In October of last year, Charles Leo Warren III of Cherokee County, Georgia, decided it would be a good idea to send a digital photo of his tattooed penis to Shari Watson, a married mom of young children.
When Watson saw the pic, she had Warren arrested.
Now he’s in court. But this isn’t a case about sexual harassment, or invasion of privacy or even pornography. This is a case about postal labeling.
And it is also a case about free speech. The Georgia Supreme Court will have to figure out if a 43-year-old law that requires any mailing containing nude images to be clearly labeled as such is, in fact, constitutional.
Warren somehow got Watson’s cell number, then texted her a photo of his genitalia, clearly displaying the tattooed slogan, “STRONG E nuf 4 A MAN BUT Made 4 A WOMAN.”
Warren says that his First Amendment rights were violated when he was charged with "Distribution of Material Depicting Nudity" by sending the texted picture without a warning attached, as required by Georgia law.
The statute bans anyone from sending “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 the following notice: “Notice—The material contained herein depicts nudity or sexual conduct.”
Of course, text messages have no envelope, so such labeling would be impossible. But Warren’s attorneys argue that the entire law is a “content-based regulation of protected speech,” making it unconstitutional under the First Amendment, which guarantees freedom of speech.
Cherokee County District Attorney Cliff Head told the court that the law is not designed to inhibit speech, but to save unwitting recipients the disturbing experience of receiving sexual content without warning.
“You don’t want strangers sending you nudity, sexual conduct,” he said. “You don’t want those pictures sent to you. You don’t want to look at them. The only way you can avoid looking at them if they are sent to you is to have a notice.”
The state also argued that the court needs to take into account the person bringing the case.
“When person coming forward to complain that a Code section enacted in 1970 is unconstitutional is someone who used improper means to discover a wife and mother’s cell phone number so he could send her an image of his tattooed penis, that fact should be given careful consideration as the Court addresses 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 said in its arguments.
“When you have a statute like this, a content-based statute, the statute is on trial, not the defendant,” countered Warren’s lawyer, Donald Roch II.
The court is supposed to have its ruling in four to six months.
SOURCES: Georgia Supreme Court, Athens Banner-Herald, Columbus Ledger-Enquirer