In an effort to tame the lawless hedonism of the Internet, the Tennessee legislature has enacted a law that bans the use of images which might “frighten, intimidate or cause emotional distress.”
The new law (which was amended from Tennessee House Bill 300 [PDF]) now not only forbids the direct one-on-one dissemination of offensive material, it also prohibits public, electronic transmission. Translation: It is now illegal in Tennessee to change your Facebook profile picture to goatse (please don’t Google that term).
Verbatim from the newly amended 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.
The intent of the original law seems sound. In theory at least, it was conceived to prevent people from phoning or emailing others with an intent to “frighten, intimidate or cause emotional distress.” Say, for instance, a vengeful spouse wants to terrorize his or her former partner; the state of Tennessee wants to prevent the former from sending pictures of decapitated kittens to the latter.
So far, so good.
At some point however, someone in the Tennessee legislature thought to use this concept to outlaw any and all offensive material on the Internet. Given that the ‘net is built on a solid foundation of inherent free speech and hardcore niche pornography, and that the law makes no mention of who might be ultimately responsible for determining what sort of imagery is emotionally distressing, you can see why the law professors at the Volokh Conspiracy would describe the law as “pretty clearly unconstitutional,” before outlining a number of now-unlawful hypothetical situations that illustrate the point:
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.
In somewhat related news, the Tennessee legislature also recently enacted a law making it illegal to share passwords for subscription media services such as Netflix.