Georgia Report - News Detail Page > Court overturns ‘obscene’ phone call law

Georgia Report - News Detail Page: "Court overturns ‘obscene’ phone call law
by Tom Crawford on 4/26/2005

The Georgia Supreme Court unanimously struck down Tuesday a state law that had prohibited the making of lewd or obscene telephone calls, ruling that the statute violated the constitutional right to free speech.

“Freedom of speech is one of the fundamental personal rights and liberties protected from government intrusion by the First and Fourteenth Amendments to the U.S. Constitution,” the court stated in an opinion written by Justice Robert Benham.

The court ruled that Georgia code section 46-5-21 “is an overbroad infringement on the right to free speech . . . it is clear the statute ‘lacks the precision that the First Amendment requires when a statute regulates the content of speech.’”

The state law thrown out by the court made it a misdemeanor offense for a person “by means of telephone communication in this state to make any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy or indecent.”

“Instead of applying only to obscene speech, it applies to speech that is merely indecent,” the court ruled. “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.”

The court ruled in a case involving Anthony McKenzie, an 18-year-old who made five telephone calls to his 14-year-old girlfriend in 2003 while he was being held in the Forsyth County Detention Center. The calls were routinely tape-recorded at the jail and McKenzie was charged with five counts of making “harassing and obscene telephone calls” after his girlfriend’s mother complained to law enforcement authorities.

McKenzie was found guilty on two of the five counts in 2004 after a bench trial before Forsyth State Court Judge Philip C. Smith, who sentenced McKenzie to two years probation.

McKenzie’s attorney, R. Parker McFarland of Cumming, contended that the obscene phone call statute was unconstitutional in his appeal of McKenzie’s convictions. The American Civil Liberties Union filed a “friend of the court” brief that also alleged the law infringed upon free speech rights.

McFarland argued in his court filings that the Georgia law “permits the unbridled discretion of law enforcement officers to decide which conversation falls into this category.” He noted that the 14-year-old girlfriend accepted each of the five collect calls from McKenzie.

While acknowledging that some of the speech was “sexually explicit,” McFarland added, “when you consider it is being returned by the victim, I don’t know that it rises to the level of being obscene.”

Forsyth Solicitor General Leslie C. Abernathy, the State Court’s chief prosecutor, quoted several of the sexually explicit terms used in McKenzie’s phone conversations and said they were lewd, filthy and indecent “by any reasonable standard.”

McKenzie “is not prohibited from having what he describes as conversation between a boyfriend and his girlfriend; he just cannot have that conversation by telephone,” Abernathy said.