Sexting strangers? Attach the warning label

November 2, 2013 

Parental discretion advised, or as they say on TV news: "Some viewers may find these images disturbing."

Here's a case the Georgia Supreme Court's to hear Monday:

"A man who texted an unsolicited picture of his penis to a woman is appealing a Cherokee County court's refusal to throw out the criminal charge against him. He argues that the Georgia statute outlawing the distribution of nude photos does not apply to electronic images on a cell phone."

The accused is Charles Leo Warren III, who reportedly has this tattoo on that body part: "STRONG E nuf 4 A MAN BUT Made 4 A WOMAN."

Not everyone has space to spell out all the words.

Warren is charged with unlawful "Distribution of Material Depicting Nudity or Sexual Conduct" for transmitting a "digital image of said accused's genitals, without the notice of contents as required by Official Code ... 16-12-8."

The law requires this notice in at least "eight-point boldface type": "Notice -- 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."

Fit that on your package.

So, the problem's not that Warren sent someone's wife a photo of his tattooed penis; it's that he didn't put a warning label on it. Or not the one required by law, at least. Or he paraphrased it poorly, his attorney might argue. ("He did his best with the space he had, OK?")

In their briefs, Warren's attorneys push this point: The law is "content-based," so the state must prove a compelling interest in restricting free speech.

"The only apparent interest the state has in regulating the speech here is to protect the sensibilities of certain recipients. To protect those sensibilities, the state has chosen to regulate a breathtaking range of speech … in expansive terms that include not only genitalia but partially covered buttocks as well."

Good luck covering your butt when whomever you're texting a photo of it has to see the state-mandated warning label.

Attorneys for the state note Warren "used improper means to discover a wife and mother's cell phone number so he could send her an image of his tattooed penis," and the two had no relationship.

Because texting is "ordinarily restricted to persons with whom the cell phone account holder has a pre-existing … relationship," the state wrote, "Warren had no business sending any unsolicited electronic message whatsoever to the victim's cell phone, much less an image of his penis."

The law passed in 1970, so the court should weigh "whether a statute originally enacted during President Nixon's first term in office has been meaningfully infringing on Georgians' First Amendment rights for all these years," the state argued.

At least Richard Nixon knew some things need to be covered up.

Tim Chitwood, tchitwood@ledger-enquirer.com, 706-571-8508.

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