The Georgia Supreme Court on Monday threw out a criminal charge against a man who sent a woman an unsolicited text message that included a photo of his tattooed genitals.
It ruled the 1970 mailing law he was charged with breaking doesn’t cover the text message he sent.
In a unanimous opinion, the court handed a victory to Charles Leo Warren III, who faced a felony charge and up to three years in prison. In October 2012, the 31-year-old landscaper from Cartersville texted a photo of his penis with a suggestive tattooed inscription to a woman described in court filings as a married mother with two young children. She complained to police, who arrested Warren.
A Cherokee County grand jury indicted Warren on a charge of distribution of material depicting nudity, a criminal statute enacted in 1970 to punish publishers who mailed pornographic magazine advertisements to unsuspecting consumers.
Under the statute, it is unlawful for a person to send “unsolicited through the mail or otherwise” material that depicts nudity or sexual conduct unless there is imprinted “upon the envelope or container” a warning in at least eight-point boldface type.
The warning must say: “The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender.”
But the court’s ruling, written by Chief Justice Hugh Thompson, said this law could not be used against Warren, who sent the photo in a text message from his cellphone.
The ordinary meaning of the words in the statute address “a tangible envelope or container on which the required notice must be imprinted,” Thompson wrote. “This conclusion is reinforced by the fact that the imprinted notice on the envelope or container must be in ‘eight-point boldface type’ and must say that the ‘container’ should be ‘returned’ to the sender if the addressee does not want to ‘open’ it.”
For this reason, the ruling said, the prohibition “does not apply to the text message that (Warren) sent in this case.”
Donald Roch II, a Canton lawyer who represented Warren, said the 1970 statute did what it was intended to do.
“It served its purpose back in the day,” Roch said. “But today, you just don’t get those kinds of solicitations in the mail.”
As for the court’s ruling, Roch said, “Obviously we’re pleased and looking forward for Mr. Warren to move on from this.”
About the Author
