Tennessee Makes Posting Images A Crime If They Are Viewed As Distressful To Third Parties

Tennessee legislators have passed an extraordinary law that makes it a crime to “transmit or display an image” online that is likely to “frighten, intimidate or cause emotional distress” to someone who sees it. Violations can get you almost a year in jail time or up to $2500 in fines. The law, in my view, is unconstitutional and a direct threat to free speech.

Here is the language of the new law:

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

Gov. Bill Haslam signed the bill into law despite its sweeping, vague assault on free speech.

The standard of what a sender or poster should “reasonably . . . know” would “cause emotional distress” is a standard without content. It would allow prosecutors to pick and choose which posters or senders they want to prosecute for images. The claim of a “legitimate purpose” does little to improve the legal situation. All posters have the purpose of sharing an image, what constitutes a “legitimate purpose” if the prosecutors view the image as disturbing?

Notably, the person bringing the charge need not be the intended recipient. What if the image is disturbing as insulting to religious values or contains elements that are viewed as sexist or racist or otherwise hateful. We have seen a growing assault on free speech in the West in countries like England over such prosecutions.

Magnifying the free speech concerns is another provision giving law enforcement access to the contents of communications on social networking sites. The combination creates a chilling effect on free speech that is positively glacial.

The law runs afoul of a host of prior cases and more importantly constitutional values and history. In Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), The Court struck down two provisions of the Child Pornography Prevention Act of 1996 as overbroad. The Court held that “[a]s a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear.” Even when combatting child pornography, the Court held that (absent use of children in sexual acts), Congress could not impose an overboard criminal provision. The Court further noted:

Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actor’s unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well beyond that interest by restricting the speech available to law-abiding adults.

The Tennessee law is truly breathtaking in its unconstitutional sweep. It actually makes the Child Pornography Prevention Act of 1996 look narrowly tailored. Not only have the Tennessee legislators and Governor failed to protect the free speech rights of their constituents but they will now trigger a costly challenge where those same citizens will pay for the defense of this ill-conceived and ill-advised law.

Source: Gizmodo

52 thoughts on “Tennessee Makes Posting Images A Crime If They Are Viewed As Distressful To Third Parties

  1. Were I a resident of the great State of Tennessee, I would argue that the very posting of this story is a prosecutable offense under the new statute. Consider the following:

    1. The story appeared as an image on my computer monitor.

    2. It was intentionally transmitted by Prof. Turley.

    3. It was transmitted to a class of persons many of whom Prof. Turley knows, or reasonably should know, are likely to become emotionally distressed over assaults on the First Amendment.

    4. Having examined the complete image, I, a person of reasonable sensibilities, am feeling outraged and distraught.

    There are the elements. Can you say “probable cause”?

  2. I live in Tennessee. In November 2010, we elected a legislature that rivals the attitudes and policies of the Taliban when it comes to what they approve and disapprove–whether constitutional or not.

    Buit not one piece of legislation was passed that has created one job.

  3. There is no way this will withstand Constitutional scrutiny.

    Unless, of course, the Unholy Fascist Five (Scalia, Roberts, Ailito, Kennedy and Thomas) of SCOTUS find the speech distressing to the corporate interests they support to the exclusion of supporting the rights of actual citizens.

  4. Hey now Jude. Some of us still have some sense.

    This should also apply to most political attack adds, anti-abortion adds, and some televised church sermons.

  5. We are getting closer and closer to the thought police knocking on our doors. The 2002 movie “Minority Report” seems to be less and less sci-fi fiction, and becoming more and more tomorrow’s reality.

    In such a world, how is anybody ever innocent of anything? We will all soon be just one-click away from a prison sentence.

  6. I find Rand Paul extremely disturbed . . . er . . . disturbing. Particularly since he announced his desire to pass a rule making it a crime to HEAR someone say threatening things. Please see to it that I am not further disturbed by this phony clown’s image ever again or I shall seek legal remedy through this excellent, well thought out bit of legislation.

  7. The Tennessee Legislature has way too much time on its hands. I propose they adjourn, pick up their undeserved and unearned paychecks, and go home where they can only do damage to their immediate surroundings.

