Tennessee Bans Freedom of Speech

by Aaron M. Kelly
 

If you haven't heard about it, you probably don't read American newspapers: Tennessee's legislature has amended its laws to ban causing people to become "emotionally distressed" from images posted online.

The new law, which comes into effect on July 1, 2011, will make a criminal out of anyone who, "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 any method described in subdivision (a)(1), without legitimate purpose."

The methods in the subdivision (a)(1) that is referred to include telephone, writing, or electronic communication, including text messaging, fax messages, e-mail, and Internet service.

In addition to other triggering clauses, such as making the communication with malicious intent, the communication or display of image can trigger the offence if done:

"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

As the result of the communication, the person is frightened, intimidated or emotionally distressed."

Interestingly, the "communicates with another person" provision already existed, so Tennesseans have been living with what seems to be a blatantly unconstitutional law for awhile now. What the new law does is to also make publishing pictures which disturb people an offence. To be clear, the law does not require that an accused even directly contact the offended individual. It describes the offended party as the "victim," but makes it an offence to communicate with another "person" in a way that might offend that "victim." Clearly, even communicating with third parties without a legitimate purpose can result in a conviction.

What is markedly absent from the law is what exactly constitutes a "legitimate purpose." This means that as long as the elements of the offence are made out, a case can be brought against someone for posting an image which disturbs someone else, and the accused will be forced to argue that they met whatever the vague standard of a "legitimate purpose" happens to be.

Here are some situations which, if the court does not find they have a "legitimate purpose," would lead to someone being convicted of a crime in the State of Tennessee:

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