793 S.E.2d 57 (2016)

West v. The State

No. S16A1369.

Supreme Court of Georgia.
Decided: October 31, 2016.

Jason Randall Clark, Jason Clark, P.C., 2225 Gloucester Street, Brunswick, Georgia 31520, Mark W. Bennett, Bennett & Bennett, 917 Franklin Street Fourth Floor, Houston, Texas 77002, for Appellant.

Maria S. Lugue II, Glynn County Solicitor’s Office, 701 H Street Box 106, Brunswick, Georgia 31520, for Appellee.

Wystan Brennan Getz, Office of the Solicitor General, 556 North McDonough Street Suite 500, Decatur, Georgia 30030-3355, Sherry Boston, Office of the Solicitor General, 556 North McDonough Street 5th Floor, Decatur, Georgia 30030, for Amicus Appellee.

HUNSTEIN, Justice.

This interlocutory appeal presents a facial constitutional challenge to OCGA § 20-2-1182, which criminalizes upbraiding, insulting, or abusing a public school teacher, administrator, or bus driver in the presence of a pupil while on the premises of a public school or school bus. Appellant Michael Antonio West was arrested and charged under OCGA § 20-2-1182, and he thereafter filed a general demurrer, contending, among other things, that the statute is unconstitutionally overbroad in violation of the right to free speech guaranteed under the First Amendment to the United States Constitution.[1] The trial court denied West’s demurrer but granted him a certificate of immediate review; West subsequently filed an application for interlocutory appeal, and we granted the application to review the substance of West’s constitutional challenge. We agree with West that OCGA § 20-2-1182 is unconstitutionally overbroad and reverse the judgment of the trial court.

Generally speaking, “[t]he First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573, 122 S.Ct. 1700, 152 L.Ed.2d 771 (2002); accord Final Exit Network, Inc. v. State of Georgia, 290 Ga. 508 (1), 722 S.E.2d 722 (2012). Though there are a few narrowly defined forms of expression that are categorically excluded from free speech protections, see United States v. Alvarez, ___ U.S. ___, 132 S.Ct. 2537, 2544, 183 L.Ed.2d 574 (2012) (enumerating categories of historically unprotected speech, such as defamation, obscenity, and fraud), content based restrictions on free speech that fall outside those narrow categories are subject to “exacting scrutiny.” Id. at 2548. Such restrictions are only valid if they are “narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma, 413 U.S. 601, 611, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Accord State v. Fielden, 280 Ga. 444, 445, 629 S.E.2d 252 (2006) (“`[B]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.'” (Citations omitted.)).

To respect this “`breathing space’ and avoid deterring expression that may tend towards the outer boundaries of what is protected, the First Amendment overbreadth doctrine permits courts to invalidate laws burdening protected expression on their face, without regard to whether their application might be constitutional in a particular case.” Scott v. State, 299 Ga. 568, 569 (1), 788 S.E.2d 468 (2016). See also United States v. Williams, 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008); New York v. Ferber, 458 U.S. 747, 768-769, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The overbreadth doctrine invalidating a law that in some of its applications is perfectly constitutional — particularly a law directed at conduct so antisocial that it has been made criminal — has obvious harmful effects.

(Citations omitted.) Williams, 553 U.S. at 292, 128 S.Ct. 1830; see also Ferber, 458 U.S. at 768-769, 102 S.Ct. 3348. While a facial overbreadth challenge may be waged without respect to whether the restriction at issue might be constitutional in a specific instance, such a challenge will only prevail where the overbreadth is “substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep.” Williams, 553 U.S. at 292, 128 S.Ct. 1830. Accord Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) (overbreadth doctrine “prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process”); Final Exit Network, 290 Ga. at 511, 722 S.E.2d 722 (deterrent effect on protected expression must be “real and substantial” before statute is invalidated as overbroad); State v. Miller, 260 Ga. 669, 673 (2), 398 S.E.2d 547 (1990) (same).

The statute at issue here involves school premises, officials, and students.

While it is true that rights protected by the First Amendment are not magically lost when one steps upon school property, “neither teachers, students, nor anyone else has an absolute constitutional right to use all parts of a school building for unlimited expressive purposes.” Connecticut State Federation of Teachers v. Board of Education Members, 538 F.2d 471[,] 480 (2nd Cir. 1976). “Time, place and manner” regulations may be necessary to further significant governmental interests, and are permitted. But, in assessing the reasonableness of such regulations “we must weigh heavily the fact that communication is involved; the regulation must be narrowly tailored to further the State’s legitimate interest.” Grayned [v. City of Rockford, 408 U.S. 104, 116, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)]. The test, as announced in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) is whether a regulation is designed to restrict only that expression which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” [Id.] at 513 [89 S.Ct. 733].

McCall v. State, 354 So.2d 869, 871 (Fla. 1978). It is “evident beyond the need for elaboration” that government has a compelling interest in protecting the physical and psychological well-being of children. Osborne v. Ohio, 495 U.S. 103, 109, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990). “We nonetheless have the obligation to ensure that, in its zeal to promote this worthy aim, our legislature has not unwittingly curtailed legitimate modes of expression in a real and substantial way.” Scott, 299 Ga. at 575, 788 S.E.2d 468.

With these principles in mind, we begin our analysis, applying a de novo standard of review to the judgment of the trial court. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2), 691 S.E.2d 218 (2010).

