Major v. State

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

Quick Summary

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Devon Major (defendant) faced legal action following a concerning post on Facebook that led to charges under Georgia’s threat statute, § 16-11-37(a). The dispute centered on whether this statute violated constitutional free speech protections.

The Supreme Court of Georgia concluded that § 16-11-37(a) was neither overbroad nor vague and did not violate the First Amendment, as it targeted ‘true threats’ and provided clear standards for enforcement.

Facts of the Case

Facts of the case Icon

Devon Major (defendant), a high school student, found himself under arrest after he posted a message on his Facebook page that appeared to threaten a school shooting. Following this, he was indicted for making threats in violation of Georgia law, specifically § 16-11-37(a), which makes it illegal to make threats of violence with reckless disregard for causing terror.

Major challenged this charge, asserting that the statute in question unjustly criminalizes speech that should be protected under the First Amendment.

The trial court denied Major’s motion, leading to his appeal on the grounds that the statute was overly broad and vague, potentially infringing upon free speech rights guaranteed by the Constitution.

Procedural Posture and History

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  1. Major posted a potentially threatening message on Facebook.
  2. He was arrested and charged under § 16-11-37(a).
  3. Major filed a motion to oppose the charge, claiming constitutional violations.
  4. The trial court denied the motion.
  5. Major appealed the decision to the Supreme Court of Georgia.

I.R.A.C. Format


Issue Icon

Whether § 16-11-37(a) is unconstitutional for being overbroad and vague, thus violating the First Amendment right to free speech.

Rule of Law

Rule Icon

A statute will not be deemed overbroad if it does not punish a substantial amount of protected speech in relation to its plainly legitimate sweep. A statute is not vague if it gives a person of ordinary intelligence fair warning of what conduct is prohibited and does not invite arbitrary enforcement.

Reasoning and Analysis

Reasoning Icon

The Supreme Court of Georgia examined whether the language of § 16-11-37(a) prohibited a substantial amount of protected speech. They concluded that the statute, which criminalizes threats of violence made purposefully or with reckless disregard, did not impinge upon free speech because it specifically targeted ‘true threats,’ a category not protected by the First Amendment.

The Court further explained that recklessness in this context requires conscious disregard for safety, fitting within the definition of a true threat. Therefore, the court determined that the statute’s inclusion of reckless threats did not make it unconstitutionally overbroad.

Addressing the vagueness challenge, the Court found that an individual of ordinary intelligence would understand what constitutes a threat of violence and that recklessness is a well-established mens rea in both state and federal law. Thus, the statute provided clear standards and did not encourage arbitrary enforcement, meeting constitutional requirements for specificity and clarity.


Conclusion Icon

The Supreme Court of Georgia affirmed the trial court’s decision, upholding the constitutionality of § 16-11-37(a).

Key Takeaways

Takeaway Icon
  1. The statute’s inclusion of reckless behavior as a form of true threat does not infringe upon First Amendment rights because it does not protect true threats.
  2. A statute is not unconstitutionally vague if it provides clear guidelines that can be understood by an individual of ordinary intelligence and does not result in arbitrary enforcement.
  3. The constitutionality of a statute is upheld if it appropriately targets and criminalizes behavior that falls outside the protection of free speech.

Relevant FAQs of this case

What differentiates a 'true threat' from protected speech under the First Amendment?

A ‘true threat’ encompasses statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence. Unlike most speech protected by the First Amendment, a true threat is not subject to free speech protection because it can instill fear in others or incite imminent lawless action. Consequently, statutes that criminalize ‘true threats’ are constitutionally permissible.

  • For example: If an individual states they plan to bomb a public area and takes steps that suggest preparation, this can be seen as a ‘true threat’ and not rhetoric or hyperbole.

How does recklessness play into determinations of criminal liability for speech?

Criminal liability for speech may include reckless disregard for risk when the speaker consciously disregards a substantial and unjustifiable risk that the speech will cause a certain harmful result. In legal terms, this means the speaker was aware of but ignored the likelihood that their words could incite fear or violence.

  • For example: A person who jokes about a bomb in an airport may be considered reckless, as they disregard the risk of causing panic even if there’s no actual bomb.

What makes a statute unconstitutionally vague, and why is specificity important?

A statute is unconstitutionally vague if it fails to provide clear guidance on what behavior is prohibited, thus potentially leading to arbitrary enforcement or chilling lawful behavior due to fear of punishment. Specificity is critical as it helps prevent subjective interpretation by law enforcement and allows individuals to understand what actions are considered illegal.

  • For example: A law prohibiting ‘annoying behavior’ without further definition might be struck down as vague since ‘annoying’ is subjective and doesn’t provide clear notice of forbidden conduct.


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