When Does Internet Speech Become A Crime?

July 1, 2011
Jody Barrett

When Does A Facebook Post Become A Crime?

Is it a crime to post a picture on Facebook or Twitter?  What about forwarding a text message or email with what some would consider a funny image attached?  Beginning July 1, 2011, according to Governor Bill Haslam and the Tennessee General Assembly, hitting the send button could be a Class A misdemeanor punishable by up to eleven months and twenty-nine days in jail and a fine up to $2,500 dollars.

The law at issue, codified as T.C.A. § 39-17-308, was amended this spring by House Bill 300 sponsored by Representative Charles Curtiss, a Democrat from Sparta.  The existing law against harassment already declares it illegal in Tennessee to make harassing or threatening phone calls, or to send similar emails or text messages.  The key language in the amendment adds “images” to the list of unlawful communications in Tennessee.

Under the amended law it is now a crime to “communicate with or about another person or transmit or display an “image” by various forms of electronic media “without a legitimate purpose.”  The term “image” is defined as “…a visual depiction, video clip or photograph of another person.”  If the image transmitted is intended to “frighten, intimidate, or cause emotional distress”, or if the sender knows or “reasonably should know” that the image is likely to cause such a reaction, it violates the law.

Interestingly, as the law is written the victim of this crime is not necessarily limited to the individual depicted in the image or the intended recipient.  You do not have to communicate “with” the person or transmit the image directly to the victim.  Rather, by merely transmitting an image “about another person” that may cause “emotional distress” you may subject yourself to criminal prosecution.

In this day and age of viral emails and YouTube videos, every human being on the planet is a potential victim of this crime, regardless of whether you intended for them to receive it or not.  And this is not limited to images that we would ordinarily consider offensive, such as racially charged images, political or religious images, or pornography.  If a court simply finds that you “should have known” that an image you posted would be upsetting to somebody somewhere in the cyber universe, you could be sentenced to time in jail.

No doubt the legislature had its sights set on cyber-bullying when House Bill 300 was drafted, proposed and passed through committee.  Since January 2010 state lawmakers across the country have taken numerous steps to curb the problem of cyber-bullying among teens and young adults.  That is when Phoebe Prince, a fifteen year girl from South Hadley, Massachusetts, committed suicide after suffering months of bullying from school classmates, including numerous instances of intimidating and harmful comments and images posted to her Facebook page and spread throughout the student body via electronic communications.

The question that continues to be debated among state lawmakers and legal scholars alike is whether or not the Tennessee law runs afoul of the rights to free speech as protected by the 1st Amendment of the U.S. Constitution.  In an interview with Fox News Memphis, State Senator Brian Kelsey, a Republican from Germantown, said “the second part of the bill has some 1st Amendment problems with it.”  Senator Kelsey commented, “It says if you display an image that could cause emotional distress to someone, that all of a sudden now it could be a crime.”

Eugene Volokh, constitutional law professor at UCLA School of Law and author of The Volokh Conspiracy website, posted on his blog that in his opinion the law is “pretty clearly unconstitutional.”  Volokh points out that a wide variety of images, including “pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group” could “cause emotional distress to a similarly situated person of reasonable sensibilities.”  Volokh states, “Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if a government decision maker thinks your purpose wasn’t legitimate.”

With more than 400 million registered users claimed by Facebook, along with the hundreds of millions of others viewing Twitter feeds and YouTube videos, it is easy to understand why some have expressed concern over the extremely broad language contained in Tennessee’s new law.  Certainly, protecting our children from cyber-bullies and the emotional distress that can be caused from these kinds of attacks is a worthy and noble goal.  However, we also must protect our children from the potential for government prosecution for simply posting pictures from their summer pool party on their Facebook page or uploading a video from the skating rink on YouTube.  There is a balance that must be struck between freedom and protection.  Sometimes that balance proves to be quite elusive.

– Jody Barrett is a partner with the law firm of Ramsey, Thornton & Barrett, PLC.

The foregoing article is not intended as, nor shall be used, relied upon, or otherwise construed as legal advice or an attorney-client relationship. You are advised to seek independent legal advice from an attorney licensed in the State of Tennessee.

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