  8. Whelp, alls I cane say iz y’all Tenn. folk needs tae git shed of them currant legizlaychurmin n’ ‘lect sum of them deep dark hollared hillbillies strung out on moonshine whisky–theyz wood do far less daystrutshun to yourn beautiful state.

    Holy mackerel Kingfish!–whut’s a’ happnin’ tae our country!

  9. OS,
    You are on the right track. The Tennessee legislators and the governor need to be shown the door by sensible residents of Tennessee. This new law is just incredible. Can anyone write a software program that will prevent any of my postings from being read in Tennessee?

  10. No raff. Look for the warrant to be served on you in the near future. You could plead not guilty on the grounds of sanity.

  11. Be careful with that Rafflaw, The appropriate corollary to “In the land of the blind the one-eyed man is king” is “In the land of the insane the half-wit is hanged”. I have found that to be a good, if somewhat unconventional, factor to consider prior to taking an action that requires a risk assessment.

  12. BIL, It’s true to boot! If I haven’t mentioned that I really like the little green guy smily ending your postings lately, well, I really like the little green smily guy ending your postings.

  13. This is another example of the republican state legislatures trying to “out conservative” each other. If I saw someone suggest a law like this on a message board I would think I was getting trolled (something that is also illegal under this law). When Sarah P suggested that Haslam wasn’t “conservative enough” I didn’t think he’d take the criticism to heart.

  14. I wish it was original but it’s not. I heard it so long ago I don’t any longer know where I first saw or heard it but an attribution by a poster on the Google says it’s a Walt Kelly truism, he of (Pogo) “We have met the enemy and he is us” fame. I can believe it, it sounds like something from Pogo. I recall in the 70’s when there were calls in St. Louis to put Pogo on the editorial page of the newspaper (as well as discontinue it entirely) due to the anti-war position of some of the strips. The right has always been nuts IMO.

  15. LK, I remember that strip, because I read it in the paper when it was published. That was a long time ago and I never missed a strip. I once attended a lecture by Walt Kelley. He was very funny and drew on newsprint non-stop the whole time, illustrating his jokes.

    What Pogo actually said was, “We has met the enemy and he is us.”

    ‘Has,’ not ‘have.’

  16. You’re right. It is from Pogo, my favorite comic strip of all time. In searching, I just came across this quote as well, which is quite appropriate to many of the stories on this site:

    “Thar’s only two possibilities: Thar is life out there in the universe which is smarter than we are, or we’re the most intelligent life in the universe. Either way, it’s a mighty sobering thought.”

  17. And how about, “Food for thought is no substitute for the real thing.” I wish that strip were still around.

  18. I did a Google search and the book has the title using ‘have’ instead of ‘has.’

    After some thought, I think it was during that Walt Kelly lecture I attended in the spring of 1953 that he drew that cartoon and line, using ‘has.’ It may not be the way it appeared in print. I do distinctly remember it because I am sensitive to verbs. After all, Pogo was a possum who lived in a swamp, and ‘has’ would be more typical of a rural southern dialect of swamp dwellers.

  19. The issue turns on the question of the Tennessee Constitution and whether or not it upholds freedom of speech. Then local laws.

    Because, as you know, the Federal government cannot infringe on speech in any way shape or manner including verbal threats to the government itself. (Of course, they violate this all the time because government officials are the biggest threat to life and liberty there is).

    That said, it was understood that state and local governments could and did limit speech.

    But this law is stupid. And whoever voted for it should be removed from office and their picture splashed across the internet with a caption that reads “Too stupid to hold public office” written underneath.

  20. Though I do think that people should have the exclusive right to put their own images (photographs) on the internet (or anywhere else) and that no one else may do so without permission including those in the “media”. And those who do put these images on the internet without permission should be subject to a serious court challenge.

    Photographs (visual expressions of ones self) are indeed personal property in my opinion. And image is thus stolen, as I see it. I’m always amazed at shutterbugs who give absolutely no thought whatsoever that I may not want my picture taken.

