Friday, a new Tennessee law was changed to provide (new material italicized):
(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
(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.
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. 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.
Carl the EconGuy says:
If you say it’s unconstitutional, I’m sure you’re right. But the irony is that the law is so offensive it seems to violate itself. Not a bad legislative feat, that.
June 6, 2011, 2:42 pmSteve says:
The statute could of course be better written, but the requirement of “a reasonable expectation that the image will be viewed by the victim” suggests to me that there has to be a specific, intended victim or victims, as opposed to “some random visitor to my website will likely be offended.”
June 6, 2011, 2:53 pmSuperSkeptic says:
Maybe, who knows? It all depends on how prosecutors decide to use it, really.
Score one for the touchy-feely crowd in Tennessee…
June 6, 2011, 3:08 pmBill Poser says:
My perennial question in the case of blatantly unconstitutional laws like this is, do the legislators really not know that the law is unconstitutional, or are they aware of it and either just trying to make political points or hoping that the law will have some effect before it is struck down? A significant percentage of legislators are lawyers, and they do have legal advisors, so it is hard to believe that as a group they don’t know.
June 6, 2011, 3:08 pmEugene Volokh says:
Steve: So? Someone who has a Facebook page or a Web site might well know that (say) classmates or others of particular politicla, religious, or ethnic groups visit the page, and might be intending to offend or annoy them.
June 6, 2011, 3:12 pmRedman says:
It certainly would present a civil cause of action. I don’t see the difference between causing emotional distress via words and causing emotional distress via pictures. The intent and the result are the same.
June 6, 2011, 3:21 pmDarel Finkbeiner says:
How has this law been applied in TN? I mean previously, before the change, what was the purpose, what was intended? Just the idea of threatening or intimidating being a criminal offense? Is the purpose of including images to include for instance the image of a noose or whatever being used to indicate a death threat? Death threats are not protected, right?
Just trying to understand the purpose of the law.
June 6, 2011, 3:24 pmBrian Thomson says:
Volokh commenters had better ensure their avatars won’t alarm the Volunteers.
June 6, 2011, 3:25 pmptt says:
The TN legislature has no doubt discovered Chat Roulette.
June 6, 2011, 3:27 pmJohn Carlson says:
Prof Volokh,
How is the structure of this law different from the structure of the Stolen Valor Act? In Tenn, it (the photo) is criminalized unless it’s for a “legitimate purpose.” In Congress, it (the false claim to a military medal) is criminalized unless you (the imposter) can prove somehow that your false claim sits close to “speech that matters,” in which case the false claim is protected. If anything, or so it seems to me, the Tenn law is more defensible. At least it requires proof of a tangible harm, something sorely lacking from the SVA. Full disclosure: I’m Strandlof’s appellate lawyer, from the FPD.
(For those not familiar with Strandlof and the Stolen Valor Act, which punishes false claims to have rec’d certain military medals, Prof Volokh filed an amicus brief in the district court (though not on appeal). Joining the govt, his brief defended the constitutionality of the statute. The case was argued to the 10th Circuit on May 12.)
June 6, 2011, 3:39 pmgooners says:
Given the world wide nature of the web, how would a state enforce this kind of thing?
June 6, 2011, 3:46 pmDavid C. Brayton says:
What is the difference between “malicious intent” and “intent”? Doe the fact that the intent must be malicious help this statute?
One example, where it is helpful is murder. If a defendant kills someone, then he is guilty of murder. But if it is done with really malicious intent (i.e. because the victim was a member of a certain protected class) then she is guilty of a hate crime.
Is publishing a photo of a dead soldier in the news different from re-posting the same photo on a FaceBook page where the dead soldier’s family is has the same likelihood of seeing it?
June 6, 2011, 3:51 pmChris Rhodes says:
I think you mean, “It all depends on which serf pisses off a DA or his friends in the PD first.”
I’m sure the hard-as-nails police departments around TN will feel very “emotionally distressed” when someone posts their dirty laundry to YouTube. What possible “legitimate purpose” could they have for showing our fine boys in blue dispensing “justice” to an uppity citizen? They were obviously just trying to start something.
June 6, 2011, 3:51 pmTomH says:
So much for peopleofwalmart.com …
June 6, 2011, 3:53 pmAssistant Village Idiot says:
I’m trying to guess what they thought they were fixing. Is this an anti-cyberbullying attempt, or about hate speech, or what? Does this have a kid’s name attached to it, such as “Brittany’s Law?”
Lawyers or not, legislators sometimes just get rolling on a title and don’t pay the attention that they should. Which is why great names for legislation always put my back up on general principle. The Universal Peace And Justice Act Of 2011 is going to be a bad idea, you just know it.
June 6, 2011, 4:05 pmSuperSkeptic says:
Chris Rhodes, yeah I heard about that story from Philadelphia; it is almost one-month old. PA is apparently an open-carry state… who knew???
I’m surprised nobody on Volokh has picked up on this story, actually…
June 6, 2011, 4:05 pmJohn Schilling says:
Bill,
Far too many years ago, I heard the Chief Justice of a State Supreme Court speak, off the record and so I won’t name the state, on the subject you raise. He noted that a major portion of his job was striking down laws passed by state legislators who knew perfectly well that the laws were unconstitutional and would have no real effect.
No effect, that is, beyond securing a block of votes for the legislators in question. There is no law so stupid and/or evil that you won’t find at least a modest grassroots movement in support of it. Given a choice between telling thousands of registered voters, “You all are a bunch of idiots proposing something blatantly unconstitutional”, or, “Gee, I tried, look at my voting record, listen to the stirring impassioned speech I gave on the floor, it’s those idiot judges who are standing in the way…”
Legislators have to stand for reelection every 2-6 years. Judges generally do not. Do the math. And if you can see a way that some fraction of the law’s intent could have been met in a way that would survive a Constitutional challenge, assume that the people who wrote the law saw the same possibility and decided against it.
That said, the revised law does seem to suggest that Rickrolling is now a misdemeanor in Tennessee, so maybe it isn’t entirely stupid/evil. Now, capital punishment for a Goatse link, anyone?
June 6, 2011, 4:13 pmSteve2 says:
You’re right, the intent and result are the same, whichis why both should be free of criminal or legal penalty.
June 6, 2011, 4:14 pmSteve2 says:
Err, both be equally free of criminal or civil penalties.
Apparently the “edit comment” feature doesn’t load right on a Droid, fyi everybody.
June 6, 2011, 4:19 pmSuperSkeptic says:
Who is to say exposing one to the fine musical stylings of Rick Astley has no legitimate purpose?!?!
June 6, 2011, 4:19 pmChristopher Taylor says:
Seems unconstitutional to me too, but the test these days is not “would this violate liberty?” but rather “will this upset someone, especially a protected class?”
June 6, 2011, 4:20 pmtwency says:
PA is Open Carry w/o a license except in a “City of the First Class” (ie. Philadelphia). In Philly, a License To Carry Firearms (available on a shall-issue basis from one’s home county or from Philly if a resident there) is required by statute for open carry. Everywhere else the LTCF is only required for other purposes such as concealed carry and transport in a vehicle other than to/from a shop or range.
