In the Supreme Court of Georgia
Decided: July 5, 2016
S16A0323. SCOTT v. THE STATE.
HUNSTEIN, Justice.
This interlocutory appeal presents a facial constitutional challenge to
subsection (e) of the Computer or Electronic Pornography and Child
Exploitation Prevention Act, OCGA § 16-12-100.2, which criminalizes the
offense of “obscene Internet contact with a child.” Appellant Jack Scott was
indicted in January 2015 on two counts of that offense, arising from alleged
sexually explicit online communications in which he took part in late 2013 with
a minor under the age of 16. Scott thereafter filed a general demurrer,
contending that OCGA § 16-12-100.2 (e) 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 the demurrer but granted
Scott a certificate of immediate review. Scott filed an application for
1
Scott’s general demurrer also cited the Georgia Constitution’s free speech
clause, see Ga. Const. of 1983, Art. 1, Sec. 1, Par. 5, and raised an additional
challenge under the so-called “Dormant Commerce Clause.”
interlocutory appeal, and we granted the application only to review the merits
of his First Amendment overbreadth challenge. We now hold that, when
properly construed, subsection (e) does not effect a real and substantial
constraint upon constitutionally protected expression. Subsection (e) therefore
does not on its face violate the First Amendment, and the trial court properly
denied Scott’s demurrer. Accordingly, we affirm.
1. In general, “[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 SCt 1700, 152 LE2d 771) (2002); accord Final Exit Network, Inc. v. State
of Georgia, 290 Ga. 508 (1) (722 SE2d 722) (2012). Though American
jurisprudence has recognized a few narrowly defined forms of expression that
are categorically excluded from First Amendment protection, see United States
v. Alvarez, 132 S.Ct. SCt 2537, 2544 (183 LE2d 574) (2012) (enumerating
categories of historically unprotected speech, such as defamation, obscenity, and
fraud), laws purporting to prohibit or regulate speech falling outside those
narrow bounds on the basis of its content are subject to “exacting scrutiny.” Id.
at 2548. To be valid, such laws “must be narrowly drawn and represent a
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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) (“‘(b)ecause First Amendment freedoms need
breathing space to survive, government may regulate in the area only with
narrow specificity.’”).
To maintain the requisite “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. See United States v. Williams, 553
U.S. 285, 292 (128 SCt 1830, 170 LE2d 650) (2008); New York v. Ferber, 458
U.S. 747, 768-769 (102 SCt 3348, 73 LE2d 1113) (1982). This doctrine
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,
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; see also Ferber, 458 U.S. 747,
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768-769. Thus, the overbreadth doctrine, while allowing facial overbreadth
challenges without regard to whether the law in question might be constitutional
if applied to the litigant at hand, also erects a high bar for establishing facial
overbreadth, requiring a finding that the law’s overbreadth is “substantial, not
only in an absolute sense, but also relative to [its] plainly legitimate sweep.”
Williams, 553 U.S. at 292. Accord Ashcroft v. Free Speech Coalition, 535 U.S.
257 (122 SCt 1389, 152 LE2d 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 (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 SE2d 547) (1990) (same).
To assess the extent of a statute’s effect on protected expression, a court
must determine what the statute actually covers. Accordingly, the first step in
any overbreadth analysis is to construe the statute in question. Williams, 553
U.S. at 293; accord United States v. Stevens, 559 U.S. 460, 474 (130 SCt 1577,
176 LE2d 435) (2010). We now undertake that step, reviewing the trial court’s
order de novo. Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731
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(2) (691 SE2d 218) (2010).
2. OCGA § 16-12-100.2 (e) (1) provides that an individual
commits the offense of obscene Internet contact with a child if he
or she has contact with someone he or she knows to be a child or
with someone he or she believes to be a child via a computer
wireless service or Internet service, including but not limited to, a
local bulletin board service, Internet chat room, e-mail, or instant
messaging service, and the contact involves any matter containing
explicit verbal descriptions or narrative accounts of sexually
explicit nudity, sexual conduct, sexual excitement, or
sadomasochistic abuse that is intended to arouse or satisfy the
sexual desire of either the child or the person, provided that no
conviction shall be had for a violation of this subsection on the
unsupported testimony of a child.
