Thompson

ATLANTA (Legal Newsline) - A Georgia law that says a person who publicly advertises assisted suicide services is guilty of a felony has been deemed unconstitutional by the state Supreme Court.

In a ruling Feb. 6, the Court said the law restricts speech in violation of the free speech clauses of both the U.S. and Georgia Constitutions.

The Court reversed the decision of a trial court, which denied an assisted suicide company's motions to dismiss.

Appellants Final Exit Network Inc., Thomas Goodwin, Lawrence Egbert, Nicholas Sheridan and Claire Blehr were indicted in March 2010 by a Forsyth County grand jury on charges of offering to assist and assisting in the commission of suicide in violation of OCGA § 16-5-5 (b).

The Georgia Legislature enacted the law in 1994. It states that a 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 law is punishable by imprisonment for one to five years.

The appellants plead 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 U.S. and Georgia Constitutions.

The trial court denied the motions but granted appellants a certificate of immediate review.

The state's high court, in turn, granted the appellants' application for interlocutory appeal to consider their constitutional challenges.

Justice Hugh P. Thompson authored the Court's eight-page opinion.

"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."

Thompson said as a content-based restriction on speech, the law would stand only if it satisfies a strict level of constitutional scrutiny.

Under the strict scrutiny test, a statute is deemed unconstitutional unless the State can demonstrate it is justified by a compelling interest and is narrowly drawn to serve that interest.

"The State contends § 16-5-5 (b) was intended to 'criminalize assisted suicide in certain instances' and that the statute's restriction on speech is justified by the State's 'compelling interest in preventing suicide,'" the justice wrote.

"While a State's interest in preserving human life would be compelling, § 16-5-5 (b) is not narrowly tailored to promote this asserted interest."

And although the State attempts to portray the law as simply a ban on assisted suicide, the clear language of the statute demonstrates otherwise, Thompson said.

"The State has failed to provide any explanation or evidence as to why a public advertisement or offer to assist in an otherwise legal activity is sufficiently problematic to justify an intrusion on protected speech rights," he wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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