CopyCited 63 times | Published | Supreme Court of Georgia | May 18, 1998 | 269 Ga. 438
...127, 130(1),
36 S.E.2d 92 (1945). There are at least two statutory provisions which define as criminal the specific act attributed to Vines. Under OCGA §
16-11-39(a)(4), Vines' alleged act constitutes the misdemeanor of "disorderly conduct" and, under OCGA §
46-5-21(a), he could be found guilty of the misdemeanor of using the telephone to make a "comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent...." The State urges that the existence of these specific c...
...
16-6-4's coverage. The plain language of OCGA §
16-6-4, and its clear purpose, demonstrate that Vines' alleged act may be prosecuted under the statute. The majority also relies on the existence of two other Code sections, OCGA §
16-11-39(a)(4) and §
46-5-21(a), to conclude that Vines' alleged act can not constitute child molestation....
...The two crimes are distinct and each focuses on preventing different conduct; OCGA §
16-6-4(a) on preventing the use of children for sexual gratification, and OCGA §
16-11-39(a)(4) on preventing speech that endangers the peace. Similarly, the existence of OCGA §
46-5-21(a)(1) neither shows a legislative intent that acts such as are at issue should fall outside the ambit of OCGA §
16-6-4, nor *634 bars Vines' prosecution under the indictment. OCGA §
46-5-21(a)(1) provides: "[i]t shall be a misdemeanor for any person, by means of telephone communication in this state, to......
...indecent." This Code section applies to any telephone speech that could be so described, regardless of the age of the recipient. It also applies regardless of whether the call was made for purposes of arousing or satisfying sexual desire. Thus, OCGA §
46-5-21(a)(1) does not focus on the evil that OCGA §
16-6-4 is intended to guard against....
...The calls alleged in the indictment were more than simply "obscene, lewd, lascivious, filthy, or indecent;" they were made to arouse and satisfy sexual desires, using the child to that end. Only OCGA §
16-6-4 specifically targets such behavior. Neither OCGA §
16-11-39(a)(4) nor OCGA §
46-5-21(a)(1) bars the prosecution here, and neither demonstrates a legislative intent that acts of molestation committed over the telephone should not be prosecuted as a felony under OCGA §
16-6-4....
CopyCited 9 times | Published | Supreme Court of Georgia | Apr 26, 2005 | 279 Ga. 265
...BENHAM, Justice. After the trial court denied demurrers challenging the constitutionality of the statute appellant Anthony McKenzie was alleged to have violated, appellant stipulated to the evidence and was convicted in a bench trial of twice violating OCGA §
46-5-21(a)(1) as a result of two phone calls he made in June/July 2003. Each of the counts of the accusation on which McKenzie was tried alleged he "did make a phone call ... with conversations containing obscene, lewd, lascivious, filth[y], and indecent comments, requests, suggestions and/or proposals...." OCGA §
46-5-21(a)(1) makes such conduct a misdemeanor. Before this Court, appellant repeats his assertion that OCGA §
46-5-21(a)(1) impermissibly infringes upon the right to free speech protected by the First Amendment to the United States Constitution....
...548(1),
592 S.E.2d 673 (2004)), is constitutionally acceptable "to promote a compelling interest if [the government] chooses the least restrictive means to further the articulated interest." Sable Communications &c. v. FCC,
492 U.S. 115, 126,
109 S.Ct. 2829,
106 L.Ed.2d 93 (1989). [2] OCGA §
46-5-21(a)(1) imposes a ban on indecent, lewd, lascivious, and filthy, [3] as well as obscene, telephonic communication made by private individuals or commercial entities regardless of the speaker's intent. Compare OCGA §
46-5-21(a)(2)-(4), which *79 make certain conduct illegal when done with a specified intent....
...speech may be offensive to some does not justify its suppression.)' [Cit.]" Reno v. ACLU,
521 U.S. 844, 874-85,
117 S.Ct. 2329,
138 L.Ed.2d 874 (1997). Accordingly, we must examine whether the statutory restraint on protected speech imposed by OCGA §
46-5-21(a)(1) meets constitutional standards. OCGA §
46-5-21(a)(1) is a "content-based" regulation of speech since a telephone user is subject to prosecution if the content of the user's expression is found to be "obscene, lewd, lascivious, filthy, or indecent...." See also Sable Communications v....
...must be reversed. Judgment reversed. All the Justices concur. NOTES [1] The trial court denied appellant's demurrer based on this Court's decision in Constantino v. State,
243 Ga. 595,
255 S.E.2d 710 (1979), where this Court upheld what is now OCGA §
46-5-21(a)(2) against the contention that it violated the Fourteenth Amendment's guarantee of due process because it was unconstitutionally vague and overbroad. That decision is not controlling in this First Amendment challenge to subsection (a)(1) of OCGA §
46-5-21....
CopyCited 1 times | Published | Supreme Court of Georgia | Oct 31, 2024
... the
Eleventh Circuit Court of Appeals noted that Georgia has “tailored its
disorderly conduct statute[, OCGA §
16-11-39 (a),] to punish only unprotected
fighting words.” Merenda, 506 Fed. Appx. at 865.
12 In McKenzie, we held that OCGA §
46-5-21 (a) (1), which prohibits
“obscene, lewd, lascivious, filthy, or indecent” telephone calls, is an overbroad
infringement on the First Amendment’s guarantee of freedom of speech,
because the Code section does not employ the least rest...
