In 1994, the Georgia legislature enacted OCGA § 16-5-5 b, which provides that any person “who publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide and commits any overt act to further that purpose is guilty of a felony.” Violation of the statute is punishable by imprisonment for not less than one nor more than five years. OCGA § 16-5-5 b. The issue in this case is whether §16-5-5 b is constitutional under the free speech clauses of the federal and state constitutions. Appellants Final Exit Network, Inc. “FEN”, Thomas Goodwin, Lawrence Egbert, Nicholas Sheridan, and Claire Blehr were indicted in March 2010 by a Forsyth County grand jury on charges of, inter alia, offering to assist and assisting in the commission of suicide in violation of OCGA § 16-5-5 b. Appellants pled not guilty and filed demurrers and motions to dismiss the § 16-5-5 b charges on the ground that the statute was unconstitutional on its face in violation of several constitutional provisions, including the free speech clauses of the United States1 and Georgia Constitutions.2 The trial court denied the motions but granted appellants a certificate of immediate review. We granted appellants’ application for interlocutory appeal to consider their constitutional challenges. Because we conclude § 16-5-5 b is unconstitutional under the free speech clauses of both constitutions, we reverse.
1. “As a general matter . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Punctuation omitted. Ashcroft v. American Civil Liberties Union , 535 U. S. 564, 573 122 SC 1700, 152 LE2d 771 2002. By its plain language, however, § 16-5-5 b proscribes speech based on content in that it restricts anyone who “publicly advertises, offers, or holds himself or herself out as offering that he or she will intentionally and actively assist another person in the commission of suicide.” It is not all assisted suicides which are criminalized but only those which include a public advertisement or offer to assist. This distinction takes the statute out of the realm of content neutral regulations and renders it a selective restraint on speech with a particular content. See Ward v. Rock Against Racism , 491 U. S. 781, 791 109 SC 2746, 105 LE2d 661 1989 “The principal inquiry in determining content neutrality . . . is whether the government has adopted a regulation of speech because of a disagreement with the message it conveys.”
