Wed
Jun 8 2011
09:48 pm

It seems that Guv Haslam has just signed into law another embarrassment for Tennessee. You can now be jailed and/or fined for sending/posting image files that are likely to "frighten, intimidate or cause emotional distress".

CathyMcCaughan's picture

Pictures are threatening?

Pics of Westboro "church" members cause me emotional distress.Photos of Illiterate teepee signs frighten me. I am intimidated by pictures of all white, male only political gatherings. Get to remedying those offensive images please Governor.

EricLykins's picture

Interestingly enough, before

Interestingly enough, before "Senate moved to substitute and conform to HB0300" the three Senators to vote against companion bill SB0487 by Ketron in the Judiciary committee were Barnes, Beavers, and Campfield

The final votes in both chambers were nearly unanimously for it.

Considering the "pretty clearly unconstitutional" nature of the law as written, I think the legislature should review what other states have done to explicitly include electronic forms of communication within more traditional stalking or harassment laws (it's not that hard) and try again before somebody's ass gets whupped with legitimate purpose.


Photo credit: Metropulse 9/29/10

reform4's picture

Er...um....

.. wouldn't this imply that the photos used by most pro-life groups would now be illegal?

The...irony...it....BURNS!!!!

Min's picture

Except...

...I don't think they're the people behind this amendment. I think this is just another example of people trying to criminalize speech, because they have no ideas for addressing the issues of both violence and general assholery in modern society.

If it applies to pro-life groups, it will also apply to any site dedicated to preventing animal cruelty or to sponsoring starving children in Africa, because those images are intended to provoke every bit as much as abortion images are.

JaHu's picture

How would images of war and

How would images of war and terrorism shown in magazines, newspapers and TV news channels, fit into this law? Aren't these images used as tactics to "frighten, intimidate and cause emotional distress".

Rachel's picture

Seems like this law hinges on

Seems like this law hinges on "intent." I see a bunch of muddled court cases in our future.

That is, if this law isn't thrown out soon as unconstitutional, which it seems to me it clearly is.

EricLykins's picture

and it's a criminal law, so

and it's a criminal law, so don't expect to get rich from any civil suits.

CathyMcCaughan's picture

who will be the first charged?

This law reads like a threat. Blog, tweet, fb, flickr, knoxviews, etc. anything they don't like and they will have you arrested.

agrarianurbanite's picture

and who is going to be

and who is going to be monitor? or is it complaint driven? I don't understand. This law applies to all TN residents? How about if you are driving through Tn and you heading from KY to GA, and you post a picture of something distressing...say the HUGE white metal cross on I-75 south...can you get busted?

Please help me. I'm pretty simple minded. I thought the white wing was all for FREEDOM! and the guvment getting OUT of our shit?

EricLykins's picture

re: white wing

again, this was a nearly unanimous attempt to update harassment laws into the digital age. It was a piss poor attempt, and if we're going to call out names, phone your representatives. The only Democrat to not vote for it was David Kernell's (Palin email hacker) dad.

Senators voting aye were: Barnes, Beavers, Berke, Burks, Campfield, Crowe, Faulk, Finney L, Ford, Gresham, Harper, Haynes, Henry, Herron, Johnson, Kelsey, Ketron, Marrero, McNally, Norris, Overbey, Roberts, Southerland, Stewart, Tate, Tracy, Watson, Yager, Mr. Speaker Ramsey -- 29.
Senators voting no were: Bell -- 1.

Representatives voting aye were: Alexander, Armstrong, Bass, Brooks H, Brooks K, Brown, Butt, Camper, Carr, Casada, Cobb, Coley, Cooper, Dean, DeBerry J, DeBerry L, Dennis, Dunn, Elam, Eldridge, Evans, Faison, Favors, Fitzhugh, Floyd, Ford, Forgety, Gilmore, Gotto, Halford, Hardaway, Harmon, Harrison, Haynes, Hill, Holt, Hurley, Johnson C, Johnson P, Jones, Keisling, Lollar, Lundberg, Maggart, Marsh, Matheny, Matlock, McCormick, McDaniel, McDonald, McManus, Miller D, Miller L, Montgomery, Moore, Naifeh, Niceley, Odom, Parkinson, Pitts, Powers, Pruitt, Ragan, Ramsey, Rich, Richardson, Roach, Sanderson, Sargent, Sexton, Shaw, Shepard, Shipley, Sontany, Sparks, Stewart, Swann, Tidwell, Tindell, Todd, Towns, Turner J, Turner M, Watson, Weaver, White, Williams K, Williams R, Windle, Wirgau, Womick, Madam Speaker Harwell -- 92.
Representatives voting no were: Campbell, Hensley, Pody -- 3.
Representatives present and not voting were: Kernell -- 1.

Pam Strickland's picture

My senator is Stacey. Do you

My senator is Stacey. Do you think he will listen?

agrarianurbanite's picture

I don't see it...

I have read and re-read the description on harassment... I don't see where someone can be

jailed and/or fined for sending/posting image files that are likely to "frighten, intimidate or cause emotional distress".

I see that a person who

Threatens, by telephone, in writing or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, 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;

can get in trouble.

The section that states

cause emotional distress

is under section four, which states

Communicates with another person by any method described in subdivision (a)(1), (by telephone, in writing or by electronic communication, including, but not limited to, text messaging, facsimile transmissions, electronic mail or Internet services) without legitimate purpose

The original article is misrepresents the updated Tn law (and so does the linked blog). Having worked for years as a victim's advocate in both domestic violence and rape, the updated law helps protect victims.

The updated law says nothing about posting pic on your FB account. The Volokh Conspiracy is reading WAY to far into this...and, believe me, I am into conspiracy, but this is over the top.

