"sexting" to Minors in a Rapidly Evolving Digital Age: Frix v. State Establishes the Applicability of Georgia's Obscenity Statutes to Text Messages - Hayley S. Strong

• Publication year: 2010

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"Sexting" to Minors in a Rapidly Evolving Digital Age: Frix v. State Establishes the Applicability of Georgia's Obscenity Statutes to Text Messages

The capabilities of modern cell phones are advancing at an unprecedented rate, and with these advancements, cell phones now resemble personal computers in numerous ways. Messages, pictures, and videos, which were once transmittable only by computer, can now be sent from one cell phone to another or from a computer to a cell phone and vice versa. While the differences between these two electronic devices may seem increasingly trivial to the average electronics user, these differences are pivotal for the criminal defendant who has used a cell phone to send a sexually explicit text message to a minor. The disparity lies in the scope of Georgia's obscenity statutes and in the extent to which certain statutes have been expanded to apply to cell phones. In Frix v. State,¹ the Georgia Court of Appeals applied three obscenity statutes to text messages sent to a minor from a cell phone.² The appellate court dismissed two of the three obscenity charges against the defendant based on the court's classification of cell phones and cell phone content.³ Thus, Frix laid the foundation for the role cell phones will play in Georgia's obscenity statutes—a role that will likely evolve along with the capabilities of modern cell phones.

I. Factual Background

On March 5, 2005, Joseph Britton Frix (Frix) used his cell phone to send multiple sexually explicit text messages to a fourteen-year-old girl whom he knew was a minor.⁴ The text messages contained descriptions of sexual acts Frix wished to perform on the young girl.⁵ The police were notiied, and during their investigation, Frix confessed to sending the messages.⁶

Frix was charged and indicted by a grand jury for the following criminal offenses: electronically furnishing obscene materials to a minor in violation of section 16-12-100.1 of the Official Code of Georgia Annotated (O.C.G.A.)⁷ (Count 1); distributing harmful materials to a minor in violation of O.C.G.A. Sec. 16-12-103⁸ (Count 2); and engaging in obscene telephone contact with a minor in violation of O.C.G.A. Sec. 16-12-100.3⁹ (Count 3).¹⁰

Following the grand jury proceeding, Frix filed a general demurrer and moved to quash the indictment. In response, the State filed an accusation with Frix's consent, charging Frix with the same offenses but describing the alleged unlawful conduct related to Counts 1 through 3 with greater specificity. When the trial court denied Frix's motion to quash, he applied for and was granted an interlocutory appeal. On appeal, Frix argued that the statutes allegedly violated under Counts 1 through 3 did not prohibit his conduct and, therefore, did not provide fair notice that such conduct was illegal.¹¹ The Georgia Court of Appeals affirmed in part and reversed in part—reversing the trial court's denial of Frix's motion to quash as to Count 1 (electronically furnishing obscene material to a minor) and Count 3 (obscene phone contact with a minor), and affirming the denial of Frix's motion to quash as to Count 2 (distributing harmful material to a minor).¹²

II. Legal Background

A. Electronically Furnishing Obscene Material to Minors (Count 1)

O.C.G.A. Sec. 16-12-100.1¹³ was enacted in 1993,¹⁴ and the original statute has remained in effect without subsequent amendments.¹⁵ The statute criminalizes the act of electronically furnishing obscene materials to minors¹⁶ and defines "[e]lectronically furnishes" as "[making] available by electronic storage device, including floppy disks and other magnetic storage devices, or by CD-ROM; or . . . [making] available by allowing access to information stored in a computer, including making material available by operating a computer bulletin board."¹⁷ Material falling within the scope of the statute includes any sexually explicit "picture, photograph, drawing, or similar visual representation," as well as "[a]ny written or aural matter" describing sexually explicit conduct, when such material "lacks serious literary, artistic, political, or scientific value."¹⁸ Violation of this code section results in "a misdemeanor of a high and aggravated nature,"¹⁹ punishable by a fine of up to $5000 or incarceration up to twelve months, or both.²⁰ Furthermore, the conduct proscribed by this statute is considered a "[d]angerous sexual offense" under O.C.G.A. Sec. 42-1-12(a)(10)(A)(xvi),²¹ and a person convicted of such offense must register as a sexual offender.²² The statute's primary purpose is to penalize individuals who electronically furnish obscene material to minors.²³