June 6, 2011, 4:29 pmTed says:
If free speech is so valued in this country, and I think polling suggests that it is still a fairly respected value, then why are these laws being promulgated by politicians? What is driving them to undermine, in a very obvious manner, bedrock principles of our country?
June 6, 2011, 4:34 pmSteve says:
Again, I believe the requirement of “a reasonable expectation that the image will be viewed by the victim” suggests to me that there has to be a specific, intended victim or victims. I don’t believe it would be enough just to say “I bet some of my black classmates will visit my website and be offended.”
What is the difference between emailing a person an offensive image, and posting it on your website while having a reasonable expectation that that person will visit your website and see it? Well, for most of us, it would be unusual for us to expect that a specific person will come view our personal website. But if we did reasonably expect such a thing – for example, if I know Eugene Volokh visits my personal website every day at 5:00 p.m. – then there’s not a big difference between emailing him an image and displaying it on my website.
But I’m not sure to what extent EV is looking to make a point about the differences in the statute before and after this amendment, or about how the tort of intentional infliction of emotional distress is unconstitutional in all circumstances, or what.
June 6, 2011, 4:38 pmAnonymous says:
This is just statutory intentional infliction of emotional distress (and will be construed in accordance with the common law cause of action, I’d presume). I don’t see the problem here, given that there are actually pretty significant bounds on that cause (no, I don’t love IIED, but it is somewhat bounded by traditional tort principles and the special restrictions placed on the emotional distress torts).
In other words, it’ll be construed constitutionally, though I could arguably see a vagueness problem with it insofar as it provides too much discretion in who to pursue.
June 6, 2011, 4:40 pmSuperSkeptic says:
This is off-topic (forgive me, but I’m responding to others…):
So, if I do not possess a “license to carry firearms” (aka a concealed carry permit) in the state of PA (not philly, hburg, or pittsburgh), and I go down the street and buy a gun from a shop (and tell them my name, etc. or whatever else they need legally to sell it), I can walk out of that store with a loaded weapon strapped to my hip in plain view and continue to cruise the neighborhood? What about more than one of such weapons?
June 6, 2011, 4:45 pmgooners says:
The difference between an abstract value and real world application? People don’t generally understand how laws are written or how what is common sense to them will affect other people. Remember that commercial with the firefighters writing legislation over their Nextel phones? A lot of people think things could be run that way. So they begin with wanting to write a law against something obviously offensive, to “protect the children” or something, but then the law has to be generally written to be functional, except now it is so general it affects things it was never intended to affect.
June 6, 2011, 4:48 pmSuperSkeptic says:
Not a big difference? It is the difference between finding someone on the street and tapping them on the shoulder to hand them a leaflet or going to someone’s house invited to pick one up.
June 6, 2011, 4:49 pmEugene Volokh says:
Redman: Actually, this law covers a considerably broader range of speech than does the intentional infliction of emotional distress tort. The tort requires “outrageous” conduct, a pretty high bar; the new Tennessee criminal law doesn’t. The tort requires substantial emotional distress; the new criminal law doesn’t. Under Snyder v. Phelps, the tort has to exclude speech on matters of public concern; the criminal law instead has a “legitimate purpose” requirement, which focuses more on the motivation for the speech than on the substance, and is thus potentially broader.
Darel Finkbeiner: Other terms in the law cover threats; the material that I quote applies to speech that’s emotionally distressing regardless of whether it’s threatening.
June 6, 2011, 4:51 pmTed says:
Oh really? So there’s no difference between me burning a cross on my front lawn, and me burning one on your front lawn?
June 6, 2011, 4:58 pmStephen Lathrop says:
Looks like a misguided attempt to move in the right direction. The law is vague. I can’t figure out what they thought they were prohibiting. I’ll leave it to the lawyers to say all the other things wrong with it.
But there is a real problem that probably lies behind this misguided legal effort. The internet has created a new publishing reality. Prior to the internet, publishing of various kinds, including the sort of self-publishing that goes on on this site, was usually expensive, and required a good deal of organization to accomplish. It was also hard to do anonymously. Those constraints had both positive and negative results. One negative result was that most people were largely excluded from publishing. A positive result was that publishers worked under the kind of practical accountability that arises when you are spending money, and making yourself publicly conspicuous at the same time. As it turned out, not too many people wanted to dig deep into their pockets to make themselves odious in public.
With the internet, those constraints are off. You can self-publish anything, essentially for free, and hide behind an alias while you do it. That encourages invasion of privacy—and maybe several other kinds of malicious behavior—that simply haven’t been major problems under the old publishing regime.
If laws against the intentional infliction of emotional distress pass constitutional muster, then it seems like the new anything-goes publishing regime threatens to overturn the protections intended by those laws. And not just occasionally, but massively.
Gresham’s Law applies to more than bad money. Bad public discourse will tend to crowd out the other kinds. Who will wish to venture controversial views if the inevitable result will be a hail of anonymous personal attacks in retaliation? How will genuine leadership be recognized, if none dare sign their names as the signers of the Declaration of Independence did? Those are real problems, ones that threaten the very goals sought by the first amendment. They aren’t going to be fixed by unreflective first amendment fundamentalism.
June 6, 2011, 5:01 pmTed says:
This chain of reasoning, that you succinctly reduce to a single (albeit compound) sentence, seems like something even the most naive legislator could engage in. I guess I always assumed that “there ought’ta be a law,” was automatically followed by “what kind of law can there be?”
June 6, 2011, 5:05 pmohwilleke says:
The malicious intent to cause reasonably foreseen harm to an expected victim with an intent to cause harm without legitimate purpose doesn’t seem nearly as broad as suggested. For example, trying to convert someone to a religion is probably a legitimate purpose. A reasonableness requirement also escapes hypersensitive eggshell victim problems.
This seems not significantly different in constitutionality than a law banning extortion or credible threats (e.g. the crime of menancing) that are time tested to be valid under the constitution.
June 6, 2011, 5:05 pmTed says:
People have always talked shit to their friends about other people. The other people just didn’t know about it. Are you seriously suggesting that the harm is greater now that victims know about it? Shouldn’t they be able to explain or refute it, now that they know about, whereas previously, they were defenseless?
I don’t know about Gresham’s Law, but if this is true, maybe we should respect free speech at all? I mean, I thought we tolerate the bad so that the good may rise up. It doesn’t make a lot of sense to tolerate the bad, so that there can be more bad, does it?
Leaders.
If none dare, there is no genuine leadership. If few dare, their daring will define them as leaders.
I agree that your premises create quite the paradox for the principles and values enshrined by the First, but I disagree with your premises.
June 6, 2011, 5:25 pmErnie G says:
As frightening as the proposed law seems to be, I am even more frightened by the prospect that some day the Supreme Court, “informed” by Canadian and European law, will find The Right Not To Be Offended under a penumbra somewhere.
June 6, 2011, 5:33 pmarbitrary aardvark says:
if the jury determines legit purpose, then yes its unconstitutional. If the judge determined legit purpose, the statute might be constitutional, but may have no valid range of application. I suppose any accused person could bring a facial challenge on the grounds that this chills speech.
