New Tennessee Law Bars Posting “Disturbing” Images Online

Ars Technica reports on a new Tennessee law that seems to have some rather serious Constitutional problems:

A new Tennessee law 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 Tennessee legislature has been busy updating its laws for the Internet age, and not always for the better. Last week we reported on a bill that updated Tennessee’s theft-of-service laws to include “subscription entertainment services” like Netflix.

The ban on distressing images, which was signed by Gov. Bill Haslam last week, is also an update to existing law. Tennessee law already made it a crime to make phone calls, send emails, or otherwise communicate directly with someone in a manner the sender “reasonably should know” would “cause emotional distress” to the recipient. If the communciation lacked a “legitimate purpose,” the sender faced jail time.

The new legislation adds images to the list of communications that can trigger criminal liability. But for image postings, the “emotionally distressed” individual need not be the intended recipient. Anyone who sees the image is a potential victim. If a court decides you “should have known” that an image you posted would be upsetting to someone who sees it, you could face months in prison and thousands of dollars in fines.

As Eugene Volokh notes, the Constitutional problems with this law are rather self-evident:

The law now applies not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,

  1. If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”
  2. Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”
  3. The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”
  4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Pretty clearly unconstitutional, it seems to me.

Fortunately, this seems pretty likely to be struck down in Court. However, it leads to a question — what possesses two houses of the Tennessee State Legislature and the Governor to pass a law that is clearly blatantly unconstitutional? I can understand having disagreements about a close Constitutional issue, but this is not a close issue. They basically ignored the First Amendment when they passed this law, and that strikes me as a dereliction of duty.

 

FILED UNDER: Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. michael reynolds says:

    what possesses two houses of the Tennessee State Legislature and the Governor to pass a law that is clearly blatantly unconstitutional?

    I believe I can answer that: Republicans in control of both houses and a Republican governor.

  2. Well, Michael, as a lifelong Tennessee resident and voter, I assure that the Democrats are equally as stupid around these parts. Furthermore, the …

    Tennessee law [that] already made it a crime to make phone calls, send emails, or otherwise communicate directly with someone in a manner the sender “reasonably should know” would “cause emotional distress” to the recipient.

    … long predates Republican control of the state government.

    But what do I know? I have only lived here all my life.

  3. TG Chicago says:

    Tennessee law already made it a crime to make phone calls, send emails, or otherwise communicate directly with someone in a manner the sender “reasonably should know” would “cause emotional distress” to the recipient.

    So if a gay man in Tennessee comes out to his fundamentalist parents, he’s breaking the law? Or, for that matter, if the fundamentalist parents tell the son that he’s no longer welcome at their house?

    Heck, it seems like it’d be illegal to serve divorce papers in TN. Or for the military to go to a servicemember’s parents’ house to inform them of the death of their child. Or even for a policeman to issue a speeding ticket. All of these things should be reasonably known to cause emotional distress.

    And that’s before we get into the new law!

    Maybe the law is more nuanced than this tiny excerpt suggests, but I wonder if even the old version of the law is Constitutional.

  4. TG Chicago says:

    (Should have looked at the law. Looks like the “legitimate purpose” clause would cover those things.)

  5. michael reynolds says:

    Donald:

    And yet this law was passed and signed by Republicans.

    But, I take your point: maybe stupidity in TN is bipartisan.

  6. JKB says:

    TG Chicago, you missed the part where the government decides what gets prosecuted.

  7. John Burgess says:

    Stupidity in legislatures, bipartisanly, is endemic. Feel good legislation, ‘It’s for the children’ legislation, ‘OMG, We have to do something!!1!’ legislation are the constant, not the exception.

    Scalia’s dissent in Sykes v. United States sums it up nicely:

    We face a Congress that puts forth an ever-increasing volume of laws in general, and of criminal laws in particular. It should be no surprise that as the volume increases, so do the number of imprecise laws. And no surprise that our indulgence of imprecisions that violate the Constitution en- courages imprecisions that violate the Constitution. Fuzzy, leave-the- details-to-be-sorted-out-by-the-courts legislation is attractive to the Congressman who wants credit for addressing a national problem but does not have the time (or perhaps the votes) to grapple with the nittygritty. In the field of criminal law, at least, it is time to call a halt. I do not think it would be a radical step—indeed, I think it would be highly responsible—to limit ACCA to the named violent crimes. Congress can quickly add what it wishes. Because the majority prefers to let vagueness reign, I respectfully dissent.

