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. 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.

  2. 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.

  3. Is the TN Bar Assoc. trolling for more work? This law will certainly generate $$$$$$$.

  4. 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 🙂

  5. 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.

  6. 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.

  7. 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.

  8. OS, Actualy “has” ‘sounds’ right for the setting. I enjoyed the strip for years.

  9. 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.

  10. 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.

  11. 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.

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

  13. 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.”

  14. 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.’

  15. 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.

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