CopyCited 1 times | Published | Supreme Court of Georgia | Oct 31, 2024
... Harris,
Mary Hooks, Priscilla Smith, Desmond Tucker, Yomara Velez, and April
Zachary.
2 During the course of the litigation, the appellants limited their
constitutional challenges to subsections (a), (f), and (g) of OCGA § 16.11.34.1.
OCGA §
16-11-34.1 provides in pertinent part:
(a) It shall be unlawful for any person recklessly or
knowingly to commit any act which may reasonably be expected to
prevent or disrupt a session or meeting of the Senate or House of...
...But even without a final judgment, the
appellants were entitled to an immediate appeal under OCGA §
5-6-34 (a) (4),
2
explained below, we conclude that the allegations of the complaint
are insufficient to support a declaration that OCGA §
16-11-34.1 is
facially unconstitutionally overbroad or vague under Georgia law.
We also conclude that the allegations of the complaint required the
dismissal of one appellant’s as-applied challenge....
... The complaint names as defendants multiple law enforcement
officers in their personal capacities.5 The appellants allege that the
officers personally arrested one or more of them or made decisions
for the Department of Public Safety regarding the enforcement of
OCGA §
16-11-34.1....
...injunctive relief on the basis that the Code section is
unconstitutionally overbroad and violates the free speech
protections in Georgia’s Constitution.6 In the complaint, the
appellants allege that “OCGA §
16-11-34.1 is facially
unconstitutional for the same reasons that the virtually identical
statute regarding disruption of other government meetings[, OCGA
5 The appellees are defendants-below Darrius Magee, James Womble,
Jo...
....” The appellants allege
that the Code section is also unconstitutional as applied to them
because they did not intend to disrupt any session of the General
Assembly and did not in fact disrupt any session. The appellants
also allege that OCGA §
16-11-34.1 is unconstitutionally vague “as
its terms fail to give fair warning to a citizen as to what conduct is
permitted and insufficient guidance to law enforcement as to what
conduct is criminal.” The appellants filed a corresponding m...
...Specifically, the appellants argued that we struck down OCGA §
16-11-34 as
facially overbroad because it criminalized “recklessly or knowingly
commit[ting] any act which may reasonably be expected to prevent or disrupt”
specified classes of meetings and that OCGA §
16-11-34.1 (a) is likewise facially
overbroad because it employs the same text.
6
distinguishing Fielden and arguing that OCGA §
16-11-34.1 is not
facially unconstitutional, despite any textual similarities to OCGA
§
16-11-34. The appellees also argued that OCGA §
16-11-34.1 is not
unconstitutionally vague and that Cannon failed to state an as-
applied claim for violation of her right to free speech because the
allegations of the complaint do not “plausibly show that [she]
engaged in any protected exp...
...dismiss the complaint in part. The trial court denied as moot the
appellants’ motion for injunctive relief “which sought injunctive
relief based on [the appellants’] facial challenge to [OCGA] § 16-11-
34.1.”
1. The appellants contend that OCGA §
16-11-34.1 (a) is
unconstitutionally overbroad under Georgia law and that the trial
court therefore erred in granting in part the appellees’ motion to
dismiss and in denying the appellants’ request for injunctive relief.
7
Specifically, the appellants argue that OCGA §
16-11-34.1 (a) is
“virtually identical” to OCGA §
16-11-34 and is facially
unconstitutional for the same reasons as that Code section was
declared unconstitutional in Fielden....
...rt, we
8 As discussed below, Fielden applied the federal overbreadth doctrine
articulated by the United States Supreme Court in Broadrick v. Oklahoma,
413 U. S. 601 (93 SCt 2908, 37 LE2d 830) (1973). Given that the appellants
challenge OCGA §
16-11-34.1 (a) only under Georgia’s constitutional free
speech protections, some of us question whether the guarantee of free speech,
first adopted in the Georgia Constitution in 1861, is properly interpreted to
include an equivalent to the federal law overbreadth doctrine outlined in
Broadrick in 1973....
...the first amendment.”); Miller,
260 Ga. at 671 (1) (“The 1983 Constitution of
Georgia provides even broader protection” than the First Amendment, which
8
conclude that Fielden does not require facial invalidation of OCGA
§
16-11-34.1 (a) for overbreadth.9
Duly enacted statutes enjoy a presumption of
constitutionality....
...case we review the
appellants’ claims as they presented them to the trial court and thus leave that
question for another day.
9 In the alternative, the appellants argue, for the first time on appeal,
that the State failed to show that OCGA §
16-11-34.1 (a) is the least restrictive
means of furthering the government’s interest, a standard that we have held
applies to a limited class of overbreadth challenges under the Georgia
Constitution to content-neutral regulations that may affect protected speech.
See, e.g., Statesboro Publishing, 271 Ga....
