West v. State

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, the 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 SCt 1700, 152 LE2d 771 2002; accord Final Exit Network, Inc. v. State of Georgia, 290 Ga. 508 1 722 SE2d 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, 132 SCt 2537, 2544 183 LE2d 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 SCt 2908, 37 LE2d 830 1973. Accord State v. Fielden, 280 Ga. 444, 445 629 SE2d 252 2006 ‘Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’ Citations omitted..