2020 Georgia Code
Title 16 - Crimes and Offenses
Chapter 12 - Offenses Against Public Health and Morals
Article 3 - Obscenity and Related Offenses
Part 1 - General Provisions
§ 16-12-81. Distribution of Material Depicting Nudity or Sexual Conduct; Penalty

1. A person commits the offense of distributing material depicting nudity or sexual conduct when he sends unsolicited through the mail or otherwise unsolicited causes to be delivered material depicting nudity or sexual conduct to any person or residence or office unless there is imprinted upon the envelope or container of such material in not less than eight-point boldface type the following notice:

   "Notice - The material contained herein depicts nudity or sexual conduct. If the viewing of such material could be offensive to the addressee, this container should not be opened but returned to the sender."

2. As used within this Code section, the term:
   1. "Nudity" means the showing of the human male or female genitals, pubic area, or buttocks with less than a full opaque covering or the depiction of covered male genitals in a discernibly turgid state.
   2. "Sexual conduct" means acts of masturbation, homosexuality, sodomy, sexual intercourse, or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks, or, if the person is female, breast.
3. A person who commits the offense of distributing material depicting nudity or sexual conduct, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than three years or by a fine not to exceed $10,000.00, or both.

(Code 1933, § 26-2102, enacted by Ga. L. 1970, p. 173, § 1.)

- Constitutional guarantee of free speech and press, Ga. Const. 1983, Art. I, Sec. I, Para. V.

- For comment on a nuisance abatement statute applied to authorize prior restraint on exhibition of unnamed films, in the future as violative of the federal Constitution in Universal Amusement Co. v. Vance, 587 F.2d 159 (5th Cir. 1978), probable jurisdiction noted, 442 U.S. 928, 99 S. Ct. 2857, 61 L. Ed. 2d 295 (1979), aff'd, 445 U.S. 308, 100 S. Ct. 1156, 63 L. Ed. 2d 413 (1980), see 13 Ga. L. Rev. 1076 (1979).

JUDICIAL DECISIONS

Act alleged not prohibited.

- Trial court erred in denying defendant's general demurrer, because the act alleged in the indictment, the sending of a nude image of defendant's genitals from his cell phone to the victim's cell phone, was not prohibited by O.C.G.A. § 16-12-81, which was limited to tangible material that had a tangible envelope or container. Warren v. State, 294 Ga. 589, 755 S.E.2d 171 (2014).

Cited in Fishman v. State, 229 Ga. 133, 189 S.E.2d 429 (1972).

RESEARCH REFERENCES

Am. Jur. 2d.

- 50 Am. Jur. 2d, Lewdness, Indecency and Obscenity, §§ 11 et seq., 16 et seq.

- Exclusion from evidence of parts of a publication, or mail matter, other than those charged to be obscene, or oral testimony relating to purpose or effect of publication as a whole, 69 A.L.R. 644.

What amounts to an obscene play or book within prohibition statute, 81 A.L.R. 801.

Constitutional guaranties of freedom of speech and of the press as applied to statutes and ordinances providing for licensing or otherwise regulating distribution of printed matter or solicitation of subscriptions therefor, 127 A.L.R. 962.

Modern concept of obscenity, 5 A.L.R.3d 1158.

Constitutionality of state statutes banning distribution of sexual devices, 94 A.L.R.5th 497.