In his blog, Eugene Volokh says a new Tennessee law banning the posting of images causing emotional distress without legitimate purpose is unconstitutional. The law did not specify the meaning of legitimate purpose.
Volokh argues that the law would seriously curtail free speech, “…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.'” -db
From a commentary in The Volokh Conspiracy, June 6, 2011, by Eugene Volokh.
One Comment
The “law” referred to here is actually a TN State Senate bill that was dumped in favor of a House bill, which is the version that was signed into law. The tn.gov website’s bill summary erroneously references the dead Senate bill — and can’t be revised now that the bill has been filed (stupid policy…). Here are some links you will want to see:
The actual bill — http://state.tn.us/sos/acts/107/pub/pc0362.pdf
The incorrect summary — http://wapp.capitol.tn.gov/apps/billinfo/BillSummaryArchive.aspx?BillNumber=HB0300&ga=107
The current harassment law that this bill amends — Tenn. Code Ann. § 39–17-308 Harassment(2008) (a) A person commits an offense who intentionally:
(1) Threatens, by telephone, in writing, or by electronic communication, “including electronic mail or internet services,”, to take action known to be unlawful against any person, and by this action knowingly annoys or alarms the recipient;
(2) Places one (1) or more telephone calls anonymously, or at an hour or hours known to be inconvenient to the victim, or in an offensively repetitious manner, or without a legitimate purpose of communication, and by this action knowingly annoys or alarms the recipient; or
(3) Communicates by telephone to another that a relative or other person has been injured, killed or is ill when the communication is known to be false….
You will notice that nowhere in the actual amendment and current law is there any mention of “emotional distress”, and the conditions of harassment are quite defined. If there is any constitutional issues with the law, it would be with the current harassment law’s 2nd sub-clause — which has nothing to do with images, nor has anything to do with the recent amendment.
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