Sunday, July 31, 2011

Damien sent this over:

I thought you might like to know about this. It looks like the Tennessee legislature is now trying to ax the first amendment, to stop people from hurting other people's feelings. Talk about PC fascism.

According to a person who goes by the youtube user name, Losoyo, Tennessee has just passed a law banning offensive speech over the net that would basically make Everybody Draw Muhammad day, illegal in that state.

This is so clearly unconstitutional its absurd. Yet even if it wasn't unconstitutional, it would be absurd. Free speech is worthless without the right to offend. I hope the supreme court throws this thing out. But in the meantime, it seriously needs to be fought.

I would have had a hard time believing him, except for the fact that he backs his claim up. He also had this link in his video description, to a news article that backs up his story.

Post A Picture That 'Causes Emotional Distress' And You Could Face Jailtime In Tennessee

from the outlawing-jerks? dept

Over the last few years, we've seen a troubling trend in various state laws which attempt to come up with ways to outlaw being a jerk online. Many of these are based on politicians and/or the public taking an emotional reaction to something bad happening after some does something online that angered someone else. Of course, while it would be nice if jerks would go away or jerky behavior would cease, that's just not realistic. The real issue is: how can it be constitutional to outlaw being a jerk? In many cases it raises serious First Amendment issues, among other things. The latest to jump into this game is the state of Tennessee, which apparently decided that just throwing people in jail for sharing music subscription passwords wasn't enough: now they want to put people in jail for "causing emotional distress" to others.

The specific law outlaws posting a photo online that causes "emotional distress" to someone and has no "legitimate purpose." While the law does state that there needs to be "malicious intent," it also includes a massive loophole, in that it says that you can still be liable if the person "reasonably should know" that the actions would "frighten, intimidate or cause emotional distress." Eugene Volokh notes all sorts of problems with this:

  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.
Honestly, any time you have a law where the liability is based on how some other person feels, you've got a pretty serious problem. You can criminalize actions, but making someone a criminal because someone else feels "emotional distress" seems like a huge stretch.


Alexander Münch said...

Epaminondas said...

I feel a SCOTUS case not even developing. The first fed appeals court this hits, invalidates it by single judge vacating it

Always On Watch said...

I don't have that much confidence in courts.

Damien said...

Always On Watch,

If you are right, than we better be prepared to fight this thing tooth and nail regardless of what any court says including the supreme court. I don't think any of us want hate speech laws, do we?

Ciccio said...

This is a perfectly reasonable adaption of shariah law. Under shariah law publishing anything a person does not want to be published is considered defamation. If for example I say a certain sheik whom I have seen fucking goats is a goat fucker he can sue me for defamation because it is injurious to the feelings of his sheep. And who said shariah will never come to the states.