In Warren v. State, the Georgia Supreme Court held that Georgia law does not prohibit a person from sending a picture of nude genitalia to another adult’s cell phone.
In this case, the indictment alleged that the defendant sent an unsolicited text message containing a picture of his genitals to a woman and did not notify her that the text contained nudity in violation of O.C.G.A. § 16-12-81. That statute, which was enacted in 1970, reads as follows:
“A person commits the offense of distributing material depicting nudity or sexual conduct when he sends unsolicited through the mail or otherwise unsolicited causes to be delivered material depicting nudity or sexual conduct to any person or residence or office unless there is imprinted upon the envelope or container of such material in not less than eight-point boldface type notice that the material inside depicts nudity.”
The Court reasoned that the statute’s specific prohibition against sending material depicting nudity through the mail is “aimed at tangible material that is delivered in a tangible manner,” which the defendant did not do.
The Court stated that the statute’s instructions that the notice be printed on the “envelope or container,” was designed so that the mail could be returned to the sender if the receiver does not want to open it. Thus, the “material” contemplated by the statue is the type which would come in an envelope or container capable of having a notice imprinted on it and capable of being either opened or returned to the sender. This, of course, cannot be accomplished with a text message. Therefore, the Court held that the defendant did not violate the statute by sending a digital picture of his genitals via text message. As a result, the Court ruled that the defendant’s case should be dismissed.
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