EricLykins's picture

, Section 39-17-308(a)(4), is

, Section 39-17-308(a)(4), is amended by
deleting the language "Communicates with another person" and by substituting instead the language "Communicates with or about another person or transmits or displays an image."

I didn't see it in the original links here , arstechnica or Volokh either, which is why I looked it up.

EricLykins's picture

Mashable (and a bunch of

Mashable (and a bunch of other sites)has picked up on Volokh's hasty(?) interpretation and run with it. The vague clause in question is:
(__) As used in this section:
(1) “Image” includes, but is not limited to, a visual depiction, video clip or photograph of another person;

For it to be a criminal offense (not that it should be, which should be the issue here) against me, the image has to be of me. For example, an image of Jesus engaged in, say, a homosexual act is not going to land the poster of the image in jail for cyberharassment of Jesus. It's not going to land the poster of the image in jail for causing someone emotional distress, unless of course, that someone is the other person in the image.

As I understand it, this is true:

“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.’

These are not:

“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.”

That seems to be the intent (the merit of which is another matter which I've commented on below), but maybe it is too vague. Volokh is, after all, a law professor, and I don't think any of us discussing this so far are lawyers. Reuters says "Some legal scholars believe the new statute won't pass a First Amendment review by courts," but they don't quote "some" or why, just Volokh again. You would think the world's largest international multimedia news agency could find at least one more lawyer to support or counteract his opinion.

Is he cyberbullying our state legislature? Is there a lawyer in the house?

Somebody's picture

Whether coming from the right

Whether coming from the right or the left, I am always a little wary of the "outage of the day" that goes 'round the 'net like a grass fire. Granted, sometimes stupid stuff actually happens, but when the 'outrage' just doesn't make any sense at all, I like to go looking for the rest of the story. For some reason, some folks check their critical thinking at the door if the stupidity is associated with the political side they don't like.

For me, the idea of passing a law that generically says you can't put pictures online that somebody might possibly find frightening or offensive is so stupid and so patently unconstitutional, my first thought is that something here is being misinterpreted, regardless of who sponsored the bill. Agrarianurbanite seems to have nailed it, in contextualizing this with sensible legal protections for people who are victims of targeted harassment. That's way different than what's been presented as the outrage du jour.

The polarized politics of the day has too many people crying "wolf." This is counterproductive. When stupid stuff really does happen, pointing it out becomes useless, because it just ends up blending in with the rest of the partisan rancor.

WhitesCreek's picture

Who gets to define the word "legitimate"?

Hack legislation that can be used as a weapon does not seem to me to be the "outrage of the day", as you term it.

And pointing out stupid legislation is exactly what we alert citizens are supposed to do.

EricLykins's picture

Like most states with a

Like most states with a cyberbullying statute, New Jersey’s focuses on primary and high school education, found in the part of the legal code devoted to education, not criminal acts.

Do we really want to give Tennessee prosecutors authority to bring criminal charges against people for violations of terms of use agreements?

Who draws the lines?

A good prosecutor could indict a ham sandwich.

EricLykins's picture

Ahhhhh

Scouring the interwebs for any reporting on this matter that wasn't a copy/paste hack job with a scary headline (yes, I've done plenty of those here, I know) ... deep in the comments of Mashable's facebook post, Do you think posting images -- even disturbing or offensive ones -- online should be a crime?: New State Law Makes Posting Distressing Images a Crime I found a link to a piece of actual journalism from right here at home:

influential bloggers and tweeters across the country are yet again making fun of Tennessee. The problem is, very few of them seem to have bothered to read the law.

Take that Gizmodo post, which says "an online image of anything that offends anyone is now illegal" and likely to land you in a Tennessee jail. Or Ars Technica, which writes, "for image postings, the 'emotionally distressed' individual need not be the intended recipient. Anyone who sees the image is a potential victim." Sounds like a reason to panic, right? But these comments are off base.

Deep breaths, everybody. Deeeeep breaths.

Ok, now that you're not panicking, let's start over.

Thank you, Cari Wade Gervin and Metropulse.

Somebody's picture

See, this is what I was

See, this is what I was saying. Take a breather. The law could be overbroad, but not in the way it's been hyped up to be. Haslam isn't stomping on the first amendment by signing this. Ridiculous images will continue to appear online unimpeded by this law. Its potential over-reach exists within a very narrow legal bandwidth of targeted harassment. So narrow that the conditions needed to generate a test case to challenge the law will probably be difficult to come by.

EricLykins's picture

The first clue that it wasn't

The first clue that it wasn't a complete curb-stomping of civil rights was that Governor Ramsey and Commandant Campfield aren't bragging about it, but a test case shouldn't be that hard to come by:

Over half of adolescents and teens have been bullied online, and about the same number have engaged in cyber bullying.
More than 1 in 3 young people have experienced cyberthreats online.
Over 25 percent of adolescents and teens have been bullied repeatedly through their cell phones or the Internet.
1 in 10 adolescents or teens have had embarrassing or damaging pictures taken of themselves without their permission, often using cell phone cameras
About 1 in 5 teens have posted or sent sexually suggestive or nude pictures of themselves to others
Girls are somewhat more likely than boys to be involved in cyber bullying

The problem is real, but this approach is simply punishing the symptoms of our failures (that begin before kindergarten) to educate and socialize ourselves.

SpanglerArt's picture

Congradulations

Governor Bill Haslam and the TN state Government spit in the face of the first Amendment.
Welcome to Tennessee. Please reset your clock to the 1800s.

redmondkr's picture

In one ear and right out his

In one ear and right out his a . . other ear.

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