The Georgia Supreme Court unanimously ruled that a state statute that made it illegal for anyone other than a student to direct derogatory speech at a teacher, school administrator, or school bus driver in the presence of a student is not narrow enough to stay within the bounds established by the Free Speech Clause of the First Amendment.
The skyline in Savannah, Georgia
The court ruled that Georgia’s statute was too broad in that it wasn’t tailored to meet the law’s intended purpose, which was to prevent disruptions to educational or school activities. The law, according to the ruling, also targets speech that is protected and would need to meet stricter requirements if the school wants to ban that type of speech.
Under Tinker v Des Moines Independent Community School District (US Supreme Court, 1969), schools can ban speech if it causes a material disruption of school functions or if the government has some other compelling interest that the speech interferes with. But that’s not the case here, the court found.
Generally speaking, “[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.” Though there are a few narrowly defined forms of expression that are categorically excluded from free speech protections(such as defamation, obscenity, and fraud), content based restrictions on free speech that fall outside those narrow categories are subject to “exacting scrutiny.”
Such restrictions are only valid if they are “narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.”
To respect this ‘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.
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.
While a facial overbreadth challenge may be waged without respect to whether the restriction at issue might be constitutional in a specific instance, such a challenge will only prevail where the overbreadth is “substantial, not only in an absolute sense, but also relative to [its] plainly legitimate sweep.”
The case, West v State, S16A1369 (Ga. Oct. 31, 2016), involved the arrest of Michael West in connection with a Georgia law that made it a crime for any non-student to insult or abuse a teacher, administrator, or bus driver in the presence of a student. The speech with the insult must be made on school property or on a school bus.
Mr West challenged his arrest on constitutional grounds, saying the law itself violated his free speech rights. The law renders a substantial amount of constitutionally protected speech illegal and, as a result, the supreme court didn’t pass any judgment on the merits of the case or even consider what Mr West had said. It didn’t matter, since the law itself was unconstitutional.
