Navigating OCGA § 16-11-37: Terroristic Threats and the Boundaries of Free Speech in Georgia

As criminal and constitutional lawyers at George C. Creal, Jr., P.C., we frequently encounter cases where the line between protected speech and criminal conduct is blurred. One such statute that often comes under scrutiny is OCGA § 16-11-37, Georgia’s law on terroristic threats and acts. This provision aims to protect individuals from threats of violence while navigating the robust protections afforded by the First Amendment. In this post, we’ll explore the statute’s key elements, its interplay with freedom of speech, and insights from relevant case law, including the Georgia Supreme Court’s decision in Major v. State (2017). Understanding this balance is crucial for defending clients facing charges that may infringe on constitutional rights.

Overview of OCGA § 16-11-37: Terroristic Threats and Acts

Enacted under Title 16 of the Georgia Code (Crimes and Offenses), OCGA § 16-11-37 criminalizes certain threats and acts intended to instill fear or cause disruption. The statute defines key terms and outlines offenses as follows:

• Terroristic Threat (Subsection b): A person commits this offense by threatening to (A) commit any crime of violence, (B) release a hazardous substance (as defined in OCGA § 12-8-92), or (C) burn or damage property. The threat must be made with the purpose of terrorizing another, causing evacuation of a building or public facility, causing serious public inconvenience, or in reckless disregard of the risk of such outcomes. Importantly, conviction requires corroboration beyond the testimony of the threatened party.
• Terroristic Act (Subsection c): This includes using a burning cross or similar symbol to terrorize, shooting or throwing objects at occupied conveyances, or releasing (or simulating the release of) a hazardous substance with similar intents or reckless disregard.
• Penalties (Subsections d and e): Threats are generally misdemeanors, but escalate to felonies (1-5 years imprisonment and up to 5,000), with enhanced sentences (up to 40 years and $250,000) if serious injury results or if the act retaliates against judicial participants or informants.

This statute reflects the state’s interest in safeguarding public order and safety from threats that could incite fear or chaos.

The Interplay with First Amendment Rights

The First Amendment prohibits government restrictions on expression based on content, message, or ideas, as emphasized in Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), and echoed in Georgia’s Final Exit Network, Inc. v. State, 290 Ga. 508 (2012). However, certain categories of speech—such as defamation, obscenity, fraud, and “true threats”—fall outside this protection (United States v. Alvarez, 567 U.S. 709 (2012); Virginia v. Black, 538 U.S. 343 (2003)).

OCGA § 16-11-37 targets “true threats,” which are statements where the speaker communicates a serious intent to commit unlawful violence, even without actual intent to follow through (Black, supra). Such regulations serve compelling interests: protecting individuals from fear, disruption, and potential violence (R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)). Content-based restrictions like this must survive “exacting scrutiny,” meaning they must be narrowly tailored to advance a compelling governmental need (West v. State, 300 Ga. 39 (2016); Broadrick v. Oklahoma, 413 U.S. 601 (1973)).

The statute’s inclusion of “reckless disregard” as a mens rea element has sparked debate. Recklessness involves conscious disregard of a substantial risk (Elonis v. United States, 575 U.S. 723 (2015), Alito, J., concurring in part), distinguishing it from mere negligence. This focuses on the speaker’s mindset, ensuring the law doesn’t punish innocent or careless speech.

Key Insights from Major v. State: Upholding the Statute’s Constitutionality

The Georgia Supreme Court’s 2017 decision in Major v. State, 301 Ga. 147 (2017), provides critical guidance on OCGA § 16-11-37’s constitutionality under the former version of the statute (effective in 2014). In that case, a high school student posted on Facebook: “Bruh, LCA ain’t a school… Lord, please save me before, o get the chopper out and make Columbine look childish.” Charged with a terroristic threat in reckless disregard of causing terror, the defendant challenged the statute as overbroad and vague, arguing it infringed on First Amendment rights.

• Overbreadth Challenge: The Court rejected this, holding that the statute regulates only true threats, not protected speech. Purposeful threats are concededly constitutional, and recklessness fits within “true threats” because it requires awareness that the statement could be perceived as threatening (Black, supra). The law doesn’t punish based solely on the listener’s reaction but on the speaker’s conscious disregard of risk.
• Vagueness Challenge: The statute provides fair notice to a person of ordinary intelligence, clearly prohibiting threats of violence with purposeful or reckless intent. Recklessness is a well-defined mens rea under Georgia and federal law, avoiding arbitrary enforcement (Parker v. City of Glennville, 288 Ga. 34 (2010)).
• As-Applied Challenge: The Court declined to rule on intent as a factual question for the jury, but found no unconstitutional application based on the record.

This ruling affirms that OCGA § 16-11-37 strikes a constitutional balance, allowing prosecution of threats while respecting free speech. It distinguishes from cases like Elonis (interpreting a federal statute without explicit mens rea), emphasizing Georgia’s explicit purposeful and reckless standards.

Practical Implications for Georgia Criminal Defense

For defense attorneys, Major underscores opportunities to challenge charges on intent grounds. Was the statement a true threat, or mere hyperbole, venting, or protected expression? Social media posts, like in Major, often involve context—e.g., humor, frustration, or religious phrasing—that may negate recklessness. Corroboration requirements also provide a strong defense avenue.

In constitutional challenges, argue for exacting scrutiny if the speech doesn’t fit unprotected categories. Pretrial motions to quash or demurrers, as in Major, can test the statute’s application early.

Conclusion

OCGA § 16-11-37 serves as a vital tool against threats of violence, but its enforcement must honor First Amendment limits. The Major decision reinforces the statute’s resilience against overbreadth and vagueness claims, focusing on the speaker’s intent. At George C. Creal, Jr., P.C., our experienced trial lawyers specialize in defending against such charges, ensuring clients’ rights are vigorously protected.

If you’re facing terroristic threat allegations or need constitutional counsel, contact us at George C. Creal, Jr., P.C., Trial Lawyers, via www.georgialawyer.com for a consultation. Stay informed—subscribe to our blog for more insights on Georgia criminal law.