After the trial court denied demurrers challenging the constitutionality of the statute appellant Anthony McKenzie was alleged to have violated, appellant stipulated to the evidence and was convicted in a bench trial of twice violating OCGA § 46-5-21a1 as a result of two phone calls he made in June/July 2003. Each of the counts of the accusation on which McKenzie was tried alleged he “did make a phone call . . . with conversations containing obscene, lewd, lascivious, filthy, and indecent comments, requests, suggestions and/or proposals. . . .” OCGA § 46-5-21a1 makes such conduct a misdemeanor. Before this Court, appellant repeats his assertion that OCGA § 46-5-21a1 impermissibly infringes upon the right to free speech protected by the First Amendment to the United States Constitution. We agree the statute is an overbroad infringement on the right to free speech; accordingly, we reverse the judgment of conviction.1 Freedom of speech is one of the fundamental personal rights and liberties protected from governmental intrusion by the First and Fourteenth Amendments to the U.S. Constitution Cunningham v. State , 260 Ga. 827 400 SE2d 916 1991 and the Bill of Rights contained in Georgia’s Constitution. 1983 Ga. Const., Art. I, Sec. I, Par. V. While speech enjoys constitutional protection, it is not fully removed from government regulation. A “content-neutral” statute or ordinance, i.e., one that is ” ‘justified without reference to the content of the regulated speech,’ cit. . . . may limit speech if the law: 1 furthers an important governmental interest; 2 is unrelated to the suppression of speech; and 3 its incidental restriction of speech is no greater than essential to further the important governmental interest. Cits.” Chambers v. Peach County , 266 Ga. 318 1 467 SE2d 519 1996. There also can be governmental regulation of speech based on content: a “ content-based” regulation of speech, i.e., one in which “the government interest is related to the content of the expression,” City of Erie v. Pap’s A.M. , 529 U.S. 277, 289 120 SC 1382, 146 LE2d 265 2000; I.D.K. v. Ferdinand , 277 Ga. 548 1 592 SE2d 673 2004, is constitutionally acceptable “to promote a compelling interest if the government chooses the least restrictive means to further the articulated interest.” Sable Communications v. FCC , 492 U.S. 115, 126 109 SC 2829, 106 LE2d 93 1989.2 OCGA § 46-5-21a1 imposes a ban on indecent, lewd, lascivious, and filthy,3 as well as obscene, telephonic communication made by private individuals or commercial entities regardless of the speaker’s intent. Compare OCGA § 46-5-21a 2-4, which make certain conduct illegal when done with a specified intent. As demonstrated by the case at bar, the statute subjects the speaker to criminal prosecution and punishment for such speech, making “a careful examination” of the statute “critical.” Cunningham v. State , supra, 260 Ga. at 831. Inasmuch as the protection of the First Amendment does not extend to obscene speech Sable Communications v. FCC supra, 492 U.S. at 124, there is no constitutional barrier to a statutory ban on using the telephone to make an obscene communication. Id. However, ” ‘expression which is indecent but not obscene is protected by the First Amendment.’ Cits. ‘Where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression.’ Cit.” Reno v. ACLU , 521 U.S. 844, 874-75 117 SC 2329, 138 LE2d 874 1997. Accordingly, we must examine whether the statutory restraint on protected speech imposed by § 46-5-21a1 meets constitutional standards.
OCGA § 46-5-21a1 is a “content-based” regulation of speech since a telephone user is subject to prosecution if the content of the user’s expression is found to be “obscene, lewd, lascivious, filthy, or indecent. . . .” See also Sable Communications v. FCC , supra, 492 U.S. at 126 measuring similar federal statute against “content-based” standard, and Reno v. ACLU , supra, 521 U.S. at 871 federal statute prohibiting the initiation of transmission via a telecommunications device of an obscene or indecent message to a recipient under 18 years of age is a “content-based” regulation. ” ‘Content-based regulations are presumptively invalid,’ Cit., and the Government bears the burden to rebut that presumption.” U.S. v. Playboy Entertainment Group , 529 U.S. 803, 817 120 SC 1878, 146 LE2d 865 2000. In order for a content-based regulation to withstand First Amendment scrutiny, it must promote a compelling state interest and must be the least restrictive means to further the articulated interest. Cunningham v. State , supra, 260 Ga. at 831.
