Court Hears Arguments on Constitutionality of Exploitation Statute

The defense contends that the statute is unconstitutionally overbroad in violation of the First Amendment. In it’s brief, the defense wrote that the First Amendment “allows an adult to talk dirty to a child as long as the dirty talk is not harmful or solicitive.”

The State responded that “this is a case about explicitly sexual internet contact knowingly made to the targeted child and intended to cause sexual arousal or satisfaction for the defendant or the child. The State has the right and the duty to protect children from this type of harmful contact.”

The statute at issue is O.C.G.A. 16-12-100.2(e)(1) which provides that, “A person commits the offense of obscene internet contact with a child if…the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person…” A conviction for this offense carries a punishment of up to 10 years in prison.

During oral argument, the defense noted that while the statute surely has a legitimate purpose, its language criminalizes many types of constitutionally protected speech. For instance, the defense pointed out that the statute would criminalize an adult reciting content of the novel Fifty Shades of Grey to a child, which would be protected speech under the First Amendment.

Justice Nahmias was very active during oral argument and appeared to be quite receptive to the defense’s position.

In Ex Parte Lo, the Texas Court of Criminal Appeals found an almost identical statute to be unconstitutional. The Court held that “[t]he State may not justify restrictions on constitutionally protected speech on the basis that such restrictions are necessary to effectively suppress constitutionally unprotected speech, such as obscenity, child pornography, or the solicitation of minors.” The Court concluded that “[a]lthough the State has a compelling interest in protecting children from sexual predators, this explicit sexual communications provision is not narrowly drawn to achieve that legitimate goal.

We will continue to monitor this case and report back when the Supreme Court reaches a decision.