Wednesday, February 16, 2005

Are you a Valentine day criminal?

Did you call your wife/husband and go into detail about what you plan to do to their body when you got home? Did you call and go into detail how you look in the new sexy outfit you got and how he may just rip it off with his teeth in an fit of passion?

Well if you are a proud resident of Georgia you may have just broke a law controlling "obscene, lewd, lascivious, filthy, or indecent" suggestions made by telephone. It does not matter if you are married or not. This very bad law could still get you if the local prosecutor decides your a bad person.
Justice Robert Benham of the Georgia Supreme Court received Valentine's Day legal advice from a county prosecutor who was defending a state law that criminalizes "obscene, lewd, lascivious, filthy, or indecent" suggestions made by telephone.

Hearing arguments over whether the law violates free speech rights, Benham had wondered aloud about the fate of millions of Georgians who might use the telephone on Monday to call their spouses and make lascivious suggestions.

The phone is off limits for such X-rated talk, even to one's spouse, said Inez Grant, Forsyth County assistant solicitor, because "the state can regulate its public utilities," including telephone lines.
Now the case involves a 19 year old prisoner whose telephone calls between him and his 13 year old girlfriend were recorded. Now that automatically could turn some people against the case. But realize that even the lowest scum has the same rights as you and I. Free speech is one of them.

The ACLU has filed an Amicus brief(PDF) in the case, and while it is long, it does go into detail about all the many, and there are a lot, of errors with this law. There was a federal law like this, surprised? That law, 47 U.S.C. 223, has been amended 9 times since its adoption in 1968 because it was so badly written and anti-constitutional. I use anti-constitutional instead of unconstitutional because some laws seem to not just break, but work against the constitution. That same year the Georgia assembly adopted one with almost the same language. But since it has not been used as much there has been less chance to tear it apart.

Here is a copy of the law.
46-5-21.
(a) It shall be a misdemeanor for any person, by means of telephone communication in this state, to:
(1) Make any comment, request, suggestion, or proposal which is obscene, lewd, lascivious, filthy, or indecent;
(2) Make a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten, or harass any person at the called number;
(3) Make or cause the telephone of another repeatedly or continuously to ring, with intent to harass any person at the called number; or
(4) Make repeated telephone calls, during which conversation ensues, solely to harass any person at the called number.
(b) Any person who knowingly permits any telephone under his control to be used for any purpose prohibited by this Code section shall be guilty of a misdemeanor.
Section (a)(1) is what he is being charged under. The problem is that some, hell a lot of talk between people when in an amorous mood would be lascivious.

So for once the ACLU is on the right side of a fight. While this guy might be scum, he is scum that has the right of free speech. No matter how much our government does not like it.

From the article one part gives me hope that it has a snowballs chance in hell of winning.
Most of the court members appeared highly skeptical of the law's constitutionality. When Grant first brought up her argument that the state could regulate telephone speech because it regulates telephones, Justice Carol W. Hunstein exclaimed, "What?"
My final thought on the subject is this. They feel they have the right to control speech on the phone for this reason.
the state could regulate telephone speech because it regulates telephones
The standard governmental thought pattern. "What we regulate we control totally". They need to be taught otherwise real darn fast before our rights are regulated out of existence.

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