OCGA § 16-12-100.2 (e) (1). The crime so defined is a felony, except where
the victim is at least 14 years old and the accused was 18 or younger at the time
of the crime, in which case it is a misdemeanor. Id. at (e) (2).
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 SE2d 337) (2013). In our interpretation of statutes, we thus look to the text
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of the provision in question, and its context within the larger legal framework,
to discern the intent of the legislature in enacting it. See id.; OCGA § 1-3-1 (a),
(b).
Deconstructing the multifaceted substantive provisions of subsection (e)
(1), it is apparent that the actus reus of the offense at issue is the establishing of
“contact.”2 The text of the statute is clear that, to constitute a crime, such
contact must be made with a person known or believed to be a “child,” a term
defined in the statute as “any person under the age of 16 years.” OCGA § 16-
12-100.2 (b) (1). In addition, the contact must be accomplished by way of a
computer wireless service or Internet service, and it must involve “explicit
verbal descriptions or narrative accounts” of subjects falling within any of four
categories of offending content: “sexually explicit nudity,” “sexual conduct,”
“sexual excitement,” or “sadomasochistic abuse.” These terms are defined
elsewhere in the Georgia Code, see id. at (b) (4) - (7), as follows:
• “Sexually explicit nudity” is defined as “a state of undress so as to expose
the human male or female genitals, pubic area, or buttocks with less than
“Contact” is not defined in the statute, so we look to its ordinary meaning: “an
2
occurrence in which people communicate with each other.” Merriam-Webster’s
Online Dictionary, http://www.merriam -webster.com/dictionary/contact (website last
viewed June 23, 2016).
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a full opaque covering, or the showing of the female breast with less than
a fully opaque covering of any portion thereof below the top of the nipple,
or the depiction of covered or uncovered male genitals in a discernibly
turgid state.” OCGA § 16-12-102 (7).
• “Sexual conduct” is defined as “human masturbation, sexual intercourse,
or any touching of the genitals, pubic areas, or buttocks of the human
male or female or the breasts of the female, whether alone or between
members of the same or opposite sex or between humans and animals in
an act of apparent sexual stimulation or gratification.” OCGA § 16-12-
100.1 (a) (7).
• “Sexual excitement” is defined as “the condition of human male or female
genitals or the breasts of the female when in a state of sexual stimulation.”
OCGA § 16-12-100.1 (a) (8).
• “Sadomasochistic abuse” is defined as “flagellation or torture by or upon
a person who is nude or clad in undergarments or in revealing or bizarre
costume or the condition of being fettered, bound, or otherwise physically
restrained on the part of one so clothed.” OCGA § 16-12-100.1 (a) (6).
Following this list of offending content categories is the phrase, “that is
intended to arouse or satisfy the sexual desire of either the child or the person.”
The pivotal question is what term or phrase within subsection (e) this qualifying
phrase is intended to modify. Does the phrase modify only the term
“sadomasochistic abuse” that immediately precedes it? Or the entire series of
offending “verbal descriptions or narrative accounts” previously set forth? Or
the “contact” itself? The answer to this question is critical not only to
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determining the scope of conduct within the statute’s reach but also to assessing
whether the scope of proscribed conduct is too broad to pass constitutional
muster.
Under the canon of statutory construction known as the “rule of the last
antecedent,” a qualifying phrase “‘should ordinarily be read as modifying only
the noun or phrase that it immediately follows.’” Lockhart v. United States, 136
S.Ct. SCt 958, 962 (194 LE2d 48) (2016); accord Coleman, 294 Ga. at 174.
However, this rule is not absolute, and the inference it raises may be rebutted
where “the structure and internal logic of the statutory scheme” so militate.
Lockhart, 136 SCt at 962-963, 965; see also Paroline v. United States, 134 S.Ct.
SCt 1710, 1721 (188 LE2d 714) (2014) (recognizing that this inference can be
overcome by “‘other indicia of meaning’”); Coleman, 294 Ga. at 174
(recognizing that this canon applies only “‘where no contrary intention
appears.’”). Under the alternative “series-qualifier principle,” a qualifying
phrase appearing at the end of a series should be read to apply to all items in the
series “when such an application would represent a natural construction.”
