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(Code 1981, §§16-12-103,16-12-104, enacted by Ga. L. 1983, p. 1437, § 2; Ga. L. 1984, p. 22, § 16; Ga. L. 1984, p. 1495, § 3; Ga. L. 1996, p. 273, § 2; Ga. L. 2005, p. 1261, § 1/SB 106.)
- The provisions of the subsection (b) added by the second 1984 amendment were derived in great part from the provisions of former Code Section 16-12-104. See Editor's notes to that Code section.
Ga. L. 1996, p. 273, § 3, not codified by the General Assembly, provides for severability.
- For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 57 (2005). For article, "'Sexting' to Minors in a Rapidly Evolving Digital Age: Frix v. State Establishes the Applicability of Georgia's Obscenity Statutes to Text Messages," see 61 Mercer L. Rev. 1283 (2010). For review of 1996 offenses against public health and morals legislation, see 13 Ga. St. U.L. Rev. 116 (1996). For note, "Balancing the First Amendment and Child Protection Goals in Legal Approaches to Restricting Children's Access to Violent Video Games: A Comparison of Germany and the United States," see 34 Ga. J. Int'l & Comp. L. 743 (2006).
- O.C.G.A. § 16-12-103 produces only a slight burden on adults' access to protected material and fully comports with the First Amendment. American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990), cert. denied, 500 U.S. 941, 111 S. Ct. 2237, 114 L. Ed. 2d 479 (1991).
O.C.G.A. § 16-12-103(b)(2) is unconstitutional as an infringement on free speech rights without proof of a compelling state interest justifying such restriction applying to persons between 18 and 21 years of age. State v. Cafe Erotica, Inc., 269 Ga. 486, 500 S.E.2d 574 (1998).
- State is not prohibited from prosecuting a defendant for violating the exhibition and definition components of O.C.G.A. § 16-12-103, even though the display provision (subsection (e) ) has been declared unconstitutional. Windom v. State, 187 Ga. App. 18, 369 S.E.2d 311 (1988).
- When the O.C.G.A. § 16-12-103(a)(1) charge against the defendant was based on defendant's exhibiting to a minor an allegedly pornographic motion picture, and the jury was allowed to view a videotape of this motion picture, which was found during a search of defendant's home, but at some point during the showing of this film, defense counsel stipulated that the film was sexually explicit, and the remainder of the film was not shown to the jury, as a result of this truncation of the jury's view of the film, there was insufficient evidence under which the jury could have found defendant guilty of this charge since, in order to be adjudged obscene under O.C.G.A. § 16-12-103(a)(1), the work must depict sexually explicit nudity and be harmful to minors; in order to be adjudged harmful to minors, the work must meet the three-part test set out in O.C.G.A. § 16-12-102(1)(A), (B), and (C), and in order to determine whether the work meets the tests set out in subparagraphs (A) and (C) the work must be viewed "as a whole." Hunter v. State, 257 Ga. 571, 361 S.E.2d 787 (1987).
- Charging a defendant with showing an obscene film to a minor does not constitute an unconstitutional intrusion into defendant's right of personal privacy within the private and noncommercial boundaries of defendant's home. Hunter v. State, 257 Ga. 571, 361 S.E.2d 787 (1987).
- Sexually explicit text message sent to a minor via a cellular phone constitutes "printed matter however reproduced" under O.C.G.A. § 16-12-103(a)(2). Frix v. State, 298 Ga. App. 538, 680 S.E.2d 582 (2009).
As a person of ordinary intelligence would have fair notice that sending a sexually explicit text message to a minor via a cellular phone was unlawful under O.C.G.A. § 16-12-103, prosecuting the defendant for distribution of harmful materials to a minor based on such conduct did not violate due process. Frix v. State, 298 Ga. App. 538, 680 S.E.2d 582 (2009).
Placing material "harmful to minors" behind "blinder racks" or shelves which cover at least the lower two-thirds of material that would otherwise be exposed to view does not impose a "substantially overbroad" regulation on "conduct plus speech," where adults may peruse and purchase the material without restriction. American Booksellers v. Webb, 919 F.2d 1493 (11th Cir. 1990).
- In a prosecution against the defendant for child molestation, enticing a child for indecent purposes, and exhibiting pornography to a minor, even if the appeals court assumed that the word "catheter" should have been redacted from what the defendant apparently conceded was an otherwise relevant list of items found in a search, the trial court's failure to do so was harmless error because it was highly improbable that such failure contributed to the verdict given the overwhelming evidence of the defendant's guilt. Goldey v. State, 289 Ga. App. 198, 656 S.E.2d 549 (2008).
- There was no merit to a defendant's contention that the defendant's conviction and felony sentence for child molestation were improper because the alleged conduct also violated O.C.G.A. § 16-12-103(a)(1), which makes it a misdemeanor of a high and aggravated nature to furnish or disseminate harmful material to a minor and, therefore, the defendant could only be prosecuted for the misdemeanor offense as the rule of lenity did not apply because the two offenses at issue required different conduct. Namely, the crime of child molestation required, among other things, proof of the intent to arouse or satisfy the sexual desires of either the child or the perpetrator, which was not a required element of the crime of furnishing or disseminating harmful material to a minor. Metts v. State, 297 Ga. App. 330, 677 S.E.2d 377 (2009).
Cited in American Booksellers Ass'n v. Webb, 590 F. Supp. 677 (N.D. Ga. 1984); American Booksellers Ass'n. v. Webb, 254 Ga. 399, 329 S.E.2d 495 (1985); Hollis v. State, 215 Ga. App. 35, 450 S.E.2d 247 (1994).
- Obscenity prosecution: statutory exemption based on dissemination to persons or entities having scientific, educational, or similar justification for possession of such materials, 13 A.L.R.5th 567.
Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.
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