Over the past week, you might have seen this headline from Gizmodo floating around your social networks: “Tennessee Just Made Offensive Online Pictures Illegal.” Yes, 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 it turns out these comments are off base.
Yes, legal experts say HB 300, now signed into law, is probably unconstitutional. But even if it’s not, the law is not a ban on offensive Internet content, and it’s not likely to affect you unless you are a creepy cyberstalker.
HB 300 is an amendment to the state’s definition of criminal harassment, which already made it illegal to threaten or harass someone via phone calls or other electronic means. In the amended section (changes noted in italics), the law now applies to anyone who:
"(1) 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;
(2) Places one (1) or more telephone calls anonymously, or at an hour or hours known to be inconvenient to the victim, or in an offensively repetitious manner, or without a legitimate purpose of communication, and by this action knowingly annoys or alarms the recipient;
(3) Communicates by telephone to another that a relative or other person has been injured, killed or is ill when the communication is known to be false; or
(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 any method described in subdivision (a)(1), 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 now you have what was basically a broad anti-harassment law becoming even more so. The Reporters’ Committee for Freedom of the Press raised some concerns on its website, quoting Rick Hollow, general counsel for the Tennessee Press Association: “Because this statute imposes penalties, people may be disinclined to publish what would be otherwise newsworthy, potentially valuable material,” Hollow said.
In an e-mail, University of Tennessee law Professor Glenn Reynolds says he thinks the law is “probably overbroad and thus unconstitutional—though whether it’s sufficiently overbroad to be unconstitutional in general, and not just in some applications isn’t open-and-shut, but it probably is.”
But, Reynolds adds, “Cyberstalking is a real problem, and it’s often hard to get authorities to do much even when it’s by phone or e-mail. This statute isn’t—as some have portrayed it as being—some sort of crazy ban on all offensive images. It’s a perfectly reasonable technological update that just isn’t very well drafted.”
Of course, anyone filing a complaint because he or she is offended by a random Internet image will have to go through the whole criminal process. Somehow, it seems unlikely that law enforcement authorities across the state will suddenly devote their already stretched resources to pursuing spurious claims of harassment from citizens offended by their local newspaper’s website.
In any case, the newly changed law seems most likely to end up being challenged in court before we see any of the worst-case scenarios dreamed up by bloggers.