The first step any court must take “in any overbreadth analysis is to construe the statute in question.” Scott, 299 Ga. at 472, 788 S.E.2d 468. See also Williams, 553 U.S. at 293, 128 S.Ct. 1830; United States v. Stevens, 559 U.S. 460, 474, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). Under our well-established rules of statutory construction, we

presume that the General Assembly meant what it said and said what it meant. To that end, we must afford the statutory text its “plain and ordinary meaning,” we must view the statutory text in the context in which it appears, and we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would.

(Citations and punctuation omitted.) Deal v. Coleman, 294 Ga. 170, 172-173, 751 S.E.2d 337 (2013). We “look to the text of the provision in question and its context within the larger legal framework to discern the intent of the legislature in enacting it.” Scott, 299 Ga. at 472, 788 S.E.2d 468. See also OCGA § 1-3-1 (a), (b). However, where the statutory text is “clear and unambiguous,” we attribute to the statute its plain meaning, and our search for statutory meaning ends. See Deal, 294 Ga. at 173, 751 S.E.2d 337.

OCGA § 20-2-1182, which is part of a collection of laws designed to address “loitering at or disrupting school,” provides as follows:

Any parent, guardian, or person other than a student at the public school in question who has been advised that minor children are present and who continues to upbraid, insult, or abuse any public school teacher, public school administrator, or public school bus driver in the presence and hearing of a pupil while on the premises of any public school or public school bus may be ordered by any of the above-designated school personnel to leave the school premises or school bus, and upon failure to do so such person shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine not to exceed $500.00.

(Emphasis added.) Id. According to Webster’s Third New International Dictionary (1966), to upbraid is to “criticize severely: find fault with” or to “reproach severely: scold vehemently,” id. at 2517; an insult is “to treat with insolence, indignity, or contempt by word or action” or “a gross indignity offered to another either by word or act: an act or speech of insolence or contempt,” id. at 1173; and, abuse is defined as “to attack or injure with words: reproach coarsely; disparage” or “language that condemns or vilifies, usually unjustly, intemperately, and angrily,” id. at 8. Thus, the plain language of OCGA § 20-2-1182 makes it a misdemeanor for any person not a student — after being advised that pupils are present and continuing to speak critically, reproachfully, indignantly, or disparagingly towards any public school teacher, administrator, or bus driver in the presence and hearing of a pupil — to remain on the school premises or bus after being ordered to leave by a school official.

While we may be able to conceive of a statement that constitutes an “upbraid, insult, or abuse” that could be classified as “fighting words” and thus not subject to First Amendment protections, see Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace”), “we can just as easily formulate statements punishable by the statute which would not be likely to cause an average addressee to fight.” Ketchens v. Reiner, 239 Cal.Rptr. 549 (III), 194 Cal.App.3d 470, 475 (1987) (addressing similar statute). Accord Shoemaker v. State, 343 Ark. 727, 736, 38 S.W.3d 350 (2001) (concluding that “the undefined terms `abuse’ and `insult’ could include protected speech”). “[W]ords which merely offend, disgrace, anger or frustrate may not be prohibited in violation of one’s right to freedom of speech.” Commonwealth v. Ashcraft, 691 S.W.2d 229, 231 (Ky.App.1985) (citing Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974)).

Further, though ostensibly seeking to prevent disruptions to education or school activities, the statute neither ties the prohibited expression to the disruption of normal school activities nor limits the prohibitions to specific, fixed times, such as when school is in session. McCall, 354 So.2d at 872. Also concerning, the statute does not proscribe all speech that might be boisterous or disruptive; instead, OCGA § 20-2-1182 prohibits only that speech directed at public school officials which may be perceived as negative or unfavorable. “It is axiomatic that the government may not regulate speech based on its substantive content or the message it conveys.” Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 828 (11), 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995). The practical effect of the plain language of OCGA § 20-2-1182 is that any person — may it be a parent, school system employee, or concerned citizen while on school premises or a school bus — who dares to speak critically to school officials at any time in the presence of minors must leave the premises when so ordered by a school official or face arrest and prosecution for a misdemeanor.[2] Though the statute ostensibly only criminalizes the speech after the speaker refuses to leave school premises, the result is the same: the speaker is silenced, either through his or her 62*62 absence on the school premises or school bus or through subsequent prosecution, based on the content of his or her speech, be it at a high school football game or a parent-teacher conference.[3] Cf. Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (recognizing that time, place, and manner restrictions must be content neutral).

Although this criminal statute may have a legitimate application, it also makes unlawful a substantial amount of constitutionally protected speech. See Houston v. Hill, 482 U.S. 451, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987). While this Court “has the authority to narrow a statute to avoid unconstitutional infirmities … under our system of separation of powers[,] this Court does not have the authority to rewrite statutes.” Fielden, 280 Ga. at 448, 629 S.E.2d 252. We agree with West that this statute, though perhaps well intentioned, neither regulates unprotected speech nor is appropriately tailored to meet its intended objective and is therefore overbroad. Accordingly, the judgment of the trial court denying the general demurrer is reversed.

Judgment reversed.

All the Justices concur.

[1] West’s general demurrer also cited to the free speech clause found in Georgia’s Constitution. seeks to strike a balance between competing social costs. On the one hand, the threat of enforcement of an overbroad law deters people from engaging in constitutionally protected speech, inhibiting the free exchange of ideas. On the other hand, See Ga. Const. of 1983, Art. 1, Sec. 1, Par. 5.

[2] The General Assembly has enacted other laws that proscribe disruptive conduct on school grounds that are content neutral. See, e.g., OCGA § 20-2-1181.

[3] In striking down a similar provision, a court of appeals in California recognized that the statute could be triggered by comments about a teacher’s dress or perceived teaching abilities. Ketchens, 194 Cal.App.3d at 475-476, 239 Cal.Rptr. 549.

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