A text message containing a photo of a man’s penis could prompt the Georgia Supreme Court to throw out a 43-year-old law that requires a warning on the outside of the envelope when sending depictions of nudity.
Obviously, no one in 1970 envisioned smartphones or the Internet, but two attempts by the General Assembly to update the law failed. One option for the court is to rule that there’s no crime committed since the law is impossible to comply with because there’s no envelope on a text message.
But the Cherokee County man charged with breaking the law, Charles Leo Warren III, wants the law declared unconstitutional.
Warren is charged with sending a photo in October 2012 showing off a tattoo on his penis that read: “STRONG E nuf 4 A MAN BUT Made 4 A WOMAN.”
The woman who received it, Shari Watson, a married mother with young children, complained to police that she didn’t know how he got her cellphone number and officers arrested him.
In the packed courtroom Monday, Justice Keith Blackwell wondered aloud if the law makes it a crime for a newspaper to include a Coppertone sunscreen advertisement featuring a photo of a dog pulling down a girl’s bathing suit. Or would Reinhart College’s drama club break the law it if went to a park to act out the restaurant scene from “When Harry Met Sally” in which one character demonstrates the sounds of a fake orgasm because that’s a verbal depiction of nudity.
Justice David Nahmias noted that many parents at his 10-year-old son’s football games photograph the celebratory butt slapping after plays. Are they breaking the law to email them, he asked.
Warren’s lawyer, Donald Roach II, argued that appeals courts have imposed tests for laws that limit free speech, especially when they limit messages because of what they contain.
“When you have a statute like this, a content-based statute, the statute is on trial, not the defendant,” Roach said.
The test requires that the law be very specific, limited in what it covers, is the least-restrictive measure possible, and serve a compelling public interest.
Nahmias put Cherokee County Assistant District Attorney Cliff Head to the test.
“What is the compelling state interest in this case?” the justice asked.
“Protecting order and morality,” Head answered. “… Order and morality begin at home, in the ‘castle.’ You don’t want strangers sending you nudity, sexual conduct. You don’t want those pictures sent to you. You don’t want to look at them. The only way you can avoid looking at them if they are sent to you is to have a notice.”
Head admitted the court may declare the law unconstitutional.
“Then, I guess I’ve got to go back to the Legislature,” he said.
The justices will have four to six months to ponder the case before deciding. But Roach noted that appeals courts often latch onto technical details as a way to avoid overturning a law.