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. 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.

  2. 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.

  3. 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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    http://www.internetmoque.net – Compared Translations of the meaning of the Quran

    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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