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

                                         2
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,

                                       3
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

                                        4
(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

                                        5
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).
                                          6
      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


                                        7
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

                                         8
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 –

                                         9
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

                                       10
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

                                         11
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

                                         12
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

                                         13
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

                                       14
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

                                       16
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).

                                         17
      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 –

                                        18
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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