Lockhart, 136 S.Ct. SCt at 965. While these maxims can be helpful in
discerning the meaning of a qualifying phrase, they should not be applied
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mechanically, and, in the end, we must glean the import of such a phrase by
examining its situation within and relationship to the entire statutory text, as
well as the intended purpose of the statutory provision. See id. at 964 (selecting
construction of qualifying phrase that would yield the least redundancy among
terms within the statute and would most closely follow the structure of a related
statute upon which the provision was patterned); Paroline, 134 S.Ct. SCt at
1721; Coleman, 294 Ga. at 173-174.
Here, aspects of the structure of subsection (e) (1) and the particular
verbiage of the qualifying phrase lead us to reject both the rule of the last
antecedent and the series-modifier principle, in favor of a construction under
which the qualifying phrase modifies the prohibited “contact” itself: in other
words, it is the contact “that is intended to arouse or satisfy the sexual desire of
either the child or the person.” In reaching this conclusion, we note that the
qualifying phrase appears after the list of four enumerated offending content
categories. Were we to apply the rule of the last antecedent, we would read the
qualifying phrase as modifying only “sadomasochistic abuse.” Compared to the
other categories in this list – “sexually explicit nudity,” “sexual conduct,” and
“sexual excitement” – this last category is arguably the most egregious –
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involving “torture” or “flagellation” – and certainly the most narrowly defined.
It thus seems unlikely that the legislature intended to enumerate, on par with
three relatively broad categories of offending content, the very narrow content
category of “sadomasochistic abuse that is intended to arouse or satisfy the
sexual desire of either the child or the person.” See, e.g., Paroline, 134 S.Ct.
SCt at 1721 (construing qualifying clause in a manner best according with
“common sense”); United States v. Bass, 404 U.S. 336, 341 (92 SCt 515, 30
LE2d 488) (1971) (declining to apply rule of last antecedent where its
application would be inconsistent “with any discernible purpose of the statute”).
For this reason, we find the rule of the last antecedent to be inapposite.
In considering whether the qualifying phrase might, under the series-
modifier principle, be intended to modify all four categories of offending
content, we note that the phrase makes reference to the sexual desire “of either
the child or the person.” In making specific reference back to either the child
victim or the accused, this provision requires a specific intent to “arouse or
satisfy” one of the two parties to the allegedly criminal contact. It is thus the
“contact” to which the specific intent is linked, rather than any or all of the
categories of offending content described in the statute. By specifying that the
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victim or the person making the contact be the object of the intent to arouse, the
statutory text precludes a construction that links the intent to arouse to the
creator of the offending content, rather than to the initiator of the online contact.
Though this construction does not necessarily flow naturally from the
grammatical structure of subsection (e) (1), we believe it is the only tenable
reading that gives meaning to the article “the” that precedes “child” and
“person” in the qualifying phrase. See Kennedy v. Carlton, 294 Ga. 576 (2)
(757 SE2d 46) (2014) (statutes must be construed to give meaning to all terms
therein). Such a construction, moreover, significantly narrows the scope of the
statute and thus effectuates our obligation, in the interpretation of statutes, to
adopt a readily available limiting construction where necessary to avoid
constitutional infirmity. See Miller, 260 Ga. at 673-674 (reading a specific
intent requirement into Anti-Mask Act to avoid overbreadth problems); accord
Watson v. State, 293 Ga. 817, 820 (1) (750 SE2d 143) (2013) (“even statutes
that impose content-based restrictions on free speech will not be deemed facially
invalid if they are readily subject to a limiting construction”).
In summary, we read OCGA § 16-12-100.2 (e) (1) to prohibit only that
online contact involving verbal descriptions or narrative accounts of any of the
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four defined categories of offending content and made with the specific intent
to arouse or satisfy the sexual desires of the accused or the child victim. The
crime of obscene Internet contact with a child is thus comprised of (1) the actus
reus – the contact, performed under particular circumstances (with one known
or believed to be age 15 or younger; via specified online means; involving
verbal descriptions or narrative accounts of content falling into any of the four
defined categories) and (2) the mens rea – the specific intent on the part of the
accused that his contact will arouse or satisfy the sexual desire of the child or the
accused. Having thus construed the statute, we now turn to the question of
whether the statute, so construed, can on its face survive First Amendment
overbreadth scrutiny.
