According to Ars Technica, Tennessee Rep. Charles Curtiss introduced a bill that Gov. Bill Haslam signed into law that makes displaying an emotionally distressing image online a criminal offense. Punishment under House Bill 300 is nearly a year in jail or up to $2,500 in fines.
Do not frighten, intimidate or cause emotional distress
While it may be admirable that Tennessee is attempting to keep its laws up to date in the Internet age, clearly this idea is half-baked. When a legislature is bogged down by laws like that punish those responsible for posting “emotionally distressing” images and prosecuting Netflix users who violate terms of service by sharing their username and password with a friend, clearly change is needed.
HB 300 is actually an extension of a previous Tennessee law that makes it a crime to harass or cause emotional distress, via telephone, email or direct contact. If communication lacks a “legitimate purpose” and is “emotionally distressing,” according to the law, the sender or initiator could face jail time.
Distressed can sue, even if they find images accidentally
A fascinating wrinkle of Tennessee HB 300 is that even if certain people are not the intended recipient of an emotionally distressing image, if they happen to stumble across it online, they are victims, as defined by the law. As the law is written, if a court rules that the poster of the image “should have known” that the image would be upsetting, that person is subject to punishment by the fullest extent of the law.
How is this constitutional?
Bloggers have pointed out that HB 300 is entirely too broad. Leaving the interpretation of intent and the definition of emotional distress to law enforcement and possibly a jury is a waste of resources. Eugene Volokh of the blog The Volokh Conspiracy states that such things as pictures of Mohammed, blasphemous jokes about Christ or even insulting cartoons about a political group could cause someone emotional distress, even if they don’t belong to said religious or political group and are just acutely sensitive. Such triggering of liability flies in the face of free speech laws.
Another segment of HB 300 also draws legal ire. Under the new law, law enforcement is allowed to access “images or communications” posted to social networking sites if they can offer “specific and articulable facts” supporting the need to use the material in an ongoing criminal investigation. Ars Technica points out that by the new Tennessee law, this can be done without a warrant. Not only is this a more slack interpretation of the federal Electronic Communications Privacy Act, it violates the Fourth Amendment and the Warshak decision that was handed down by the Sixth Circuit court, which has jurisdiction over Tennessee.
Sources
Ars Tecnica: http://bit.ly/l7d5h7
Techdirt: http://bit.ly/laHPtB
Tennessee House Bill 300: http://state.tn.us/sos/acts/107/pub/pc0362.pdf
The Volokh Conspiracy: http://volokh.com/
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