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

Georgia Supreme Court says 40-year-old law doesn't apply in Cherokee County case.

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

beth landers February 24, 2014 at 07:52 PM
what no picture? ;)
Rodger Higgins February 24, 2014 at 10:37 PM
It can be charged because text messages use the internet and sending nude photo's over the internet is a federal crime.
Laurice Herzog February 25, 2014 at 07:19 AM
Once again, common sense, which isn't that common, is thrown out the window.
John Santaella February 25, 2014 at 08:38 AM
oh beth landers. Are you so deprived?
John Santaella February 25, 2014 at 08:39 AM
rodger, it stated he did NOT violate STATE law.
JustMeCitizen February 25, 2014 at 11:47 AM
Rodger, it is not illegal so long as the sender and recipient are adults - over age 18. However, if either person is a minor, it is a serious sex crime.
Merrill Kaitz February 25, 2014 at 12:31 PM
Why do people make things up and state them as fact? It's just silly! "Rodger Higgins February 24, 2014 at 10:37 PM: It can be charged because text messages use the internet and sending nude photo's over the internet is a federal crime."
Marlene February 25, 2014 at 05:03 PM
I'm sorry I don't get it. If you sent a picture of pornography through the internet it is a crime. But if a man sends a picture of his own privates, that is not a crime ?
Bryan Harz February 25, 2014 at 05:29 PM
Call the Wiener Police!!
Margaretq February 25, 2014 at 11:53 PM
Rodger - FYI, text messages do not use the internet. Email does, but text messages via telephones do not.
Robert Dingus-Deville February 26, 2014 at 01:29 AM
If you guys think putting pornography on the Internet is a crime, you obviously haven't spent much time on the Internet.
John Strother February 26, 2014 at 08:49 AM
I had a friend back in the 1970's tattoo his penis as a snake. No woman would go to bed with him, they did not like the idea of that entering them. He later found that gay men enjoyed such thoughts. I wonder what has happened to my dear old friend. He was a real card, a real ladies man before the tattooing.
moose balinski February 26, 2014 at 10:33 AM
@Rodger Higgins wrote: "It can be charged because text messages use the internet and sending nude photo's over the internet is a federal crime." I don't know what planet you are from, but here on planet earth nude photos & videos are sent everyday over the internet totaling in the billions. Not only that, but now the internet has "real time live streaming" of actual live sex shows. Millions of people from all over the world, from age 18 and up to age 90 are broadcasting themselves, via their computer cameras, to a website and ANYONE can watch them perform sexual acts by simply going to the website and sit back to watch every imaginable sexual performance. The people "broadcasting" themselves are in the privacy of their own homes and put on shows for those who desire to watch them. The "viewers" tip the "broadcasters" with cash tokens they purchase at the website ($1.00 each), and in turn the website pays the broadcasters with a debit card (less 10% which the website keeps). The IRS has reported that these performers are making up to $2,000..and more PER DAY !!! THAT'S OVER $14,000 PER WEEK THEY ARE MAKING ...TAX FREE !! The IRS is trying to figure out a way to make these "performers" to pay tax on all of that UNREPORTED INCOME. The problem being that the website company is off shore in a country that has no treaty with the United States to enforce the U.S. tax laws. OVER $14,000 TAX FREE MONEY, EVERY WEEK... UNBELIEVABLE !!!!!!!! Welcome to our brave new world.
Margaretq February 27, 2014 at 07:29 PM
I understand that the internet crosses state lines and is therefore subject to federal jurisdiction as to content. I was just pointing out that text messages, specifically, are carried (most often) by your mobile telephone provider, which is a different entity (legally speaking, though not always physically correct) than your internet provider. You may use the same device (mobile phone), however doing an internet search uses a different function of the phone and carrier than making voice or text calls. Telephone carriers are also subject to federal law for the same reason as internet providers, however phone companies have their own, well-established and legally defined constraints, which are not yet completely adopted (federally) with regard to restricting content sent via the internet.

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