Briggs v. State

HUNSTEIN, Presiding Justice,

concurring specially.

I agree with the dissent that the statute is facially overbroad and that its overbreadth is “not only real but substantial as well, judged in relation to the law’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U. S. 601, 615 (93 SC 2908, 37 LE2d 830) (1973). However, unlike the dissent, I would not needlessly cast OCGA § 16-8-60 (b) aside but rather would fulfill this Court’s responsibility to effectuate *333the legislative intent and save it by means of a narrowing construction that would limit its application to media that has been stolen or “pirated.” Because the majority applies this narrowed construction to the statute, albeit without acknowledging that it is limiting the statute’s scope to avoid overbreadth problems, I concur specially in the judgment of the majority opinion.

As we have recently noted, the “effect of holding a statute to be facially overbroad is that enforcement is totally forbidden until and unless a limiting construction so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression. [Cit.]” State v. Fielden, 280 Ga. 444, 448 (629 SE2d 252) (2006). In Fielden the Court found overbroad a statute that made it a misdemeanor offense to “recklessly or knowingly commit[ ] any act which may reasonably be expected to prevent or disrupt a lawful meeting.” Id. at 444. The statute was flawed because it did not require any actual disruption or prevention of a lawful meeting and did not require the offender to specifically intend to disrupt or prevent the meeting. See id. at 447. Although we noted that our sister states in assessing their public meeting disruption statutes had been able to cure the first flaw, namely, by inserting the additional requirement that the offender’s actions substantially disrupt or prevent the meeting, see id. at 448, we determined such a remedy would not alone suffice to cure our statute because of its second flaw, namely, the intent of the offender. In light of the statute’s express language focusing specifically upon the offender’s intent to commit “any act” that might be expected to disrupt a lawful meeting, this Court declined to follow the dissenting position, which would have required us to rewrite the statute and substitute an intent the Court selected for the intent expressly chosen by the Legislature.

The dissent in this case now asserts that OCGA § 16-8-60 (b) must be cast aside because of an overbreadth in its language that this Court cannot cure by means of a narrowing construction. Such a construction, however, is simple in comparison to the changes that would have been required to uphold the statute in Fielden, supra. Contrary to the dissent’s claim, this Court would not be inventing a “purpose” for OCGA § 16-8-60 (b): the Legislature’s purpose is already contained within the language of the statute and reflects its intent to criminalize the sale and distribution of unauthorized reproductions of recorded commercial speech. That purpose is so palpable that the majority opinion construes the statutory language accordingly, although without acknowledging that its interpretation constitutes a narrowing of the statute. Achieving this constitutional purpose does not require rewriting the statute to substitute this Court’s intent in place of express legislative language to the contrary. See Fielden, supra. Rather, it requires narrowing the scope of the *334existing statutory language to avoid its unintended impact on constitutionally-protected anonymous speech. By interpreting OCGA § 16-8-60 (b) in this manner, the Court is fulfilling its proper role, not usurping the role of the Legislature.

Our judicial responsibility requires us to consider the legislature’s intent in enacting the law and to construe the statute to give effect to that intent when possible. This role means that we must give a narrowing construction to a statute when possible to save it from constitutional challenge. [Cits.]

Clark v. Wade, 273 Ga. 587, 598 (IV) (544 SE2d 99) (2001).

Therefore, because as a matter of reasonable judicial construction I would apply a narrowing construction to OCGA § 16-8-60 (b) and reject the dissent’s position that such a construction can be accomplished only by substantial legislative revision, I join only in the majority’s disposition of this appeal.