    [HT Volokh.com]

  8. “… maybe stupidity in TN is bipartisan.”

    Which does not exactly distinguish Tennessee from any other state, I am sure you will agree.

  9. Franklin says:

    … will cause emotional distress to a similarly situated person of reasonable sensibilities.

    I’ve been on the Internet long enough to know that there’s no such person.

  10. mantis says:

    Yes, we have this attempt by the Republican Tennessee legislature to imprison people for posting images online that offend their delicate sensibilities, and also in Wisconsin the Republican legislature has decided that our crappy, way-behind-by-global-standards internet is perfect, and any attempt by universities to make it better should be outlawed, and any public networks providing affordable access to schools, libraries, etc. should be dismantled or privatized:

    A budget approved by a legislative committee last week would force the University of Wisconsin to return $39-million in federal grants awarded to expand high-speed Internet access across the state, state education officials said.

    The plan would also require all University of Wisconsin institutions to withdraw from WiscNet, a nonprofit network cooperative that services the public universities, most of the technical and private colleges in Wisconsin, about 75 percent of the state’s elementary and high schools, and 95 percent of its public libraries, according to David F. Giroux, a spokesman for the university system.

    ….

    Another provision in the plan would bar any University of Wisconsin campus from participating in advanced networks connecting research institutions worldwide, according to Mr. Evers’s memo. For example, the Madison campus would have to withdraw from Internet2, a high-speed networking consortium, said Mr. Giroux.

    You can tell me both parties are stupid all you want, but only one party thinks our Internet access should be slow, expensive, exist only to line the pockets of their benefactors, and scrupulously monitored for thought crimes.

  11. Tlaloc says:

    We must tell these politicians they may take our lives… but they’ll never take our Goatse pics!

  12. James in LA says:

    TN is legislating agin the End Times, when their world absolutely comes to an end as all these laws are struck down, and ability to stopit is reduced by changes in demographics. For them, what else other than the Rapture itself could be worse? And so they madly scramble, not realizing the actual world passed them by some time ago, and produce this drek. This mad last gasp for old power occurs all over the country just now.

    Nate Silver predicts gay marriage will eventually come to even TN. Talkaboutcher armageddons, I’lltellyawhat!

  13. OzarkHillbilly (used to be tom p) says:

    I find the picture at the head of this post strangely disturbing.

  14. Franklin says:

    Tlaloc – since I don’t dare do a Google search, can you just give me a hint as to what goatse might be? I’ve heard of it but figured some things are better left unseen.

  15. mantis says:

    Franklin,

    Do not look it up. You don’t want to know. You will see someone doing something horribly disgusting to his body.

  16. matt says:

    Franklin : Usually it’s a nasty picture of a man with a distended anus bent over holding it open with his hands (sadly that’s only one of many pictures involving this person). Goatse and Tubgirl were the big shock pictures of the early 2000s..

  17. Steve says:

    The goverment wants in all our lives. They are not happy unless they can make some group or segment unhappy. WE need a real tea party, not just a bunch of talking heads. We would have a balanced bugget if congress had not stolden SS funds for over 25 years and used it for general funding for pork. We have been taxed and pushed around ever since the Nam war so these creeps we vote in can play their games. Both the DEms and Reps have failed us for so long there may be no way to fix things. I think we should have reps in Washington that put us first.
    not big corps, and special intress groupes. Also a 10% sales tax that everyone pays. I’m sorry for the spelling, I spell like G W Bush. But think I may have a little more brain power than he. WE will never have a good goverment untill we throw these bums out and have it for the pepole by the pepole.

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  20. Derek says:

    What if the law upsets somebody? Are the lawmakers also law breakers? Seems to me that they have no legitimate purpose…