This statute originated when Representative Vinson Wall introduced House Bill 138 (HB 138) to the Georgia General Assembly.²⁴ The introduction of HB 138 followed a nationwide sting operation called Operation Longarm, in which three hundred federal, state, and local law enforcement officers raided forty locations seizing "a large amount of data stored on computer equipment which contained child pornography" in the "first ever crackdown on computerized pornography."²⁵ Wall's sponsorship of the bill began after a large computer pornography ring was discovered in the Atlanta metropolitan area. The situation was brought to Wall's attention when he was shown by some constituents how easily pornography could be accessed from a home computer. Further research revealed that this computerized pornography was free to the public and, for the most part, did not verify the age ofthe persons accessing the material. In addition, a distribution network was uncovered that converted pornography into floppy disks and sold them on school campuses.²⁶ HB 138 was introduced to criminalize the selling, loaning, furnishing, or disseminating of harmful sexual material to minors through a computer or computer network.²⁷

When first introduced in the House of Representatives, the bill did not contain the current subsection (a), which deines eight terms used within the statute, including the term electronically furnishes²⁸ However, when presented to the Senate, the Senate Committee on Special Judiciary drafted an alternative version of the bill, which included the eight deinitions to reduce ambiguity and to clarify the scope of the statute. This new version was then passed by both the House and the Senate.²⁹

This statute represents the General Assembly's first attempt to combat the issue of computer pornography.³⁰ Rather than placing sole responsibility on parents to monitor and prevent their children from accessing obscene material, the statute places responsibility on the source of the pornography.³¹ Wall described HB 138 as "an attempt to bring our pornography laws into the modern century."³²

Since the enactment of the statute, convictions have been sustained for conduct involving more than just computer pornography, ostensibly expanding the scope of the statute to include e-mail and text messages.³³ In Ward v. State,³⁴ a man was convicted for electronically furnishing obscene material to a minor in violation of O.C.G.A. Sec. 16-12-100.1 after he sent pornographic material to a fifteen-year-old girl via e-mail.³⁵ In State v. Lee,³⁶ a man was convicted under O.C.G.A. Sec. 16-12100.1 after police found four pornographic photographs on the victim's cell phone that were sent from the defendant's cell phone.³⁷ Although the trial court's decision in Lee was subsequently appealed to the Georgia Court of Appeals, the applicability of O.C.G.A. Sec. 16-12-100.1 was not at issue.³⁸

Prior to the enactment of O.C.G.A. Sec. 16-12-100.1, Florida was the only state that criminalized the selling or loaning of pornography to minors via computer.³⁹ Florida Statutes section 847.0138⁴⁰ prohibits transmitting—defined as sending via "electronic mail"—harmful material to minors by electronic device.⁴¹ Similarly, an Alabama statute prohibits transmitting obscene material to minors via computer, specifically indicating a "computer communication system" as the prohibited means of transmission.⁴² Georgia is the only state to make the distinction between electronic storage device⁴³ and electronic device.⁴⁴ In contrast to the definition of electronic storage device stated above, O.C.G.A. Sec. 1612-100.2⁴⁵ specifically defines electronic device to include cell phones.⁴⁶

B. Unlawful Distribution of Harmful Material to Minors (Count 2)

O.C.G.A. Sec. 16-12-103⁴⁷ was originally enacted in 1983.⁴⁸ This Act made it illegal to sell or loan to a minor for monetary consideration:

(1) Any picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts sexually explicit nudity, sexual conduct, or sadomasochistic abuse and which is harmful to minors; or (2) Any book, pamphlet, magazine, printed matter however reproduced, or sound recording which contains any matter enumerated in paragraph (1) of this subsection, or explicit and detailed verbal descriptions or narrative accounts of sexual excitement, sexual conduct, or sadomasochistic abuse and which, taken as a whole, is harmful to minors.⁴⁹

Enacted under the same Act,⁵⁰ O.C.G.A. Sec. 16-12-105⁵¹ provides that a violation of O.C.G.A. Sec. 16-12-103 is to be treated as a "misdemeanor of a high and aggravated nature,"⁵² punishable by a fine of up to $5000, incarceration up to twelve months, or both.⁵³ It is unclear whether a violation of O.C.G.A. Sec. 16-12-103 requires that the defendant register as a sex offender because, whereas other obscenity statutes are speciically identified, O.C.G.A. Sec. 16-12-103 is not listed under the definition of "dangerous sexual offense" contained in O.C.G.A. Sec. 42-1-12(a)(10)(A).⁵⁴

In February 1984, the General Assembly made a minor amendment to the statute,⁵⁵ and in April 1984, the statute was broadened to apply not only to selling and loaning material to minors, but to any furnishing or disseminating of materials to a...