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 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, 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, 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 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 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 ‘because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.’.
