Few would agree it was a good idea for Charles Leo Warren III to text a photo of his tattooed genitals to a Cherokee County woman.
The question is whether it was against the law in Georgia.
A grand jury thought so. It indicted Warren, a 31-year-old landscaper from Cartersville, for distributing unsolicited material depicting nudity or sexual conduct. The felony charge calls for a sentence of up to three years in prison.
But Warren’s prosecution is on hold. The Georgia Supreme Court is now considering his challenge to a 1970 law, which was passed to punish publishers who mailed pornographic magazine advertisements to unsuspecting consumers. Warren’s lawyers argue that the decades-old law has no place in a 21st-century world with computers and smart phones that let people text and email photos with a few taps of a finger.
According to 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 notice 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.”
The law defines nudity as the showing of a person’s genitals, pubic area or buttocks.
Donald Roch II, one of Warren’s attorneys, said the law casts too wide a net.
“It was written in a time so long ago that with the modern technology we have today, this just wasn’t anticipated,” he said. “They’re trying to fit a square peg into a round hole.”
The law also regulates just about every type of nude image imaginable, from that of a newborn baby to a work of art, he said.
Among materials outlawed by the statute, unless affixed with the required disclaimer, would be books sent as gifts with artwork such as Michelangelo’s David, Warren’s lawyers have argued. Also prohibited would be magazines or fliers with the Coppertone suntan lotion advertisement featuring the well-known photo of a dog pulling down a girl’s swimsuit and revealing her buttocks, they said.
The law is clear about what precautions should be taken when someone sends unsolicited, explicit material in a letter or container, Roch said. But it is completely silent about what to do with electronic photos that cannot be put in an envelope or container, he said.
The state Supreme Court asked Warren’s lawyers and Cherokee prosecutors to address whether the law is an unconstitutional infringement of free speech. The justices also asked both sides to address whether the plain language of the statute shows that the law does not apply to electronic text messages.
The court record does not give a clear explanation as to why Warren texted the photo of his genitals to the woman, who is described as a wife and mother of young children from Canton.
Roch declined to discuss Warren’s text. When asked whether Warren and the woman knew one another, Roch responded, “They weren’t strangers. They had a business relationship.”
In court filings, Cherokee prosecutors said Warren obtained unauthorized access to the woman’s phone number through his employer. He visually assaulted the unsuspecting woman “presumably for the purpose of soliciting a clandestine sexual liaison,” prosecutors said.
Cherokee District Attorney Shannon Wallace acknowledged that Warren’s case is an unusual one. But the law applies to Warren’s alleged conduct, she said.
“It is understandable that a person would feel victimized upon receiving unsolicited and unwelcome lewd photographs by text message from a stranger or acquaintance,” she said. ” … The law, in general, is typically broad enough to cover societal issues that arise because of changes in technology.”
Still, Wallace added, the Legislature should consider enacting new laws that keep up with advances in technology.
“There is always a concern when someone receives such unwelcome images,” she said. “Our interest is in protecting our citizens from such victimization.”
Warren is appealing a pretrial ruling issued in June by Cherokee Superior Court Judge David Cannon Jr. The judge found that the law did not violate Warren’s free speech rights and also found that the statute applies to letters, faxes, texts, emails and any other method of delivery.
A person could abide by the law by sending a message prior to the photo being delivered, asking the intended recipient if he or she would like to receive such a photo. The sender could also send the warning note in the body of the message and include the photo as an attachment, Cannon said.
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