3. OCGA § 16-12-100.2 (e) is one among several substantive provisions
of a larger statutory enactment whose very title makes clear that its purpose is
preventing the exploitation of children via electronic means. 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 SCt 1691, 109 LE2d 98) (1990). We nonetheless
have the obligation to ensure that, in its zeal to promote this worthy aim, our
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legislature has not unwittingly curtailed legitimate modes of expression in a real
and substantial way. See Final Exit Network, 290 Ga. at 511; Miller, 260 Ga.
at 673.
In undertaking this assessment, we must determine whether “‘a substantial
number of [the statute’s] applications are unconstitutional, judged in relation to
[its] plainly legitimate sweep.’” Stevens, 559 U.S. at 473. Within the “plainly
legitimate sweep” of statutory prohibitions are two unprotected categories of
speech relevant to this case, obscenity and child pornography. See Williams,
553 U.S. at 288-289. Obscenity is material “which, taken as a whole, appeal[s]
to the prurient interest in sex, . . . portray[s] sexual conduct in a patently
offensive way, and . . . taken as a whole, do[es] not have serious literary, artistic,
political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (93 SCt
2607, 37 LE2d 419) (1973); see also Ginsberg v. New York, 390 U.S. 629, 633
(88 SCt 1274, 20 LE2d 195 (1968) (sanctioning categorical prohibition on
material that, while not obscene in relation to adult sensibilities, is found to be
obscene as to minors). Child pornography encompasses visual depictions of
sexual conduct involving children younger than a specified age. See New York
v. Ferber, 458 U.S. 747 (102 SCt 3348, 73 LE2d 1113) (1982). Though the
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statute here certainly reaches some speech the content of which falls into one of
these two categorically unprotected forms of expression, the four enumerated
categories of offending content indisputably span expression that falls outside
this narrow swath of unprotected speech and thus into the realm of protected
expression. The question is whether the mismatch is too great to pass
constitutional muster.
In examining the permissible breadth of a statute seeking to curtail various
avenues of child exploitation in the digital age, we are, fortunately, not writing
on a blank slate. See, e.g., United States v. Williams, supra (overbreadth
challenge to federal law criminalizing pandering and solicitation of child
pornography); Ashcroft v. Free Speech Coalition, supra (overbreadth challenge
to federal law criminalizing various forms of actual and “virtual” child
pornography); Reno v. American Civil Liberties Union, 521 U.S. 844 (117 SCt
2329, 138 LE2d 874) (1997) (overbreadth challenge to federal statute
prohibiting online transmission of “obscene or indecent” messages to recipients
under the age of 18). In Reno, the Court invalidated two provisions of the
federal Communications Decency Act, which sought to protect minors from
“indecent” and “patently offensive” communications on the Internet by
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prohibiting the “knowing transmission of . . . indecent messages to any recipient
under 18 years of age” and the “knowing sending or displaying of patently
offensive messages in a manner that is available to a person under 18 years of
age.” 521 U.S. at 849, 859. The Court found the scope of these provisions too
broad in that they “effectively suppress[] a large amount of speech that adults
have a constitutional right to receive and address to one another.” Id. at 874.
While recognizing the government’s compelling interest in protecting children
from harmful content, the Court concluded that the provisions at issue were
broader than was necessary to achieve this goal. Id. at 875-879. The Court
noted that the terms “indecent” and “patently offensive” were undefined in the
statute and had the potential to encompass “large amounts of nonpornographic
material with serious educational or other value.” Id. at 877. In addition, the
Court observed that these provisions could cover a range of adult-to-adult online
communications in fora such as chat rooms, where the presence of a single
minor could render criminal what would otherwise be protected speech among
adults. Id. at 880. These considerations led the Court to conclude that the
statute’s reach was too broad to withstand First Amendment scrutiny.