June 6, 2011, 5:35 pm§ 19. Freedom of speech and press; defamation
That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. I’m not sure what the case law on this is.
Skeptical Reader says:
If I pay for a billboard with a picture of John Doe that says “This man is a jerk,” then the communication is rude and insulting but legal. Such communications are not equivalent to yelling “Fire!” in a crowded theater or shouting “fighting words” to someone. I cannot see how criminalizing such communications can be constitutional, even when there is a clear intention to embarass or insult someone.
June 6, 2011, 5:36 pmA Free Speech Concern with Tennessee’s New Harassment Law » Brett A. Stroud says:
[...] Hat-Tip to Eugene Volokh @ Volokh Conspiracy (Link) [...]
June 6, 2011, 5:57 pmShelbyC says:
One difference is the potential for an audience other than the “victim”
June 6, 2011, 6:04 pmShaker Srinivasan says:
Uh oh, I must warn the author(s) of Jesus and Mo!
June 6, 2011, 6:07 pmwhit says:
what is the difference between
1) walking aside johnny as he walks down a sidewalk and repeatedly calling out to him ‘JOHNNY, YOU ARE AN UGLY POOPYHEAD!”
2) standing in a town park and proclaiming “Johnny Faskenheimer is an ugly poopyhead” again and again
The former can get you arrested, or at least get a warning from the cops and the victim can apply for an anti-harassment order
the latter is called free speech
this law is, imo, blatantly unconstitutional. it is also, yet again, another example in the constant theme of cops always getting blamed for making bad arrests (whether illegal or just plain bad judgment) but entire bodies of legislature getting away with CONSTANTLY passing laws that are obviously blatantly unconstitutional and it continues
i would NEVER arrest for such a ‘crime’ as identified in this statute. there is a right to free speech. there is no right not to “feel bad” about stuff other people say about you, and yes that includes images.
June 6, 2011, 6:35 pmStephen Lathrop says:
I have never seen nor heard of such a billboard, at least not in the case of any person not already a public figure or candidate for office. I doubt Skeptical Reader has either. Which is the point. Under the old publishing regime many destructive practices didn’t happen much, for practical reasons. With the internet in place, those same practices are a mouse click away, and have already become commonplace.
I note also that some of the commenters above seem to have little or no notion of the difference in consequence between private and published communications.
June 6, 2011, 6:49 pmStephen Lathrop says:
It seems to me that unless Whit’s guy in the park is engaging in obvious satire, he is skirting close to defamation—maybe saved by the fact that he can claim that there is nothing specific in his allegation. I doubt he could substitute “dishonest” for “ugly poopyhead.” Not my field, though. I would be interested to hear from some of the lawyers about the boundaries of that kind of conduct, if any.
June 6, 2011, 6:58 pmBill Poser says:
John Schilling@I agree about the goatse link. That’s what I immediately thought of when trying to find a justification for this law.
June 6, 2011, 7:29 pmSteve2 says:
Seems to me the only difference is that in the first one, Johnny should cold-cock you and in the second he should challenge you to a duel. Either way, the solution to people saying mean things about you isn’t to go whining to the law, it’s to handle them yourself. And if you can’t handle them yourself or tough out what they’re saying, you deserve to suffer.
There is no value in being nice to people who aren’t your friends.
June 6, 2011, 7:47 pmIgotBupkis, President, United Anarchist Society says:
OooooooKAY….!
June 6, 2011, 7:47 pmWho wants to back me in a lawsuit against the NY Times for archived copies of photos of “Piss Christ” and “Mary in Elephant Dung”? Anyone want to bet that suit gets cleared through to the SCotUS real, real fast?
whit says:
ugly poopohead is opinion, and how could i tbe “untrue” such that it is defamation
and if it is defamation, there is a place for that – civil court.
it’s not what we use the power of the state and the gun (iow LEO’;s) for
June 6, 2011, 7:55 pmwhit says:
i would argue that #1 at least has a valid law enforcement response. you have the right not to have somebody walking aside you, pestering you with insults – at least if you aren’t a public figure.
and it could get to the point of harassment or disorderly or whatever. you do NOT have the right to not have others say mean stuff about you etc. which is what this law addresses.
if i inundate johnny with harassing emails, that is criminally actionable in many cases. if i post lots of stuff on my website that he finds annoying, – TOUGH COOKIES
June 6, 2011, 7:59 pmHenry says:
Pretty silly piece of legislation. Wouldn’t fitting this into existing defamation actions like libel or false light have worked very well without the constitutional issues?
June 6, 2011, 8:05 pmClint says:
IANAL.
Do I correctly understand that Netflix must now stop streaming movies in the thriller and horror categories to computers in Tennessee? Clearly a reasonable person would expect a horror movie to be at least a little bit frightening.
Before you answer, note that malicious intent is required in 4-A-i, but not 4-A-ii.
The fact that the viewer -asked- for the movie doesn’t appear to enter into it, the way the statute is phrased.
June 6, 2011, 8:31 pmwhit says:
you have to understand the politics. this law was passed because soccer moms/dads routinely call police because little sally-sass-a-lot is saying mean things about little mary precious-angel on her myspace page and the cops tell them “tough. it’s not illegal”. this pisses parents off. they complain. so, the legislature responds. as they usually do – with unconstitutional kneejerk legislation. when there is no disincentive to pass illegal laws, they will continue to do so.
then, later, after much wasted time, energy and $$$ when the law is overturned, the legislature can shrug their shoulders and say ‘well, we tried”
June 6, 2011, 8:33 pmtwency says:
(This continues an off-topic discussion, with apologies to those who are understandably more interested in the original topic.)
First, I’m not a lawyer and this is not legal advice. But broadly speaking, yes. In order to purchase the firearm from the shop you would have to pass a background check to make sure you aren’t prohibited from purchasing; the check is usually “instant” (done by phone) but can be delayed if the check system is down or your record doesn’t come up clear for some reason.
Having passed the check and taken ownership of your firearm, even without a License to Carry Firearms you may legally be in most public places with a loaded firearm plainly visible in a non-threatening manner (e.g. holstered), other than the city of Philadelphia and some other prohibited places (e.g. courthouses are prohibited, and special rules may apply on state lands like parks and gamelands). To my knowledge there is no limit on the number of weapons an individual may carry.
State law generally preempts municipalities from enacting their own firearms restrictions. However, state agencies which control certain public lands can impose additional restrictions on “their” lands. Harrisburg and Pittsburgh are not Cities of the First Class so open carry is legal there with or without a LTCF; only Philly has the statutory carve-out requiring a LTCF for open carry.
PA does not have a “concealed carry permit” as such, only the License to Carry Firearms. The distinction is not merely pedantic. One of the functions of the License To Carry Firearms is indeed to permit concealed carry, but it also permits open carry in Philly and permits transport of a firearm by vehicle beyond the limited purposes which are otherwise already permitted by state law (to/from dealer, range, gunsmith, hunting grounds). PA does have reciprocity with some states that offer Concealed Carry Permits/Concealed Weapons Permits, so certain out of state CCPs/CWPs are legally acceptable in lieu of a PA LTCF.
