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. Lottakatz:

    “In the land of the insane the half-wit is hanged.”

    Wonderfully evocative.

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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?

  7. 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!

  8. 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.

  9. 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.

  10. I find those commercials with the sad-eyed dogs distressing. Can the ASPCA be prosecuted?

  11. 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.

  12. 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.

  13. 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.

  14. 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.

  15. 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”?

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