New Tennessee Law Bars Posting “Disturbing” Images Online

Doug Mataconis · · 20 comments

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, 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.” 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.” 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.” 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.