    I also believe it should be illegal for the government to photograph citizens not charged with crimes. I believe programs like COPS is a violation of ones right to their person and effects (the fourth amendment). All persons at the outset are innocent until proven guilty and yet the cameras are rolling from the get go.

    With Ustream and other such live video sites, people will get swept up into having their images plastered around the world when they care not for it. It should be forbidden. A warning should be posted whenever one is being filmed “live stream” to the internet.

    I can see exceptions being made for filming crimes in process, or accidents, and when the film will go into officials hands and not into civilians to do with what they wish. Meaning law enforcement should be able to use film or video that did not have the permission of those captured in the images.

    I am not necessarily opposed to cameras being used by businesses or government offices for the purpose of security, but I am opposed to recording those images on film or data discs. If there is no place to go in public without being tracked by cameras and recorded, liberty is dead. We have a right to go about without others documenting our every step in picture or video form without our permission.

    It should be a serious fine.

    All cops should be subject to being filmed in public.

  21. Mike A., “Food for thought is no substitute for the real thing” is a winner also. Kelly seems to have hit the trifecta of useful characterizations for his bit of legislation in Tennessee.

  22. Dang Nuutie! You must have taken BILs advice & gone back on your meds! That post is approximating rational human discourse. I’m not sending PP $5 for that one.

  23. Although I do love Nuuties regular use of multiple posts to continue the same thread of its “thought”

    In English we have these things called ‘paragraphs’ that are usually used for this purpose.

  24. Although I do love that in its first post Nuutie says the people who voted for this bill should have their pictures splashed all over the Internet and then the the second post says your image is yours alone and nobody should be allowed to use it. Thats the kind of philosophical consistency Nuutie is famous for.

    HEY! I could get used to multiple post single idea commenting :)

  25. So, if a historian posts photos of lynchings to talk about the history of the Ku Klux Klowns, some cracker could claim to be “offended” and have the person silenced.

    Or an atheist posts photos of the Nazis with their “gott mitt uns” (god is with us) symbols being blessed by priests, and a christian gets into a tizzy about it, the poster could be arrested.

    Talk about idiotic. And good luck prosecuting someone living outside the state.

  26. Wonder what would happen if everyone who is offended by pictures of the Confederate battle flag (not in an accurate historical context of course) filed a complaint. A truly concerted effort by those who are offended. I have an idea they would call a special session to repeal this POS legislation.

  27. I am confident enough that if this law holds up, I’ll eat my copy of the official pocket version of the U.S. Constitution, including the personalized Alan Grayson bookmark that came with it.

  28. Are you lot in the US really descended from the group that rebelled against the king over a tea tax? What has happened since then that you will now tolerate gross violations of basic freedoms by your own legislators? This isn’t a republican / democrat issue. Both sides should be up in arms about such a clear violation of the constitution.

  29. What the hells is going on in the south these days. All these southern states passing laws to toss people in jail for talking, communication, working, looking like a foreigner. This has become a country of pussies and cry babies. It’s not America any more – it is a country of intolerant whiners. So if I send a picture of a cute little puppy and it invokes an emotional response, like joy then I can go to jail if it makes someone cry? Geez. What has this country become?

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    In Islam, denial of human rights is OK because:

    Islam is against pure democracy

    Islam tolerates slavery

    The misconception does not follow from the reasons given, and the reasons ignore a great deal of information.

    As stated earlier, Islam is a complete way of life. Given this, it is not surprising that the Creator is concerned with the method which we choose to govern ourselves. The preeminent rule which the Islamic state must observe is stated in the Qur’an (translation follows):

    [4:59 – O you who believe! Obey Allah, and obey the Messenger, and those charged with authority among you. If you differ in anything among yourselves, refer it to Allah and His Messenger, if you do believe in Allah and the Last Day; That is best, and most suitable for final determination.

    From this verse, it is clear that the state’s obligation of obedience to the Creator is as important as the obedience of the individual. Hence, the Islamic state must derive its law from the Qur’an and Sunnah. This principle excludes certain choices from the Islamic state’s options for political and economic systems, such as a pure democracy, unrestricted capitalism, communism, socialism, etc. For example, a pure democracy places the people above the Qur’an and Sunnah, and this is disobedience to the Creator. However, the best alternative to a pure democracy is a democracy that implements and enforces the Shari’ah (Islamic Law).

