A person commits an offense who intentionally, without or prior to the filing of a [lawsuit] … communicates, in writing or by electronic communication, with a local government unit or local public servant in an offensively repetitious manner with the intent to influence, persuade, or induce the local government unit or local public servant to terminate, halt or cease a particular policy, practice, action or custom and the person:
(1) (A) Intends the communication to be a threat of initiating legal action against the local government unit or local public servant challenging the particular policy, practice, action or custom, and a reasonable person would perceive the communication to be a threat of initiating legal action; or
(B) Makes a threat within the communication to initiate legal action against the local government unit or local public servant challenging the policy, practice, action or custom; and
(2) Makes the communication knowing that it will alarm or annoy the local government unit or local public servant.
The proposal was apparently prompted by a desire to restrict Establishment Clause challenges — that’s what the rest of the bill is about — but this section would cover all threats of litigation.
The proposal is clearly an unconstitutional content-based restriction on freedom of speech to government officials, and on the right to petition the government for redress of grievances. Petitions need not be just “please be so kind as,” but may also include “or else we’ll petition another branch of government — the courts — to vindicate our rights.” And neither the Free Speech Clause or Petition Clause excludes speech that’s annoying or said “in an offensively repetitious manner.” Narrowly crafted restrictions on certain manners of communications, such as calls to people’s homes after the person has said “stop calling,” or calls that are so frequent that they tie up phone lines, may be constitutional, but the bill is not at all limited to that; it would potentially include, for instance, several e-mails sent over the span of weeks, if they “annoy” or are seen as being “offensively repetitious.”
Fortunately, Senator Randy McNally asked the Tennessee Attorney General’s office for an opinion on the bill (including another provision that I’m not discussing here), and the opinion is “no no no” (some paragraph breaks added):
This criminal offense is facially unconstitutional as violative of the First Amendment of the United States Constitution and the right to freedom of speech under Article I, Section 19, of the Tennessee Constitution. In contrast to the prohibitions upheld in the general criminal harassment statute, see Tenn. Code Ann. § 39-17-308, the offense created by Section 7 is a content-based restriction on speech involving matters of public concern, namely a person advising a local government official that he or she will consider initiating legal action to halt or cease a particular local government policy or action.
Regulations based upon the content of speech are presumptively invalid. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382 (1982). Content-based restrictions on speech are subject to analysis under the strict-scrutiny test, which requires that a law advances a compelling state interest and is narrowly tailored to achieve that interest. See, e.g., id.; State v. Smoky Mountain Secrets, Inc., 937 S.W.2d 905, 911 (Tenn. 1996); Bemis Pentecostal Church v. State, 731 S.W.2d 897, 903 (Tenn. 1987).
There is no compelling state interest in a local governmental entity or local public servant being free from receiving written or electronic communications regarding a matter of public interest that includes a threat of initiating legal action and that may “alarm or annoy the local government unit or local public servant” as provided in Section 7 of SB965. See Coates v. City of Cincinnati, 402 U.S. 611, 615 (1971) (holding unconstitutional Cincinnati ordinance that made it unlawful for three or more persons to assemble on any public sidewalk and conduct themselves in a manner “annoying” to persons passing by, with the United States Supreme Court explaining in part that the “First and Fourteenth Amendments do not permit a State to make criminal the exercise of the right of assembly because its exercise may be ‘annoying’ to some people”).
Section 7, as amended, is also constitutionally invalid under federal due process standards as being “void for vagueness” because this provision fails to adequately define its prohibitions (such as what comprises “an offensively repetitious manner” and when the person should know “that it will alarm or annoy the local government unit or local public servant” in the context of ““threatening” litigation) and what communication constitutes a violation. As the United States Supreme Court has observed:
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined …. First, … laws [must] give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly …. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.
Grayned v. City of Rockford, 408 U.S. 104, 108-10 (1972). See also City of Chicago v. Morales, 527 U.S. 41, 56 (1999); Coates v. City of Cincinnati, 402 U.S. at 613-15. As this provision criminalizes speech that involves a matter of public concern, the more stringent standard for specificity applies because the vagueness may chill constitutionally protected speech. See Davis-Kidd Booksellers, Inc. v. McWhether, 866 S.W.2d 520, 531-33 (Tenn. 1993); contrast State v. Lakatos, 900 S.W.2d 699, 700-03 (Tenn. Crim. App. 1994) (upholding convictions for violating the telephone harassment statute, Tenn. Code Ann. 39-17-308(a)(2), rejecting free speech and vagueness challenges).
Let’s hope Tennessee legislators get the message, though I’m pretty appalled that they’ve even tried this.