In order to avoid continuing to threadjack, I suggest if you are still interested in PA firearms laws that you check out the reference library and discussion forums at pafoa.org (PA Firearm Owners Association).
June 6, 2011, 9:00 pmBrian Thomson says:
Anonymous pamphleteering has a long and proud history. Technology has made it accessible to everyone. Hard to see how that is a bad thing.
June 6, 2011, 9:10 pmHenry says:
Sure, I get it. Its just so silly (and embarrassing).
June 6, 2011, 9:12 pm4C says:
Carl the EconGuy says:
“If you say it’s unconstitutional, I’m sure you’re right. But the irony is that the law is so offensive it seems to violate itself. Not a bad legislative feat, that.”
Nice one :-)
Utterly unconstitutional law, of course. Sadly, some poor schmuck is going to have to be the ‘test case’ that gets it thrown out, and spend some mega-bucks doing it :-(.
BTw, I find all pictures of liberals protesting to be offensive and distressing. Therefore, I suppose I can sue every media outlet in the country that has a nexus to Tennessee ? Which would be pretty much all the major ones, that have local affiliates.
Especially pictures of Medea Benjamin and Rosie O’Donnell, together or separately.
June 6, 2011, 10:09 pmIgotBupkis, President, United Anarchist Society says:
They do this intentionally. The vaguer it is the easier it is to pervert to whatever purpose is desired.
June 6, 2011, 10:57 pmIgotBupkis, President, United Anarchist Society says:
Hmmm, so we should create laws forcing lawmakers to personally fund Constitutionality checks in the court system?
Works for me…
June 6, 2011, 11:00 pmwhit says:
no, but nice fantasy.
June 6, 2011, 11:04 pmStephen Lathrop says:
A mistaken statement, unfortunately. Argument by analogy is okay, but it only gets you so far. Eventually you have to be able to make an argument that stands on its own, without the analogy.
When you try to do that in support of anonymous personal internet attacks, it gets easier to see why they are a bad thing. Such attacks cost the attacker nothing—a very important difference compared to publishing a pamphlet, where you have to organize and pay for paper, printing, and distribution. Those inconveniences and expenses provided practical assurance that pamphleteers might make false claims, but they couldn’t make limitless ones. As a practical matter, anonymous pamphleteers mostly stuck to subjects with some colorable public character. Do you know of any exceptions, of pamphlets full of character attacks, published anonymously out of pure spite against some non-public figure for a non-public purpose? Had that been common, few would have thought, as you do, that the history of anonymous publishing was “proud.” I doubt you would think so.
It is already more than obvious that internet attackers will observe no such boundaries. On the web, spiteful personal attacks against private persons have already become commonplace. So internet publishing is different, and will have different effects. The analogy fails.
June 7, 2011, 3:21 amGiant Frog says:
I uploaded this picture with the malicious intent of causing emotional distress to Sen. Ketron. I have a reasonable expectation that the image will be viewed by my victim because his shiny new law is being discussed on this well-known blog.
June 7, 2011, 8:59 amFub says:
Agreed 1000%.
This is why critiques of legislation that prattle about “unintended consequences” are so wrong.
The consequences were intended. The legislators were warned about the consequences before they passed the statute. They just didn’t care.
June 7, 2011, 9:45 amSparky says:
The amendment may be what got everybody’s attention, but wasn’t the statute just as unconstitutional before the amendment?
June 7, 2011, 10:49 amHaiku_John says:
I better watch out.
June 7, 2011, 11:22 amNone of the pictures I post
have any purpose.
whit says:
it is my general belief that if you do something in public, somebody may be there to take a picture of it. translation: never pick your nose on duty… in uniform.
fwiw, this law would make shows like Tosh.0 essentially completely illegal. Or maybe not. It’s ok to BROADCAST images that cause “emotional distress”, you just can’t post it to a website?
this makes sense to somebody?
June 7, 2011, 12:50 pmAren’t There Other Things To Discuss Besides “Weiner”-Gate? » ReasonAndJest.com says:
[...] Eugene Volokh: Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose&#… [...]
June 7, 2011, 12:57 pmPost A Picture That 'Causes Emotional Distress' And You Could Face Jailtime.. - Christian Forums says:
[...] [...]
June 7, 2011, 4:23 pmAnym_Avey says:
Really? Because there was one in the news just yesterday:
http://news.yahoo.com/s/ap/20110606/ap_on_re_us/us_abortion_billboard
June 7, 2011, 6:13 pmStephen Lathrop says:
Here is how Eugene Volokh characterizes the instance you cite: “While the fact pattern here is highly unusual (who buys billboards for such personal matters?)”—which was my point about Skeptical Reader’s example. Not sure what you are getting at. Do you wish to say more?
June 8, 2011, 1:13 amDoc Merlin says:
Eventually one of these absurd anti-bullying laws will make it to the SCOTUS when there isn’t a majority against it, and will stick. The next court will treat that as established case law instead of all the cases that came before it. It seems to me that there is a sort of ratchet effect that causes the courts to pick bad case law as binding, instead of good case law.
June 8, 2011, 8:30 amBrian Thomson says:
Stephen Lathrop, I support anonymous Internet posting. Yes, along with that baby comes bathwater, but my support for bathwater is incidental to not losing the baby.
June 8, 2011, 1:18 pmI do agree that the present is often not a simple extrapolation of the past. An apt observation I heard long ago though I don’t remember from what source is that whenever we can do something ten times quicker, easier, or cheaper than we could before, it is like acquiring an entirely new ability. The Internet has done that with communication many times over. People can broadcast their thoughts worldwide whether incisive, corrosive, or simply banal and self-indulgent, with incredible ease. Is Twitter bursting with Eureka! insights, or a lot of mental eructations? You be the judge.
As the use increases, so does the abuse. Attacks have gone digital that used to be accomplished with whisper and rumor. But that doesn’t mean that the traditional remedies are no longer sufficient. Unleashing criminal penalties and the State’s considerable powers of investigation are big steps that might themselves be abused. I don’t know that the volume of abuse has increased disproportionately, or the consequences to society have become graver, to support taking those steps.
Michael Suede says:
Nothing the State does is unconstitutional.
The State decides what the constitution means, not the public.
June 8, 2011, 3:03 pmMatthew Carberry says:
Expanding on the off-topic.
That’s the law in Pennsylvania and about 40 other states, although almost none of them have “home rule” exceptions due to absolute preemption. And yet the blood, it does not flow in the streets…
Of the 40+ states that allow carry either openly or concealed, a negligible number bother to regulate the number of weapons carried, whether concealed or openly, which is simply logical. After all, if you can be trusted with one firearm in public, what possible difference does having “one more” make?
Requiring any sort of permit or training to open carry is actually the minority legal position nationwide and has been for a long time. It’s the exercise in urban areas by the law-abiding that has spiked upwards recently, with no discernable negative effect on public safety or society, except among people frightened by the mere sight of inanimate objects that is.
