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Court Finds Computer Pornography Statute Constitutional


July 20, 2016

In Scott v State, the Georgia Supreme Court upheld the constitutionality of the Computer or Electronic Pornography and Child Exploitation Prevention Act, holding that the statute’s offense of obscene Internet contact with a child was not unconstitutionally overbroad and did not violate the right to free speech under the First Amendment.

The statute provides that a person “commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows [or believes] to be a child…via a computer wireless service or Internet 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…” O.C.G.A. § 16-12-100.2(e)(1).

Generally, laws that prohibit or regulate free speech are subject to “exacting scrutiny.” In order to survive such scrutiny, such laws “must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society.”

The Court noted that the title of this statute “makes clear that its purpose is preventing the exploitation of children via electronic means.” Our courts have consistently recognized that the legislature has a compelling interest in protecting the well-being of children.

The Court found that the text of the statute in question was clear that contact must be made with a person known or believed to be a child under the age of 16 years. It emphasized that the statute also requires that the contact be “intended to arouse or satisfy the sexual desire of either the child or the person.”

The Court held that the statute had a narrow enough scope to avoid constitutional infirmity. It found that the statute placed crucial emphasis on the intent of the accused, requiring an intent to have contact with a child younger than 16, and that the contact be made with the specific intent to arouse or satisfy the accused’s or the child’s sexual desire. It concluded that “this specific intent requirement dramatically reduces the range of expression that is subject to the statutory prohibition” and eliminates the possibility that innocent communications of a sexual nature would somehow fall within the breadth of the statute.

As a result, the Court affirmed the denial of the defendant’s demurrer and remanded the case back to the Superior Court for trial.

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