    The Creator also states in the Qur’an (translated):

    [42:36-38 – So whatever thing you are given, that is only a provision of this world’s life, and what is with Allah is better and more lasting for those who believe and rely on their Lord, and those who shun the great sins and indecencies, and whenever they are angry they forgive, and those who respond to their Lord and keep up prayer, and their rule is to take counsel among themselves, and who spend out of what We have given them.

    Allah orders us in this verse to conduct our matters by taking counsel among ourselves, or by consulting each other. This is the methodology of the Islamic state, to consult one another, but to always keep the Qur’an and Sunnah paramount. Any law which contradicts the Qur’an or Sunnah is unlawful. This broad principle of consultation is certainly wide enough to encompass a form of government where all are heard – in fact, encouraged to be heard. The early Islamic states were of this form. The petty governments of many `Muslim countries’ today do not apply this principle and in fact commit many crimes against the people.

    As for slavery, Islam is unique among the `religions’ in its close attention to the peaceful removal of this practice. Before the advent of Islam, slavery was widespread all over the world. The Messenger of Islam taught us that freeing slaves was a great deed in the sight of Allah. From the Sunnah, specifically in the study of the Sunnah called Sahih Bukhari, we find:

    [3:46:693 – Narrated Abu Huraira: The Prophet said, “Whoever frees a Muslim slave, Allah will save all the parts of his body from the (Hell) Fire as he has freed the body-parts of the slave.” Said bin Marjana said that he narrated that Hadith to `Ali bin Al-Husain and he freed his slave for whom `Abdullah bin Ja’far had offered him ten thousand Dirhams or one-thousand Dinars.

    Also from the Sunnah, specifically in the study of the Sunnah called Malik’s Muwatta, we find:

    [38:9:15 – Narrated Aisha Ummul Mu’minin: The Messenger of Allah, may Allah bless him and grant him peace, was asked what was the most excellent kind of slave to free. The Messenger of Allah, may Allah bless him and grant him peace, answered, “The most expensive and the most valuable to his master.”

    The Creator has also made it easy for slaves to gain their freedom. From the Sunnah, specifically in the study of the Sunnah called Sahih Bukhari, we find:

    [3:46:704 – Narrated Abu Huraira: The Prophet said, “Whoever frees his portion of a common slave should free the slave completely by paying the rest of his price from his money if he has enough money; otherwise the price of the slave is to be estimated and the slave is to be helped to work without hardship till he pays the rest of his price.”

    The condition of slavery is very different in Islam than the harsh conditions imposed by non-Muslims or disobedient Muslims. From the Sunnah, specifically in the study of the Sunnah called Sunan Abu-Dawud, we find:

    [41:4957 – Narrated AbuHurayrah: The Prophet (saw) said: None of you must say: “My slave” (abdi) and “My slave-woman” (amati), and a slave must not say: “My lord” (rabbi or rabbati). The master (of a slave) should say: “My young man” (fataya) and “My young woman” (fatati), and a slave should say “My master” (sayyidi) and “My mistress” (sayyidati), for you are all (Allah’s) slave and the Lord is Allah, Most High.

    Also from the Sunnah, specifically in the study of the Sunnah called Sahih Bukhari, we find:

    [3:46:721 – Narrated Al-Ma’rur bin Suwaid: I saw Abu Dhar Al-Ghifari wearing a cloak, and his slave, too, was wearing a cloak. We asked him about that (i.e. how both were wearing similar cloaks). He replied, “Once I abused a man and he complained of me to the Prophet. The Prophet asked me, `Did you abuse him by slighting his mother?’ He added, `Your slaves are your brethren upon whom Allah has given you authority. So, if one has one’s brethren under one’s control, one should feed them with the like of what one eats and clothe them with the like of what one wears. You should not overburden them with what they cannot bear, and if you do so, help them (in their hard job).”

    As a result of the teachings of Islam, slavery was almost completely eradicated from many areas of the Muslim world, peacefully and without bloodshed.

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