June 8, 2011, 5:08 pmthe will to exist - Moronic lawmakers of Tennessee says:
[...] unconstitutional, you’re not alone. In a blog post, constitutional scholar Eugene Volokhpoints out just how broad the legislation is. The law doesn’t require that the picture be of the [...]
June 8, 2011, 6:19 pmTennessee Just Made Offensive Online Pictures Illegal | Gizmodo Australia says:
[...] The law prohibits the online distribution of any image that might “frighten, intimidate or cause emotional distress” to someone who sees it. Which, really, could be virtually anything. Beyond the obvious fecal-scattering, decapitation and other horrific things that spill forth from the internet cornucopia of perversion, the law is broad enough to affect lots of benign images. A picture of a spooky ghost? That could frighten someone! A photo of your friend’s ex? Your friend could send you to jail for it! The fact that an online image of anything that offends anyone is now illegal sounds highly contrary to our First Amendment superpowers. Ars quotes one scholar who agrees: “Pretty clearly unconstitutional” is his verdict. [...]
June 8, 2011, 7:53 pmtrash says:
This is a hilariously bad law. It’s rather difficult these days to draft a law that can’t stand up to a facial challenge, but the cretins of the Tennessee legislature have managed that feat ably.
June 8, 2011, 8:48 pmtrash says:
This is a hilariously bad law. It’s rather difficult these days to draft a law that can’t stand up to a facial challenge, but the cretins of the Tennessee legislature have managed that feat ably.
June 8, 2011, 8:48 pmOffensive Law of the Day - The Daily What says:
[...] How could this possibly be constitutional, you ask? It’s probably not. [...]
June 8, 2011, 9:41 pmV says:
2 words : First Amendment.
June 8, 2011, 9:41 pmDorian says:
I did it for the lulz. Isn’t that a legitimate purpose?
June 8, 2011, 10:11 pmandrea says:
So all of the pro-lifers who post pictures of partial-birth abortions to scare people into not getting them are now against the law? Sweet. Boo to everything else it’s going to be used for.
June 8, 2011, 10:23 pmPost A Picture That ‘Causes Emotional Distress’ And You Could Face Jailtime In Tennessee | War On You: Breaking Alternative News says:
[...] Source: Techdirt Over the last few years, we’ve seen a troubling trend in various state laws which attempt to come up with ways to outlaw being a jerk online. Many of these are based on politicians and/or the public taking an emotional reaction to something bad happening after some does something online that angered someone else. Of course, while it would be nice if jerks would go away or jerky behavior would cease, that’s just not realistic. The real issue is: how can it be constitutional to outlaw being a jerk? In many cases it raises serious First Amendment issues, among other things. The latest to jump into this game is the state of Tennessee, which apparently decided that just throwing people in jail for sharing music subscription passwords wasn’t enough: now they want to put people in jail for “causing emotional distress” to others. [...]
June 8, 2011, 10:39 pmKeinichn says:
You know, if I lived in TN once this thing takes effect, I would use and abuse the HELL out of it until somebody realizes how dumb the law is.
June 8, 2011, 11:00 pmPost A Picture That ‘Causes Emotional Distress’ And You Could Face Jailtime In Tennessee | The Hive Daily – Raw. Unfiltered. Fearless says:
[...] Techdirt Over the last few years, we’ve seen a troubling trend in various state laws which attempt to come up with ways to outlaw being a jerk online. Many of these are based on politicians and/or the public taking an emotional reaction to something bad happening after some does something online that angered someone else. Of course, while it would be nice if jerks would go away or jerky behavior would cease, that’s just not realistic. The real issue is: how can it be constitutional to outlaw being a jerk? In many cases it raises serious First Amendment issues, among other things. The latest to jump into this game is the state of Tennessee, which apparently decided that just throwing people in jail for sharing music subscription passwords wasn’t enough: now they want to put people in jail for “causing emotional distress” to others. [...]
June 9, 2011, 12:07 amTennessee Just Made Offensive Online Pictures Illegal [Wtf] - dotmem.com | random technology news, one post at a time says:
[...] The law prohibits the online distribution of any image that might “frighten, intimidate or cause emotional distress” to someone who sees it. Which, really, could be virtually anything. Beyond the obvious fecal-scattering, decapitation, and other horrific things that spill forth from the internet cornucopia of perversion, the law is broad enough to affect lots of benign images. A picture of a spooky ghost? That could frighten someone! A photo of your friend’s ex? Your friend could send you to jail for it! The fact that an online image of anything that offends anyone is now illegal sounds highly contrary to our 1st Amendment superpowers. Ars quotes one scholar who agrees: “Pretty clearly unconstitutional,” is his verdict. [...]
June 9, 2011, 12:10 amPosting images that ’cause distress’ is now a crime in Tennessee | MyCE – My Consumer Electronics says:
[...] This basically means that all of those people who like to visit social sites to post dead animal pictures or religious and political satire which is often construed as offensive might want to put their lawyer on speed dial. Even posting an embarrassing picture of a friend on Facebook could conceivably get you into legal trouble, as UCLA law professor Eugene Volokh note in a post about the legislation. [...]
June 9, 2011, 2:00 amTennessee Outlaws Free Speech | ProjectVirginia says:
[...] folks at Volokh Conspiracy have assembled the amended language into the original text of the Tennessee law: (a) A person [...]
June 9, 2011, 9:10 amPost A Picture That ‘Causes Emotional Distress’ And You Could Face Jailtime In Tennessee | Truth Is Scary says:
[...] Over the last few years, we’ve seen a troubling trend in various state laws which attempt to come up with ways to outlaw being a jerk online. Many of these are based on politicians and/or the public taking an emotional reaction to something bad happening after some does something online that angered someone else. Of course, while it would be nice if jerks would go away or jerky behavior would cease, that’s just not realistic. The real issue is: how can it be constitutional to outlaw being a jerk? In many cases it raises serious First Amendment issues, among other things. The latest to jump into this game is the state of Tennessee, which apparently decided that just throwing people in jail for sharing music subscription passwords wasn’t enough: now they want to put people in jail for “causing emotional distress” to others. [...]
June 9, 2011, 10:01 amNew Tennessee Law Bars Posting “Disturbing” Images Online says:
[...] Eugene Volokh notes, the Constitutional problems with this law are rather self-evident: The law now applies not [...]
June 9, 2011, 10:03 amTennessee Bans Offensive Online Pictures says:
[...] sounds unconstitutional, you're not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn't require that the picture be of the [...]
June 9, 2011, 10:09 amNathan Moore says:
I live in Tennessee, and the worst part is, if you look at the sponsors, there are about 20 in the House who WANTED to put their name on it, about equally divided between both parties.
Sigh.
June 9, 2011, 11:22 amTennessee Probably Doesn’t Want You Watching Human Centipede II Either | Daily Libertarian says:
[...] Volokh looks at the details and says it’s “pretty clearly unconstitutional.” He lists four potential actions, all fairly common in online communication, that would likely be criminalized under the [...]
June 9, 2011, 2:29 pmMaureen says:
Oh, look. It’s the return of the blush fine.
Oh, and of course all writing is image-based.
