Georgia ‘Filthy’ Phone Call Statute Declared Invalid

A Georgia statute that criminalized telephone calls that were indecent, lewd, lascivious and filthy as well as obscene has been declared unconstitutional by that state’s supreme court.

In McKenzie v. State, McKenzie was convicted of violating the statute for making a telephone call to a 14-year old girl while he was in prison. McKenzie was 17 at the time. He appealed his conviction based on the unconstitutionality of the statute under the First and Fourteenth Amendments.

The court found that the statute was “content-based regulation” which is generally invalid. The regulation was overbroad and infringed on the right to free speech. The court agreed that First Amendment protection does not extend to obscene speech but noted that “expression which is indecent but not obscene is protected by the First Amendment.” The Georgia statute in question lacked the “precision” to regulate speech since it did not contain language setting out the least restrictive means to further the state’s interest, the court wrote. “Instead of applying only to obscene speech, it applies to speech that is merely indecent. 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 found in its unanimous decision.

McKenzie v. The State, Georgia Supreme Court No. S05A0298 (April 26, 2005).