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The Georgia Supreme Court has struck down a state law that criminalized “obscene, lewd, lascivious, filthy, or indecent” suggestions made by telephone. Writing for a unanimous court, Justice Robert Benham dispatched the law, O.C.G.A. �46-5-21 (a)(1), as “an overbroad infringement on the right to free speech.” The decision does not appear to hamper the government’s ability to prosecute people who make harassing telephone calls. O.C.G.A. �16-11-39.1 covers situations in which someone makes calls repeatedly “for the purpose of annoying, harassing, or molesting another person.” The law struck down by the high court appears to have been little used since its adoption by the General Assembly in 1968. A search of Georgia appellate decisions on the Lexis-Nexis database reveals only five cases in which the law is mentioned. The high court’s four-page decision reversed the misdemeanor conviction Anthony McKenzie received after making collect telephone calls to a 14-year-old girl while he was an inmate at the Forsyth County Detention Center. Then 17, McKenzie was serving time for violating probation for a statutory rape conviction, said his lawyer, R. Parker McFarland Jr. of Cummings McFarland & McFarland. The girl’s mother objected to the calls, during which McKenzie and the girl engaged in sexual banter, according to court briefs. The calls were recorded by the jail, and McKenzie was prosecuted by Forsyth County Solicitor Leslie C. Abernathy, convicted in a bench trial and sentenced to two years of probation. McKenzie appealed to the Georgia high court, arguing that the law violated the First Amendment. The court heard oral arguments on Valentine’s Day, leading to a playful but revealing exchange between Benham and Inez Grant, a Forsyth County assistant solicitor. Benham wondered about the fate of millions of Georgians who might use the telephone that day to call their spouses and make lascivious suggestions. Grant told Benham that the phone is off limits for such X-rated talk, even to one’s spouse, because “the state can regulate its public utilities,” including telephone lines. “You need to know,” Grant told Benham later, that a lascivious phone call to your wife could bring prosecution. Benham thought a moment and deadpanned, “I’ll pick her up and talk to her in person,” prompting the other justices, the lawyers and the courtroom audience of about 20 to erupt in laughter. McFarland pointed out that the 1968 law at issue was based on a similar federal law that has been amended nine times. The federal law now restricts only child pornography or obscene communications transmitted with the intent to harass or with knowledge that the recipient is a minor, according to an amicus brief submitted by the American Civil Liberties Union. The Georgia law remained much broader and, as a result, was doomed, according to the court’s decision. “Instead of applying only to obscene speech,” Benham wrote, “it applies to speech that is merely indecent.” He added: “Instead of making illegal such speech only when directed at minors, it makes such speech illegal when heard by adults. Instead of applying only to speech not welcomed by the listener and spoken with intent to harass, it applies to speech welcomed by the listener and spoken with intent to please or amuse.” As a result, Benham concluded, the law violated the First Amendment. McKenzie v. State, No. S05A0298 (Sup. Ct. Ga. April 26, 2005). “We’re very happy with it,” McFarland said of the decision. In a statement issued Tuesday afternoon, Abernathy, the Forsyth solicitor, said the First Amendment “was not … created to protect a convicted statutory rapist from using a government-owned telephone to call 14-year-old victims to solicit and entice them to commit obscene sexual acts on the victim’s parents’ bed.”

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