State Court Rules Man Who Texted Photo of Tattooed Privates Can't Be Prosecuted

The Georgia Supreme Court Monday overturned the Cherokee County indictment of a man who allegedly texted an image of his tattooed genitals to a woman.

The court ruled that Charles Lee Warren did not violate state nude-materials law and cannot be prosecuted under the 40-year-old statute. Warren was arrested in October, 2012, for sending the photo to a woman, who then called police, according to an AJC report. Warren faced three years in prison.

Warren was charged under a 1970s law that prohibits the unsolicited distribution of sexually explicit material without a warning imprinted on its container, such as an envelope, and labeling that prompts the recipient to return to sender if unwanted.

Warren’s lawyers argued in front of the Supreme Court in November that the charge was a violation of free speech and the law was unconstitutionally vague and cannot be applied to text messaging, according to the ABA Journal.

One of Warren's lawyers argued the law is so worded that an interpretation of it could support a warning for pictures of the Coppertone girl.

In its opinion, the Supreme Court agreed the law could not be applied to Warren’s case:

At the time [the law] was enacted, an “envelope” was defined as “something that envelopes: wrapper, container, receptacle” and as “a flat flexible usu[ally] paper container in many sizes and constructions made by die cutting and gluing with an overlapped back seam and with bottom and closure flaps both adhering to the back portion” …

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. We thus conclude that the general prohibition of the statute does not apply to the text message that appellant sent in this case. The trial court therefore erred in denying appellant’s general demurrer to the indictment.”

Read the entire opinion here