...expected to prevent or disrupt a session or meeting of the
Senate or House of Representatives, a joint session
thereof, or any meeting of any standing or interim
committee, commission, or caucus of members thereof.
The trial court determined that OCGA §
16-11-34.1 (a) “has a far
narrower scope” than OCGA §
16-11-34 (a), and that “[t]he extent to
which it may be expected to deter any protected speech is thus also
far narrower than” with OCGA §
16-11-34 (a)....
... 34.1 “prohibits a substantial amount of protected speech relative to
its plainly legitimate sweep of prohibiting conduct likely to prevent
or disrupt legislative business.” The trial court concluded that
“Fielden does not, accordingly, require facial invalidation of [OCGA]
§
16-11-34.1 (a).”
We agree with the trial court that Fielden does not require
facial invalidation of OCGA §
16-11-34.1 (a), despite both statutes’
use of the phrase “recklessly or knowingly commit[ ] any act which
may reasonably be expected to prevent or disrupt . . . .” Contrary to
the appellants’ contention, the textual difference between OCGA §
16-11-34 (a) and OCGA §
16-11-34.1 (a) — the type of meetings that
they cover — is a meaningful difference. By applying literally to any
lawful gathering, whether governmental or private sector,
professional or social, private or open to the public, OCGA § 16-11-
34 (a) threatens nearly infinite iterations of protected expression.
OCGA §
16-11-34.1 (a), by contrast, regulates expression only in the
context of sessions and various types of meetings of the members of
the Georgia General Assembly, a discrete group, comprised of 236
14
elected officials during their terms of service. The trial court
correctly ruled that Fielden does not require facial invalidation of
OCGA §
16-11-34.1 (a) as unconstitutionally overbroad, because
OCGA §
16-11-34.1 (a) is far more narrowly tailored than OCGA
§
16-11-34 (a) and any infringement of protected expression cannot
be deemed “substantial,” relative its legitimate sweep.
2. The appellants contend that subsections (f) and (g) of OCGA
§
16-11-34.1 “chill[ ] large swaths of constitutionally protected
speech” and are unconstitutionally overbroad, because “there is no
limitation in scope requiring the activities ‘either cause the untimely
termination of the lawful meeting...
...862 (11th Cir. 2013).11
11 In Freeman, we held that OCGA §
16-11-39 (a), defining “disorderly
conduct” as acting “in a violent or tumultuous manner toward another person
15
The appellants contend that OCGA §
16-11-34.1 (f) and (g) “are
overbroad in ways similar to laws that have been struck down by”
this Court and the United States Supreme Court, citing McKenzie v.
State, 279 Ga....
...regulations that apply only to obscene speech, speech directed at minors,
speech intended to harass, or speech not welcomed by the listener, but instead
also applies to speech that is merely indecent, heard by adults, welcomed by
16
OCGA §
16-11-34.1 (f) makes it a crime
for any person willfully and knowingly to enter or to
remain in any room, chamber, office, or hallway within
the state capitol building or any building housing
committee offices, committee r...
...or either house thereof with intent to disrupt the orderly
conduct of official business or to utter loud, threatening,
or abusive language or engage in any disorderly or
disruptive conduct in such buildings or areas.
In very similar terms, OCGA §
16-11-34.1 (g) makes it a crime “to
parade, demonstrate, or picket” in those same places with intent to
disrupt the orderly conduct of official business.
“When interpreting a statute, we must give the text its plain
and ordinary meaning, view it in the context in which it appears,
the listener, and spoken with intent to please or amuse. McKenzie,
279 Ga. at
267. McKenzie is not controlling here, given that OCGA §
16-11-34.1 (f) and (g)
are content-neutral in their impact on protected expression....
...“If the statutory text is clear and unambiguous, we
attribute to the statute its plain meaning, and our search for
statutory meaning is at an end.” Major v. State,
301 Ga. 147, 150 (1)
(800 SE2d 348) (2017) (citation and punctuation omitted). In the
context of OCGA §
16-11-34.1 as a whole, subsections (f) and (g) are
not ambiguous....
...disrupt legislative business, as discussed in Division 1, supra, and
18
Fielden, therefore, does not require facial invalidation of OCGA § 16-
11-34.1 (f) and (g) as unconstitutionally overbroad.
3. The appellants contend that OCGA §
16-11-34.1 (a) is
“unconstitutionally vague[, under the Georgia Constitution,] as its
terms fail to give fair warning to a citizen as to what conduct is
permitted and insufficient guidance to law enforcement as to what
conduct is criminal....
...meaning, and to avoid a construction that makes some language
mere surplusage.” (citation and punctuation omitted)).
21
The appellants have not shown that, taking the allegations of
the complaint as true, OCGA §
16-11-34.1 (a) fails to put a person of
ordinary intelligence on notice of the conduct that is prohibited....
