Tennessee law on online images under constitutional review by state’s attorney general

Steven Nelson Associate Editor
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Tennessee made headlines last week with news about a new law that will introduce criminal penalties for posting online images that “frighten, intimidate or cause emotional distress.”

Now the law, passed by both houses of the state’s legislature and signed by Republican Gov. Bill Haslam, is under review by the state’s attorney general to ensure that it would not violate citizens’ First Amendment rights.

The primary sponsor of the legislation, state Democratic Rep. Charles Curtiss, told The Daily Caller Thursday that, “We have heard the concerns.”

Curtiss informed TheDC, “To ensure that it does only apply as intended, we have asked for an attorney general opinion on the matter.”

The attorney general’s office will presumably offer an opinion before the law is scheduled to take effect on July 1.

“The bill was drawn by our attorneys to only apply to very limited circumstances of severe cases of cyberbullying in which the local District Attorney would have to initiate, not an individual as some have suggested,” Curtiss noted. “The bill was vetted through the committee process and amended before being overwhelmingly passed in a bi-partisan vote.”

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Civil libertarians have expressed outrage at the law. Legal blogger Eugene Volokh described several situations where constitutionally-protected free speech could be criminalized, including the posting of embarrassing photos on social networking sites, and the printing of cartoons that feature political or religious subjects.

“Nothing in the law requires that the picture be of the ‘victim,’ only that it be distressing to the ‘victim,'” Volokh wrote, explaining that the law could be broadly misused.

Rick Hollow, who serves as general counsel for the Tennessee Press Association, told Knoxville CBS affiliate WVLT that the law “can infringe upon exchange of legitimate information.”

Hollow said, “We don’t know how this thing is going to be enforced, we don’t know if it will be challenged.” Critics have expressed fear that the law could create a chilling effect on free speech online.

Julian Sanchez of the Cato Institute told Ars Technica that the law included “a lower standard than the federal Electronic Communications Privacy Act requires” for accessing personal electronic communications. Sanchez cited a Fourth Amendment case on emails, and said that “there’s no good reason to think a private message on a social network site is any different.”

Greg Lukianoff, the president of the Foundation for Individual Rights in Education, said that “such a law would be almost comically unconstitutional.”

If the law takes effect, violators could be sentenced to a fine of up to $2,500 and one year in jail.