Tennessee Bans Internet Images That ’cause emotional distress’

Posted: June 10, 2011 in Nitegator

A new Tennessee law makes it a crime to “transmit or display an image” online that is likely to “frighten, intimidate or cause emotional distress” to someone who sees it. Violations can get you almost a year in jail time or up to $2500 in fines. The ban on distressing images, which was signed by Gov. Bill Haslam last week, is also an update to existing law. 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. If the communciation lacked a “legitimate purpose,” the sender faced jail time.

39-17-308. Harassment.
(a)  A person commits an offense who intentionally:
(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 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.
(b)  (1)  A person convicted of a criminal offense commits an offense if, while incarcerated, on pre-trial diversion, probation, community correction or parole, the person intentionally communicates in person with the victim of the person’s crime if the communication is:
(A)  Anonymous or threatening or made in an offensively repetitious manner or at hours known to be inconvenient to the victim;
(B)  Made for no legitimate purpose; and
(C)  Made knowing that it will alarm or annoy the victim.
(2)  If the victim of the person’s offense died as the result of the offense, the provisions of this subsection (b) shall apply to the deceased victim’s next-of-kin.
(c)  A violation of subsection (a) is a Class A misdemeanor. A violation of subsection (b) is a Class E felony.
Acts 1989, ch. 591, § 1; 1998, ch. 1035, §§ 1, 2; 2001, ch. 26, § 1; 2008, ch. 973, § 1; 2009, ch. 347, § 1.

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 law now applies not just to one-to-one communication, but to people’s posting images on their own Facebook pages, on their Web sites, and in other places if (1) they are acting “without legitimate purpose,” (2) they cause emotional distress, and (3) they intend to cause emotional distress or know or reasonably should know that their action will cause emotional distress to a similarly situated person of reasonable sensibilities. So,
1. 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.”
2. 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.”
3. 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.”
4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Internet speech is received in every community of the nation. As a result, “the ‘community standards’ criterion as applied to a nationwide audience will be judged by the standards of the community most likely to be offended by the message.” Reno v. ACLU, 521 U.S. 844 (1997); see also Ashcroft v. ACLU, 535 U.S. 564, 587 (2002) (O’Connor, J., concurring) (“Adoption of a national standard is necessary in my view for any reasonable regulation of Internet obscenity.”); Id. at 589, 122 S.Ct. at 1715 (Breyer, J., concurring) (“I believe that Congress intended the statutory word ‘community’ to refer to the Nation’s adult community taken as a whole, not to geographically separate local areas.”).

In Nitke v. Ashcroft, 413 F. Supp. 2d 262 (S.D.N.Y. 2005), Barbara Nitke, a New York photographer who works with erotic subject matter, challenged the constitutionality of being hauled into court in the least tolerant jurisdiction, arguing that this could chill protected speech throughout the Internet. The district court ruled that the plaintiffs had not provided sufficient evidence of harm to maintain a facial challenge to the criminal provisions, but left open the possibility of a case-by-case analysis.

In United States v. Kilbride, 584 F.3d 1240 (9th Cir. 2009), the defendant argued that because they “cannot control which geographic community their works will enter,” a geographic community standard for Internet works “unavoidably subjects such works to the standards of the least tolerant community in the country.” The Ninth Circuit agreed, holding that “a national community standard must be applied in regulating obscene speech on the Internet, including obscenity disseminated via email. … To avoid the need to examine the serious First Amendment problem that would otherwise exist, we construe obscenity as regulated by §§ 1462 and 1465 as defined by reference to a national community standard when disseminated via the internet.” Nevertheless, the court found it to be harmless error, and the conviction was upheld.

However, in U.S. v. Little, 2010 WL 357933 (11th Cir. 2010), the Eleventh Circuit “declined to follow the reasoning of Kilbride in this Circuit,” and held that the District Court did not err in using a local community standard.

Click Links For More Postings:
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  1. This really is a marvelous write-up. Thanks for bothering to summarize all of this out for all of us. It really is a great help!

  2. Brandt says:

    You can see my response to this new law as a Tennessee artist on my artist’s blog at http://#############.html with my portrait of our Governor Bill Haslam and his ravishing wife.

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