June 9, 2011, 8:01 pmTenn. law bans posting images that ’cause emotional distress’… says:
[...] sounds unconstitutional, you’re not alone. In a blog post, inherent academician Eugene Volokh points out only how extended a legislation is. The law doesn’t need that a design be of a [...]
June 9, 2011, 11:19 pmTennessee law bans posting images that “cause emotional distress” « All Things News says:
[...] unconstitutional, you’re not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn’t require that the picture be of the [...]
June 10, 2011, 6:52 amTennessee: Law Banning Images That Cause Emotional Distress - The POH Diaries says:
[...] sounds ridiculous at the very least and flat out unconstitutional at the most. Eugene Volokh analyzes the absurd bill at his [...]
June 10, 2011, 9:05 amWiglaf says:
This should be a convenient last ditch effort law by police who want to prosecute someone for posting video and pics of police acting badly in public.
June 10, 2011, 9:08 amNever Yet Melted » Strange Law Day says:
[...] Volokh —————————————————— Liberals are always arguing that we need to inform the American legal system with the superior wisdom of international jurisprudence. [...]
June 10, 2011, 9:10 amTennessee | Fear This Blog says:
[...] another law. It is now illegal to post offensive things online. What qualifies as offensive? Read the wording yourself, and maybe you can help me understand why I find this law so confusing and terrifying. By making [...]
June 10, 2011, 9:44 amThe Angry White Guy » Blog Archive » Tennessee law bans posting images that “cause emotional distress” says:
[...] Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose” Friday, a new Tennessee law was changed to provide (new material italicized): [...]
June 10, 2011, 9:53 amRob says:
Why do I get the stinking feeling that this unconstitutional law was covertly pushed forward by CAIR in Tennessee? For all we know is that CAIR does not like anyone posting any unflattering imagined depiction of the prophet Muhammad on the Internet or on FB. Adding that there’s a growing population of Muslims in Tennessee. That law seems geared specifically to protect Muslims’ “sensitivities” in Tennessee.
Throw out that unconstitutional law!
June 10, 2011, 12:00 pmTom says:
This proves what I’ve said for years that both major parties have become two sides to the same coin. Socialistic control, no regard for the Constitution and a general feeling that the people work for them, not them for us! I hope this law will be challenged in court! Everything I post, say or do online could be considered upsetting by someone somewhere. If I mention I believe in God, I upset an atheist! If atheist challenge believers, believers sometimes get upset, etc., Well I’m offended and upset by this law! Maybe those of us who are upset over this law should file a complaint toward the people who voted into law!
June 10, 2011, 12:09 pmNew Tennesse Law Criminalizes Free Speech, Thought Crimes: Bans Posting Images that “cause emotional distress” | Conservatives for America says:
[...] sounds unconstitutional, you're not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn't require that the picture be of the [...]
June 10, 2011, 12:32 pmTennessee Anti-Bullying Law Goes Too Far | REPUBLICAN REDEFINED says:
[...] Volokh: Friday, a new Tennessee law was changed to provide (new material italicized): (a) A person [...]
June 10, 2011, 12:33 pmTennessee Representative Charles Curtis of Sparta Wants Mean Pictures On the Internet To Be Illegal | Popehat says:
[...] Eugene Volokh has the specifics — and pertinent analysis – of Rep. Curtis’ proposed law: (a) A person commits an offense who intentionally: [...]
June 10, 2011, 1:06 pmPaul says:
Because you are a paranoid reactionary. You fear that throughout N. America there are Islamic committees of correspondence that are shadow governments in design, action, and effect. Furthermore, you fear that Islamic leaders are goading gullible young Muslims to become interested and involved in electoral politics, the better to prepare provincial and national governments for merger with the aforementioned shadow governments.
Btw, in Illinois, some Islamic leaders have gathered together for activities that they call the Council of Islamic Organizations of Greater Chicago. Their activities include Muslim ACTION! Day, an annual field trip to Springfield for hobnobbing among politicians and bureaucrats. Young Muslims are encouraged to attend, and it just so happened that the first MA!D was on a Thursday in May of 2009. Christians called that day Ascension Thursday, and this year’s MA!D was on Ash Wednesday.
Also btw, the House of Reps of the General Assembly of Illinois recently resolved (HR 0402) that the 9th month of the Islamic calendar is Green Month in the State of Illinois. Muslims call the 9th month, Ramadan. The CIOGC was involved. What was CIOGC’s motive, allegedly? “Protecting our environment and our earth for all faith groups”. The next Green Month starts on or about Aug. 1, shortly after the new moon, which will be on Jul. 31.
Still, I suspect that the Tennessean thin skin protection acts were motivated less by Islamic bigotry and malice than by political pettiness such as that suggested by John Schilling. Perhaps also there’s a politician with a sex scandal about to erupt into public view or which some politician fears may do so.
June 10, 2011, 2:50 pmTJ says:
This legislation is causing emotional distress for me.
June 10, 2011, 2:59 pmTennessee Law Nullifies First Amendment Right of Free Speech | Fellowship of the Minds says:
[...] of our First Amendment free speech right. In a blog post, constitutional scholar Eugene Volokh points out just how broad the Tennessee legislation is. The law doesn’t require that the picture be of [...]
June 10, 2011, 3:53 pmImages that cause Emotional Distress | chin wagging says:
[...] Read more @ The Volokh Conspiracy [...]
June 10, 2011, 6:43 pmAndrew Rhodes says:
I think the confusion will be in the way it is newly written.
“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”
That first “or” fouls up the definition by implying that it isn’t only a single individual. It could have been better worded this way if they really wanted to limit to direct communication:
“Communicates with or transmits to or displays an image directly to another person in a manner in which there is a reasonable expectation that the communication, transmition, or image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose”
June 10, 2011, 8:16 pmNew State Law Makes Posting Distressing Images a Crime – MacSoftware says:
[...] has many calling it unconstitutional, including UCLA School of Law professor Eugene Volokh.Volokh describes several behaviors that will soon be illegal:“If you’re posting a picture of someone in an [...]
June 10, 2011, 9:06 pmNew State Law Makes Posting Distressing Images a Crime | WorldWright's … says:
[...] describes several behaviors that will soon be [...]
June 10, 2011, 9:51 pmJBT says:
I have one question. If they post this law on the internet and, being a person dedicated to the Bill of Rights, I find myself distressed/concerned about our freedoms, can I sue the state of TN???
June 10, 2011, 9:55 pmNew State Law Makes Posting Distressing Images a Crime – - Simply ShareSimply Share says:
[...] describes several behaviors that will soon be [...]
June 10, 2011, 10:05 pmNew State Law Makes Posting Distressing Images a Crime says:
[...] has many calling it unconstitutional, including UCLA School of Law professor Eugene Volokh.Volokh describes several behaviors that will soon be illegal:“If you’re posting a picture of someone in an [...]
June 10, 2011, 10:29 pmTennessee to ban all “offensive” Internet images… OH NOES! « The Erosion of Freedom says:
[...] A new Tenn. Law makes it a punishable felony (In Tennessee (only?) – more on that later) to transmit any image that is intended to offend people, or as an accidental result, ends up offending someone. The image has to have no other purpose but to offend… Apparently the law is so badly written, that it punishes people who post an image that doesn’t have the ‘victim’ in it, but still offends the victim, and through a major loophole, the GOVT doesn’t have prove you intended the image to ‘distressing’ to the ‘victim’. All of these is found from the article posted on this blog. [...]