In Free Speech Coalition, the Court considered the constitutionality of the
15
federal Child Pornography Prevention Act, which expanded the federal
prohibition on child pornography to reach “virtual child pornography,” in which
technology or youthful-looking adults are used to depict what appears to be, but
is not actually, children engaged in sexually explicit conduct. 535 U.S. at 239-
240. The statute also prohibited the production and distribution of material
“pandered” as child pornography, regardless of whether it actually was. Id. at
241. As in Reno, the Court invalidated the statute as overbroad, finding that its
reach was too far beyond the unprotected categories of obscenity and child
pornography and that it thus improperly “abridge[d] the freedom to engage in
a substantial amount of lawful speech.” Id. at 256. With regard to virtual child
pornography, the Court found no justification for a ban on such speech, because
its definition did not necessarily exclude works containing serious literary,
artistic, educational, or other value, and because, unlike with real child
pornography, actual children are not used as subjects in – and thereby victims
of – the production process. Id. at 246-250. With regard to the pandering
provision, the Court held that it was overbroad because it applied to materials
without regard to their actual content and applied to those in possession of such
materials regardless of how far removed in the distribution chain they were from
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the actual panderer. Id. at 257-258.
By contrast, in Williams, the Court upheld a child pornography pandering
and solicitation provision that was enacted following the invalidation of its
predecessor in Free Speech Coalition. 553 U.S. at 289. As the Court described
it, “[r]ather than targeting the underlying material, the statute bans the collateral
speech that introduces such material into the child-pornography distribution
network.” Id. at 293. In addition, the Court noted that the statute’s definition
of child pornography “precisely tracks the material held proscribable in Ferber
and Miller.” Id. Other features of the statute were also significant in
maintaining its validity, including its scienter elements, which require both
“knowing” pandering and either the defendant’s belief that the material is child
pornography or the intent to make another believe this is so. Id. at 294-296. See
also Osborne, 495 U.S. at 115 (scienter requirement one factor in conclusion
that statute banning possession of child pornography was valid); Miller, 260 Ga.
at 674 (specific intent requirement cited as significant in limiting scope of
statute in question and, thus, saving it from overbreadth). Cf. State v. Fielden,
280 Ga. 444, 447 (629 SE2d 252) (2006) (absence of specific intent requirement
cited as factor in invalidating statute in question).
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Assessing the statute here against this backdrop, we conclude that, under
the narrow construction we have adopted above, OCGA § 16-12-100.2 (e) (1)
does not prohibit a real and substantial amount of constitutionally protected
expression. The key to this conclusion is the statute’s mens rea element, which
requires the accused, with the knowledge or belief that the victim is in fact a
child younger than 16, to make contact with that victim with the specific intent
to arouse or satisfy his own or the victim’s sexual desire. This specific intent
requirement dramatically reduces the range of expression that is subject to the
statutory prohibition. It is also, to some degree, a proxy for elements of the
Miller v. California obscenity standard, namely, that the material appeals to a
“prurient interest in sex” and that it “lacks any literary, artistic, political, or
scientific value,” see 413 U.S. at 24: it is difficult to envision a scenario in
which an adult’s sexually explicit online communication with a child younger
than 16, made with the intent to arouse or satisfy either party’s sexual desire,
would ever be found to have redeeming social value. The specific intent
requirement also eliminates the possibility that innocuous communications – for
example, a mother’s email to her 15-year-old son admonishing him not to read
Penthouse or a teacher’s online lecture describing Michelangelo’s David –
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might fall within the statute’s proscriptions. See Osborne, 495 U.S. at 113-114
(upholding statute where narrow construction avoids punishing innocuous
conduct). In addition, this requirement avoids the problem identified in Reno
of potential overreach into the realm of adult-to-adult communications to which
children might incidentally be exposed, again foreclosing unintentional
encroachment into protected speech.
“Invalidation for overbreadth is strong medicine that is not to be casually
employed.” (Internal quotation marks omitted.) Williams, 553 U.S. at 293.
Though creative attorneys may dream up “fanciful hypotheticals” under which
the statute here reaches protected expression, id. at 301, we are not convinced
that these scenarios are sufficiently numerous or likely to warrant the statute’s
wholesale invalidation. See id. at 303 (“[t]he ‘mere fact that one can conceive
of some impermissible applications of a statute is not sufficient to render it
susceptible to an overbreadth challenge.’”). We therefore agree with the trial
court that OCGA § 16-12-100.2 (e) (1) is not unconstitutionally overbroad
under the First Amendment. Accordingly, we affirm.
Judgment affirmed. All the Justices concur.
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