## Facts

- Davis was indicted under Code Ann. § 26-1007 for criminal solicitation based on an allegation that he solicited M. I. Lawson to sell marijuana, a felony.
- The indictment alleged Davis “solicited and requested” Lawson to sell marijuana.
- Code Ann. § 26-1007 defined criminal solicitation as, with intent that another engage in felony conduct, soliciting, requesting, commanding, importuning, or otherwise attempting to cause that person to engage in such conduct.
- Davis moved to dismiss the indictment, asserting the statute was facially unconstitutional as vague and overbroad under the First Amendment.
- The trial court held the statute unconstitutional on its face and dismissed the indictment; the State appealed.

## Issues

1. Whether Code Ann. § 26-1007 is unconstitutionally vague on its face in describing prohibited conduct.
2. Whether Code Ann. § 26-1007 is facially overbroad because it criminalizes protected speech as well as unprotected speech.

## Decision

- The Supreme Court of Georgia reversed the dismissal of the indictment and upheld Code Ann. § 26-1007.
- The court held the statute is not unconstitutionally vague because it gives fair notice and provides enforceable standards through its intent requirement and operative solicitation terms.
- The court held the statute is not facially overbroad because, properly construed, it reaches only intentional, direct efforts to cause another to commit a felony, which is not protected speech.
- The case was remanded for further proceedings.

## Legal Principles

- Statutes are presumed constitutional, and courts should apply a narrowing construction consistent with constitutional requirements where the text reasonably permits it.
- A criminal-solicitation statute requiring specific intent to cause another to commit a felony and targeting direct inducement of criminal conduct may be sustained against a facial overbreadth challenge because such speech falls outside First Amendment protection when it constitutes incitement or participation in crime.
- Under First Amendment incitement doctrine, abstract advocacy of law violation is protected, but purposive urging directed to producing unlawful action may be punished.
- A statute is not void for vagueness if persons of ordinary intelligence can understand what it prohibits and it does not invite arbitrary enforcement; specifying both intent and the prohibited act supports clarity.

## Conclusion

The Georgia Supreme Court held that Georgia’s criminal-solicitation statute, limited to intentional efforts to induce another to commit a felony, is constitutionally definite and does not facially burden protected speech, so the indictment’s dismissal was reversed and the case returned to the trial court.


State v. Davis, 246 Ga. 761, 272 S.E.2d 721 (Ga. 1980)