Criminalizing Speech in the Age of School Shootings

A sophomore at South Gwinnett High School in Gwinnett County is facing charges after posting a video on social media of a clip being put into a gun saying, “South Gwinnett, you're next.” There has been no release of the student's name or what exactly he is charged with, but according to other sources, he is most likely facing charges of terroristic threats in Georgia. 

Let's walk through this step by step starting with Georgia law and ending with my analysis and commentary of the situation at hand. 

Terroristic Threats in Georgia

The Georgia Code defines a person committing the offense of terroristic threats in Georgia as “when he or she threatens to commit any crime of violence, to release any hazardous substance, or to burn or damage any property with the purpose of terrorizing another or of causing the evacuation of a building, place of assembly, or facility of public transportation or otherwise causing serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience.” O.C.G.A. §16-11-37. Georgia Courts hold that “the crime of terroristic threats has been completed as soon as the communication of threat is done to terrorize another.” Wilson v. State, 151 Ga. App. 501 (1979). Even if there is no direct evidence that the threats were intended to terrorize another, the jury “may infer such a purpose from circumstances surrounding the threats.” Jordan v. State, 214 Ga. App. 346 (1994). 

To be convicted of terroristic threats, the state of Georgia must demonstrate as always that the accused person is guilty beyond a reasonable doubt. This means that a threat was communicated to the alleged victim with the intent to terrorize or the circumstances surrounding the threat were sufficient to find the threats were made for such a purpose. 

The penalty for a terroristic threats conviction in Georgia is either treated as a misdemeanor or a felony. The dividing line between the felony and misdemeanor charge is if the threat suggests the death of the victim. If a misdemeanor, then the consequences are up to one year in jail, up to $1,000 fines, or both. If a felony, then the consequences are between one to five years in prison, a fine up to $1,000, or both. The penalties will be even greater if the threat is made with the intent to retaliate or threaten any person attending a judicial or administrative proceeding, law enforcement officer, community supervision officer, probation officer, prosecuting attorney or judge relating to the commission of an offense.

Analysis

My opinion is that “terroristic threats” require that the threat is reasonable to potentially happen. Posting on social media without taking any actual steps to commit the crime should be protected speech since it does not meet the elements of a real threat. It is just foolish behavior not worthy of an arrest if there is no evidence that it could actually happen. There needs to be a clearer distinction between the crime of “terroristic threats” and the First Amendment right to free speech. 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 (2002). According to the majority of jurisdictions in the United States, most courts have excluded a small list of expressions from First Amendment protection - this includes “the communication of true threats.” Virginia v. Black, 538 U.S. 343 (2003). If no weapons or actual plans are found, and no steps are taken by the student towards committing the acts, then there is no true threat. 

Commentary

It's difficult to be a Georgia Criminal Defense Attorney. Protecting the rights of people can be unpopular, but have we completely forgotten the First Amendment? I am not saying that we shouldn't watch people who make crazy threats. But what I am saying is that without any realistic act towards committing a crime, we are criminalizing ugly and inappropriate speech. Where does this take us? Unfortunately, it takes us to where the government can say that other speech incites other unpopular things and then criminalize it. It's a slippery slope that can lead to an authoritarian society. If you or a loved one has been charged with the offense of committing terroristic threats in Georgia, contact a top-rated Georgia Criminal Defense Lawyer today. We care about protecting your rights and providing the best possible defense for your case.