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June 14, 2011

Images Causing “Emotional Distress” Banned Under Tennessee Law

In a response to the recent rise in scandals involving the transmission of offensive material over the internet, the Tennessee legislature has passed a new law deeming it a criminal offense for anyone who “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,” that would likely “frighten, intimidate or cause emotional distress.” Those guilty of posting offensive material could face fines up to $2,500 and nearly a year spent in prison. Recent scandals have involved such high profile individuals as Brett Favre, Anthony Weiner, John Ensign, Tiger Woods, as well as everyday school teachers and students.
The new legislation, HB 300, is not without considerable protest however. Certain factors such as “reasonable expectation” “to cause emotional distress,” or if the communication lacked a “legitimate purpose” seem to imply a boundless prosecutorial limit to the law. This standard seems to remove the intent factor of a criminal harassment offense. Likewise, it is not necessary for the individual distressed by the material to be the target recipient, as anyone who comes into contact with the material is considered to be an injured party.
Eugene Volokh, a professor at UCLA School of Law, discusses in his blog post why he believes the addition to be unconstitutional:

  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 decision maker 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.

Another concern involves the ability of law enforcement to obtain complete access to social networking sites upon the production of facts suggesting the material sought is pertinent to a criminal investigation. Similarly, another constitutional issue arises as described by Julian Sanchez, a privacy scholar at the Cato Institute. Whereas it has been found in prior decisions by the Sixth Circuit that the government is required to obtain a full search warrant in order to access e-mail communications under the Fourth Amendment, it would seem logical that a private message on a social network would be no different. This regulation is seen just shortly after another Tennessee law banning the sharing of passwords to online services such as Netflix, indicating the adoption of a tougher approach by the legislature to online offenses.
Sources :
New Tennessee Law Bars Transmitting “Harassing” Images
Tenn. Law Bans Posting Images That “Cause Emotional Distress”
Posted By: Eston Whiteside