Lawmakers in Tennessee may have run afoul of the Constitution in passing a recent law. The law makes it illegal to “transmit or display an image” online if it is likely to “frighten, intimidate or cause emotional distress” to someone — anyone — who views it.
“Tennessee law already made it a crime to make phone calls, send emails, or otherwise communicate directly with someone in a manner the sender ‘reasonably should know’ would ‘cause emotional distress’ to the recipient,” Ars Technica reported.
“The new legislation adds images to the list of communications that can trigger criminal liability. But for image postings, the ‘emotionally distressed’ individual need not be the intended recipient. Anyone who sees the image is a potential victim. If a court decides you ‘should have known’ that an image you posted would be upsetting to someone who sees it, you could face months in prison and thousands of dollars in fines,” the article read.
Constitutional scholar Eugene Volokh recently discussed the law in a blog post, saying it was “pretty clearly unconstitutional.”
“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,’” Volokh wrote.
“Nothing in the law requires that the picture be of the ‘victim,’ only that it be distressing to the ‘victim’… And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.”
The full text of the law is available here.