...And, although the terms “recklessly” and
“knowingly” are used in the alternative and describe different states
of mind, both terms are used throughout the Criminal Code,
sometimes together,14 and are found in common usage.15 For the
foregoing reasons, OCGA §
16-11-34.1 (a) is not so vague as to violate
the due process clause of the Georgia Constitution, and the trial
14 See, e.g., OCGA §§
16-5-45;
16-11-101.1.
15 See Major, 301 Ga....
...or interfere with the operation of any public school contains words
of ordinary meaning that give constitutionally sufficient notice as to
the statute’s application); Fielden,
280 Ga. at 444-445.
4. The appellants contend that subsections (f) and (g) of OCGA
§
16-11-34.1 are unconstitutionally vague....
...building or certain designated places connected with the official
business of the General Assembly. Through the repeated use of “or,”
they argue, these provisions provide officers no guidance at all about
what conduct could be disruptive under OCGA §
16-11-34.1 (f) and
(g) and “give an impermissible level of discretionary authority to
make determinations about what conduct could be disruptive under
[OCGA] §
16-11-34.1 (f) and (g) and to enforce the law — through
23
criminal arrests — in an arbitrary and potentially discriminatory
manner.” They also argue that loud volume of speech alone, “without
additiona...
... enforcement. See Poole,
262 Ga. at 719; Banta,
281 Ga. at 616-617
(1); Lindsey,
277 Ga. at 773 (1); Mixon,
226 Ga. at 870 (1).
As discussed in Division 2, supra, the most natural reading of
subsections (f) and (g), viewed in the context of OCGA §
16-11-34.1
as a whole, is that these provisions prohibit (1) willfully and
knowingly entering or remaining in designated areas that are
involved with the operation of the General Assembly with intent to
disrupt the orderly conduct of official...
...conduct and does not encourage arbitrary and discriminatory
enforcement and, therefore, is not unconstitutionally vague);
Fielden,
280 Ga. at 444-445 (holding that OCGA §
16-11-34 (a) is not
unconstitutionally vague). The appellants have not shown that
OCGA §
16-11-34.1 (f) and (g) are susceptible of discriminatory
enforcement simply because they provide several alternative ways
of violating their provisions or because they do not require proof of
an actual disruption resulting in the untimely termination or
substantial impairment of the conduct of a lawful meeting. For the
foregoing reasons, OCGA §
16-11-34.1 (f) and (g) are not so vague as
to violate the due process clause of the Georgia Constitution, and the
trial court did not err in dismissing the appellants’ facial vagueness
challenge....
...governor’s office was “inherently expressive” and was protected
under the Georgia Constitution.
We do not reach the merits of Cannon’s as-applied claim,
however, because the complaint does not allege that Cannon
engaged in any conduct that is prohibited by OCGA §
16-11-34.1.17
In the complaint, the appellants allege that, before Cannon was
arrested in March 2021, she had knocked on one of the doors to the
governor’s office, seeking information regarding when the governor
was going to sign a particular bill....
...17 The record does not reflect any disposition of the charges against
Cannon.
27
have been expected to prevent or disrupt a legislative session or a
meeting of members of the General Assembly in violation of OCGA
§
16-11-34.1 (a). The appellants do not allege that Cannon was
occupying, parading, demonstrating, or picketing in any of the
spaces designated in OCGA §
16-11-34.1 (f) or (g), where the official
business of the General Assembly is conducted....
...To the contrary, the appellants
specifically allege that Cannon did not intend to disrupt any official
business of the General Assembly. Regardless if any other statute
might prohibit the conduct for which the complaint alleges that
Cannon was arrested, the Code section at issue in this case, OCGA
§
16-11-34.1, does not prohibit the conduct alleged in the complaint.
Therefore, Cannon’s as-applied challenge to the Code section fails.18
18 We express no opinion about the merits of the as-applied challenges of
the rest of the appell...
...But it is nevertheless pretty clear to me
that the statute does include within its sweep a material amount of
speech and expressive conduct protected by clearly established First
Amendment caselaw, and perhaps also the Georgia Constitution.
Like the statute at issue in Fielden, OCGA §
16-11-34.1 (a) on its
face prohibits speech or expressive conduct without any requirement
that the speaker or actor (1) intend to disrupt any official business,
or (2) actually disrupt the conduct of official business....
...32
during a meeting. But it also may include core political speech that
might be considered disruptive merely by virtue of its volume, tone,
or content. Similar problems also infect subsections (f) and (g) of
OCGA §
16-11-34.1.
These problems will remain until the General Assembly
corrects subsections (a), (f), and (g).21 And until such amendments
occur, law enforcement charged with the security of the covered
locations and the people within them wi...
...I am authorized to state that Chief Justice Boggs, and Justice
Warren, Justice Bethel, Justice McMillian, and Justice Colvin join
in this concurrence.
40
Decided October 31, 2024.
OCGA §
16-11-34.1; constitutional question....