June 11, 2011, 1:28 amNew State Law Makes Posting Distressing Images a Crime - Omnia Veritas Blog says:
[...] describes several behaviors that will soon be [...]
June 11, 2011, 5:43 amIn Tennessee it will soon be against the law to scare, to frighten to upset or to cause distress to anyone « InvestmentWatch says:
[...] describes several behaviors that will soon be [...]
June 11, 2011, 9:22 amNew Tennessee Law Criminalizes Free Speech, Thought Crimes: Bans Posting Images That “Cause Emotional Distress” — ExposeTheMedia.com says:
[...] unconstitutional, you’re not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn’t require that the picture be of the [...]
June 11, 2011, 10:41 amTennessee Law Bans Posting Images That ‘Cause Emotional Distress’ – Violations Can Get You Almost A Year In Jail Time Or Up To $2500 In Fines!!! says:
[...] unconstitutional, you’re not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn’t require that the picture be of the [...]
June 11, 2011, 12:13 pmShowing a ‘distressing’ image could land you in Tennessee jail | dvafoto says:
[...] Volokh Conspiracy site, a group blog primarily written by US law professors, has some analysis of what sorts of images might be punishable by jail if posted online or otherwise [...]
June 11, 2011, 12:18 pmRob says:
Not quite (referring to the last part of your comment).
You’re an ignorant and a likely dhimmi if Muslims take over America and replace U.S. Constitution with sharia law. They’re just waiting for the right opportunities and they are very patient.
“Islam isn’t in America to be equal to any other faith, but to become dominant. The Qur’an should be the highest authority in America.” ~ Omar Ahmad, founder of Council of American-Islamic Relations, CAIR
“It is the nature of Islam to dominate, not to be dominated; to impose its law on all nations and to extend its power to the entire planet.” ~ Hassan al Banna, founder of the Muslim Brotherhood
I would rather that not happening at all in the future.
June 11, 2011, 12:45 pmKevin Schmidt says:
If I live outside of Tennessee and post on my Facebook page a picture of a Tennessee politician photoshopped to look like a clown, and it causes him to feel embarrassed, does that mean the Tennessee courts can order my state to arrest me and have me renditioned to Tennessee?
I only ask that because I intend to start posting embarrassing photos of all the clownish Tennessee politicians who passed this unconstitutional law.
June 11, 2011, 2:16 pmKevin Schmidt says:
Michael Suede:
Nothing the State does is unconstitutional.
The State decides what the constitution means, not the public.
It is obvious you have absolutely no idea what you are talking about. If what you said was true, then why don’t we still have slavery in Tennessee? Why are Tennessee women and African Americans allowed to vote? Why is abortion legal in Tennessee? Why is KKKristianity not Tennessee’s stater religion?
BECAUSE THE U.S. CONSTITUTION IS THE SUPREME LAW OF THE LAND AND EVERY STATE MUST FOLLOW IT!
Better read the Constitution for once in your life.
“We the People” are the sovereign government, on a national, state and local level. Our employees in our governments just work for us and must do as “We the People” say. They get their power from us, not the reverse as you so ignorantly suggested.
June 11, 2011, 2:28 pmNew State Law Makes Posting Distressing Images a Crime | Civically Minded says:
[...] Volokh describes several behaviors that will soon be illegal: [...]
June 11, 2011, 3:52 pmNew State Law Makes Posting Distressing Images a Crime | Stu Haugen says:
[...] describes several behaviors that will soon be [...]
June 11, 2011, 4:28 pmPlugInMonster says:
This is so unconstitutional that the law violates itself! Are the TN lawmakers that clown-ish?
June 11, 2011, 5:44 pmPlugInMonster says:
Guys, your freedoms are being flushed down the toilet to appease who exactly?
June 11, 2011, 5:45 pmLoboSolo says:
This just recently happened in Argentina http://www.codigomardelplata.com/ver_noticia_mar_del_plata.asp?codigo=3208
Basically, a woman found out that her husband was having an affair with her best friend. She put up this very derogatory sign across three different streets so that her family would see them. Illegal here? She can prove the affair so it’s true!
Now, under this law, if she were to email the picture on the website or make a “poster” that was a pdf or jpg file containing the same words, then she would be arrested for causing the woman emotional distress (she was already seeing a professional as it was).
Whatever happened to “sticks and stones may break my bones but words will never harm me”?
June 11, 2011, 9:10 pmLoboSolo says:
BTW, this law was sponsored by liberal democrats and approved by the republican majority … This is the result of collaboration between liberals and so-cons.
June 11, 2011, 9:18 pmTennessee Lawmakers Again Pass a Law Impacting Hollywood | anefalekyfib says:
[...] new law makes it a criminal offense for anyone who “communicates with another person?or transmits or [...]
June 11, 2011, 11:12 pmNew State Law Makes Posting Distressing Images a Crime says:
[...] describes several behaviors that will soon be [...]
June 12, 2011, 12:05 amNew Jersey, Tennessee, and emotional distress « For the Sake of Science says:
[...] Opposition to one is a macho-bullshit exercise in chest-thumping for the small dicked whereas opposition to the other is premised in the U.S. constitution: If you’re posting…say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or [...]
June 12, 2011, 12:19 amScuttlebutt » New State Law Makes Posting Distressing Images Online A Crime says:
[...] Volokh, a UCLA School of Law professor, describes seceral other behaviours that will likely soon become illegal. “If you’re posting a picture of [...]
June 12, 2011, 5:36 amProhíben en EE.UU. colgar fotos que puedan asustar | Taringa-X Descargas Gratuitas says:
[...] Si encima no existe un motivo legítimo esto podría suponer la carcel. Por supuesto, ya han saltadovoces de alarma que consideran esta medida inconsitucional. Basta recordar por ejemplo casos como las [...]
June 12, 2011, 11:03 amDavid Lapham says:
Since this is an amendment to SC 39-17-308, does it automatically make the rest of the code applicable to social network postings? If so, then anything I say online which happens to offend (“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”) someone could land me in jail!?
June 12, 2011, 11:42 amTennessee Lawmakers Again Pass a Law Impacting Hollywood | erubuvufel says:
[...] new law makes it a criminal offense for anyone who “communicates with another person?or transmits or [...]
June 12, 2011, 1:31 pmEmotionally distressed says:
Every time I see a person nailed to two pieces of wood, forming a cross, I get very emotionally distressed. Can we now have all churches and religious people who wear crosses or tattoos or in other ways display a tortured person on a cross, put away for good?
Please pretty please?
June 13, 2011, 2:19 amTennessee Lawmakers Again Pass a Law Impacting Hollywood | avularodo says:
[...] new law makes it a criminal offense for anyone who “communicates with another person?or transmits or [...]
