The Bible and Other Obscenities
Oct. 23, 2015 (Mimesis Law) — One of the most frustrating parts of being an appellate attorney in Georgia is that you can’t challenge the constitutionality of a law for the first time on appeal. Basically, if trial counsel doesn’t catch it within ten days of arraignment, everyone is going to assume that the law is fine.
That’s particularly frustrating when you see a law like this one, which makes it illegal to discuss everything from sex education to art history with a child:
(e) (1) A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.
So let’s summarize. If you think someone is a child, and you send them a “narrative account” of sexually explicit nudity or sadomasochistic abuse with the intent to titillate, you’ve violated the statute and you’re probably going to end up a sex offender.
But “sexually explicit nudity,” that’s gotta be pretty bad, right?
“Sexually explicit nudity” means a state of undress so as to expose the human male or female genitals, pubic area, or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.”
So wait, if someone describes uncovered buttocks to a child with intent to arouse, they’re a sex offender?
So shall the king of Assyria lead away the Egyptians prisoners, and the Ethiopians captives, young and old, naked and barefoot, even with their buttocks uncovered, to the shame of Egypt. – Bible : Isaiah (20) : 4.
I hope no children were reading this, I know that was graphic. Woe unto anyone who just really, really likes the Bible, because it’s full of this criminal filth. Think of all the sadomasochistic content!
“Sadomasochistic abuse” means flagellation or torture by or upon a person who is nude or clad in undergarments or in revealing or bizarre costume or the condition of being fettered, bound, or otherwise physically restrained on the part of one so clothed.
Well, at least that’s a tough standard. I mean, you’d have to tell the child about someone being dressed up in a bizarre costume and then flagellated.
They stripped him and put a scarlet robe on him, and then twisted together a crown of thorns and set it on his head. They put a staff in his right hand. Then they knelt in front of him and mocked him. “Hail, king of the Jews!” they said. They spit on him, and took the staff and struck him on the head again and again. After they had mocked him, they took off the robe and put his own clothes on him. Then they led him away to crucify him.”
Okay, so in short, there are a ton of Bible verses that fall afoul of the statute. Now, if you’re a hypothetical prosecutor reading this, you might say to yourself: “My office would never prosecute someone for sending Bible verses to a child, we’ve just got too much gosh-darned discretion.”
That’s a common argument, but not a successful one.
[T]he First Amendment protects against the Government; it does not leave us at the mercy of noblesse oblige. We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.
Also, just because the State is using the law responsibly doesn’t mean that a challenge can’t be raised. Even a scoundrel can claim First Amendment protection so long as he can show the law burdens a substantial amount of protected speech (in this case, big chunks of the Bible and any decent sex education book).
And we know that this law burdens a lot of protected speech because it doesn’t limit itself to banning “obscene” speech or even speech that is “harmful to minors,” but instead covers a ton of content that many parents would be thrilled to see their kids reading.
The final argument a hypothetical prosecutor might raise is that the intent requirement saves the statute. After all, you’d have to be a filthy cretin to send this stuff with the intent to arouse yourself or the child. But there are two problems with this argument.
First, intent is ambiguous enough that a speaker may not speak up for fear of what people might think he’s intending. For instance, there’s an obvious constitutional problem with a law that says: “[n]o citizen may criticize the government with the intent to overthrow the government.” We can tell people what we mean when we say things, but we can’t always convince them of it.
Second, a reasonable person could read the statute to mean that it’s the verbal descriptions or narrative accounts that must be created with the intent to arouse. So now you have to travel 1900 years into the past to see if Matthew was only dabbling in Gospel-writing between erotic vampire novels? And of course, if that’s the rule, there’s plenty of great literature that high schools are illegally distributing to minors.
In short, this is a bad law awaiting a good challenge. Yet month after month, people are convicted because many lawyers don’t have the time or the resources to look into the constitutionality of the law before telling their clients they’d better plead or risk a heavy trial tax. And that is more obscene than any dirty picture.