## Facts

- Devon Major, a high-school student, posted a Facebook message referencing getting “the chopper” and making “Columbine look childish.”
- A school resource officer saw the post and contacted law enforcement; Major admitted posting it.
- Major was arrested and indicted under former OCGA § 16-11-37(a) for making a threat to commit a crime of violence “in reckless disregard of causing such terror.”
- Before trial, Major filed a general demurrer/motion to quash, arguing the statute was unconstitutional on its face and as applied under the First and Fourteenth Amendments because it allowed conviction based on recklessness.
- The trial court denied the motion, granted a certificate of immediate review, and Major pursued an interlocutory appeal.

## Issues

1. Whether former OCGA § 16-11-37(a) was unconstitutionally overbroad under the First Amendment because it allowed conviction for threats made with “reckless disregard,” allegedly reaching protected speech rather than only unprotected true threats.
2. Whether the statute was void for vagueness under the Due Process Clause because “reckless disregard of causing such terror” allegedly failed to provide fair notice and permitted arbitrary enforcement.

## Decision

- The Supreme Court of Georgia affirmed the denial of the motion to quash.
- The court held former OCGA § 16-11-37(a) was not facially unconstitutional for overbreadth or vagueness.
- The court construed the statute to reach only “true threats” of violence, which are outside First Amendment protection.
- The court held the statute’s mens rea requirements—including recklessness as conscious disregard of a substantial and unjustifiable risk—provided constitutionally adequate limits.

## Legal Principles

- A criminal statute is facially overbroad only if it prohibits a substantial amount of protected speech relative to its legitimate sweep.
- “True threats” of unlawful violence are categorically unprotected by the First Amendment; statutes addressing threats are construed and applied consistent with that constitutional limit.
- Recklessness, as a well-defined criminal mental state requiring conscious disregard of a substantial risk, may constitutionally serve as a culpable mental state for threat offenses when tied to the risk that the statement will be understood as a serious expression of intent to commit violence.
- A penal statute is void for vagueness only if it fails to provide ordinary notice of prohibited conduct or lacks standards sufficient to prevent arbitrary or discriminatory enforcement; established legal meanings and defined mens rea elements weigh against vagueness.

## Conclusion

The Georgia Supreme Court upheld former OCGA § 16-11-37(a) against First Amendment overbreadth and Fourteenth Amendment vagueness challenges by construing it to punish only true threats and by treating its intent and recklessness elements as sufficiently defined to provide notice and constrain enforcement.


Major v. State, 301 Ga. 147, 800 S.E.2d 348 (Ga. 2017)