June 13, 2011, 5:14 amTennessee is a dangerous place to think; the First Amendment ESPECIALLY Protects all Expressions of “Offensive” and “Injurious” thought—because these are the most dangerous to the “Comfort” of those who wield powe says:
[...] unconstitutional, you’re not alone. In a blog post, constitutional scholar Eugene Volokh points out just how broad the legislation is. The law doesn’t require that the picture be of the [...]
June 13, 2011, 6:27 amJohn H. says:
I had the exact same though.
June 13, 2011, 8:47 amZoe Brain says:
You can beat the rap, but you can’t beat the ride.
OK, the law is unconstitutional. But it will remain on the books, and people will be arrested and prosecuted for it, even though the judge will have to find them not guilty. Perhaps on appeal. The laws against homosexuality are occasionally used like this in Texas and other states.
Basically, it allows the DA to very selectively target specific groups. For example, a Gay Pride flag could reasonably be seen as likely to cause distress to Fundamentalist Christians, so displaying pictures thereof would incur prosecution as a matter of course. Pictures of anti-gay material though could remain unpunished because of prosecutorial discretion.
Given the Tennessee state legislature’s recent law that not only makes it illegal to pass a law that disallows discrimination against Gays, but also changes state law to remove the existing limited protections Intersex and Transsexual people formerly enjoyed, it’s fairly likely from the list of sponsors which group will be targeted first.
June 13, 2011, 9:06 amScab of a nation, driven insane : another week closer to the eschaton… says:
[...] Crime to Post Images That Cause "Emotional Distress" "Without Legitimate Purpose"… – they can’t really do that, can they? because it’s my impression that at least [...]
June 13, 2011, 12:27 pmVad says:
Let’s say, I put an caricature of Christ on my website. A Christian visits my website and is distressed by the image. Or I put a swastika, and the site is visited by a Jew. He now has all pieces of the puzzle: my making my website public, I had reasonable expectation that the image will be viewed by visitors; many visitors are Christians; that they will be distressed by the image is another reasonable expectation. Would be unbeatable case.
June 13, 2011, 11:29 pmVad says:
But wouldn’t this backfire from the rest of the electorate, those who would indeed find the law stupid and evil? wouldn’t they remember?
June 13, 2011, 11:39 pmkeepintime says:
Backwards, but that’s Tennessee.
June 14, 2011, 5:39 amDear Tennessee, please don’t put JETLaw in jail | JETLAW: Vanderbilt Journal of Entertainment & Technology Law says:
[...] you’re concerned about constitutional issues, you’re not the only one. Eugene Volokh of UCLA Law does a good job at pointing out some of the more disconcerting [...]
June 14, 2011, 7:03 amMitch says:
So we have our brave young men dying in foreign countries in an effort to protect those people from being forced to live under rules created by extremists…… Maybe we should bring those solders home to do the same work here.
June 14, 2011, 3:54 pmСвеженькое об Америке - Page 19 says:
[...] закон – http://state.tn.us/sos/acts/107/pub/pc0362.pdf Комментарий юриста – The Volokh Conspiracy На русском – Софт@Mail.Ru: За публикацию [...]
June 15, 2011, 1:57 pmTennessee passes law banning posting of distressing images online | Sync™ Blog says:
[...] to The Volokh conspiracy, a U.S. based blog run by mostly law professors, considers the law pretty much unconstitutional and [...]
June 15, 2011, 3:31 pmTennessee Law | Online Images | Frighten Emotional Distress | The Daily Caller says:
[...] libertarians expressed outrage at the law. Legal blogger Eugene Volokh described several situations where free speech rights could be criminalized, including the posting [...]
June 16, 2011, 11:55 amTennessee Representative Charles Curtiss Responds About Cyberbullying Bill | Popehat says:
[...] limited cases of cyberbullying, then their attorneys suck. Period. Full stop. It doesn’t take Eugene Volokh to point out its vagueness and overbreadth [...]
June 16, 2011, 12:10 pmTennessee Outlaws Transmission Of Emotionally Distressing Images | photoshoptutorials.za.net says:
[...] determining what sort of imagery is emotionally distressing, you can see why the law professors at the Volokh Conspiracy would describe the law as “pretty clearly unconstitutional,” before outlining a [...]
June 16, 2011, 12:24 pmTenn. law on online images under constitutional review by state’s attorney general (Daily Caller) | World Bulletins says:
[...] libertarians expressed outrage at the law. Legal blogger Eugene Volokh described several situations where free speech rights could be criminalized, including the posting [...]
June 16, 2011, 1:11 pmTenn. law on online images under constitutional review by state’s attorney general (Daily Caller) | News Bulletins says:
[...] libertarians expressed outrage at the law. Legal blogger Eugene Volokh described several situations where free speech rights could be criminalized, including the posting [...]
June 16, 2011, 1:46 pmPosting Pictures That Cause says:
[...] I can appreciate what the Tennessee legislature is trying to accomplish. I’ve been involved in cases where one party posted something on Twitter or Facebook that served no purpose other than to mock their spouse. Even though the person didn’t send it directly to their spouse, they were fully aware that it was likely the spouse would find it. However, the problem with this law is it’s so vague it could apply to just about anything, and this vagueness probably makes the law unconstitutional. [...]
June 16, 2011, 3:20 pmDo NOT Read This Blog In Tennessee | Rogue Medic says:
[...] Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose” [...]
June 19, 2011, 6:33 amCBLDF » New Tennessee Law Threatens Freedom of Expression says:
[...] a look at the HB 300, visit the Ars Technica website, read Eugene Volokh’s blog, or check out the Media Coalition’s summary of the [...]
June 20, 2011, 4:59 pmTennessee’s Ban on Publishing Distressing Images: Let Us Count the Ways It’s Unconstitutional says:
[...] law professor Eugene Volokh points out, this criminalizes a wide swath of expression protected by the First Amendment. It’s next to [...]
June 21, 2011, 9:02 pmTennessee's Ban on Publishing Distressing Images: Let Us Count the Ways It's Unconstitutional | Electronic Frontier Foundation says:
[...] law professor Eugene Volokh points out, this criminalizes a wide swath of expression protected by the First Amendment. It's next to [...]
June 22, 2011, 10:18 amRepublicans Rhapsodize in Rutherford Co. | Tennessee Report says:
[...] stoutly rejects claims that HB300, the cyber-bullying bill, violates free [...]
June 24, 2011, 8:47 pmDear Criminal Tennessee Legislature | Rogue Medic says:
[...] Crime to Post Images That Cause “Emotional Distress” “Without Legitimate Purpose” The Volokh Conspiracy Article [...]
June 25, 2011, 6:31 amTennessee’s Ban on Publishing Distressing Images: Let Us Count the Ways It’s Unconstitutional | GrassrootsHeadlines.com says:
[...] law professor Eugene Volokh points out, this criminalizes a wide swath of expression protected by the First Amendment. It’s next to [...]
June 25, 2011, 11:56 pmTennessee law bans ‘distressing images,’ opens your Facebook inbox « www.offmyfrontporch.com says:
[...] law professor Eugene Volokh points out, this criminalizes a wide swath of expression protected by the First Amendment. It’s next to [...]
June 27, 2011, 11:55 pm