Can we get online pharmaceutical ads banned in TN? (Late night musing... Bear with me.)

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Tennessee law bans posting Internet images that 'cause emotional distress'

Joe Newby, Spokane Conservative Examiner

Posted:  06/10/2011 8:56 AM



   

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A new Tennessee law makes it a crime to post an image that is likely to

" frighten, intimidate or cause emotional distress " to anyone who sees it.

Violators could face almost a year in jail or be fined up to $2500.

According to ARS Technica :

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.

That means if you post an image on your Facebook page that causes someone to be

frightened or suffer " emotional distress, " you could go to jail.

So long, Internet.

Eugene Volokh , a professor of law at UCLA, notes the pertinent part of the

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

( As the result of the communication, the person is frightened, intimidated or

emotionally distressed.

He translates this to English:

So 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.

ARS Technica reports the law also gives state authorities access to " images or

communications " that might be posted on social networking sites like Twitter or

Facebook if they can show the material is " relevant and material to an ongoing

criminal investigation. "

But what, exactly, constitutes " emotional distress? "   The law does not spell

that out, but Volokh explains some of the major issues with the new provisions:

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.

A post at Techdirt calls it an effort to " outlaw being a jerk online, " and

notes:

Honestly, any time you have a law where the liability is based on how some other

person feels , you've got a pretty serious problem. You can criminalize actions,

but making someone a criminal because someone else feels " emotional distress "

seems like a huge stretch.

One can see where such a law could lead.  Liberals like Bill Clinton have

longed for government control of speech on the Internet, but this goes too far.

According to Volokh, the law is " clearly unconstitutional. "

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