assault rifle]

The student admitted to making the statement, and he was subsequently charged with violating O.C.G.A. 16-11-37(a), Georgia’s then existing terroristic threats statute for threatening to commit a crime of violence against another “in reckless disregard of causing such terror.”

Major argued that the statute was unconstitutionally overbroad and vague, and also brought an as applied challenge. First, he argued that the law was facially unconstitutional because it violated his First Amendment free speech rights and his Fourteenth Amendment right to due process. The Georgia Supreme Court rejected this argument holding that the statute was a legal attempt by the State to regulate threats to commit crimes of violence. “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.” Major agreed that the part of the statute regulating true threats was constitutional, but argued that the statute’s “reckless scienter” is overly broad because it punishes protected speech by looking at the mind of the recipient of the threat and not the state of mind of the speaker. The Court disagreed holding that the reckless requirement “clearly requires an analysis of the accused’s state of mind at the time of the crime alleged.”

Secondly, Major argued that the statute’s reckless scienter requirement makes the statute void because it does not provide a clear definition of “true threat.” The Court likewise rejected this argument finding “the statute can clearly be read and understood by a person of ordinary intelligence seeking to avoid its violation.”

Lastly, Major argued that the statute was unconstitutional as applied to him. He contended that the phrase “Lord, please save me” made the overall statement therapeutic and/or religious in nature, and thus did not show any intent to commit violence. However, the Court rejected this argument stating “whether an accused acted with the requisite criminal intent is a question of fact reserved for the jury,” and thus upheld Major’s conviction.

Hall Booth Smith’s education law attorneys have significant experience in assisting schools and colleges in student disciplinary situations. Please contact Eric Hoffman at 404-954-6951 or ehoffman@hallboothsmith.com for more information or if we can assist you in any way.

The Court’s full opinion can be found at http://www.gasupreme.us/wp-content/uploads/2017/05/s17a0086.pdf