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.