You Should Probably Sit Down Now

Wednesday, April 27, 2005

You Should Probably Sit Down Now

When you're arguing a case to a judge, there sometimes comes a terrible moment when the judge says something that means: "You're going to lose. You may as well save your breath." (When you're inexperienced, the worst thing you can do is when the judge says, in effect, "You're going to win, so sit down before you screw it up," and you don't get the signal).

The Georgia Supreme Court just struck down, on First Amendment grounds, a state law that criminalized "obscene, lewd, lascivious, filthy, or indecent" suggestions made by telephone. For experienced court-watchers, and even for the not so experienced, there was definitely one of those "you're going to lose" moments at the oral argument.

Georgia has another law that forbids telephonic harassment directed at an unwilling listener. So the issue in the current case was whether the state could also make consensual sexually explicit phone calls illegal.

Fate, or a creative court clerk, played a hand in scheduling the oral argument.

The court heard oral arguments on Valentine's Day, leading to a playful but revealing exchange between [Justice Robert] Benham and Inez Grant, a Forsyth County assistant solicitor. Benham wondered about the fate of millions of Georgians who might use the telephone that day to call their spouses and make lascivious suggestions.

Grant told Benham that the phone is off limits for such X-rated talk, even to one's spouse, because "the state can regulate its public utilities," including telephone lines. "You need to know," Grant told Benham later, that a lascivious phone call to your wife could bring prosecution.

Benham thought a moment and deadpanned, "I'll pick her up and talk to her in person," prompting the other justices, the lawyers and the courtroom audience of about 20 to erupt in laughter.

In other words: sit down; you've lost.

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