June 21, 2011 | By Marcia Hofmann

Tennessee's Ban on Publishing Distressing Images: Let Us Count the Ways It's Unconstitutional

Summer is the season to crack down on the Internet — or so Tennessee seems to think.

First, the state made it a crime for people to share credentials for entertainment subscription services like Netflix and Rhapsody.

Now the governor has signed a law that says a person faces up to a year in jail (pdf) if he publishes an image that he reasonably should know will "frighten, intimidate or cause emotional distress" to a victim or "a similarly situated person of reasonable sensibilities" and doesn't have a "legitimate" reason for doing so. While the crime requires a reasonable likelihood that the image will be viewed by the victim, criminal penalties can kick in if the "victim" doesn't ever actually see it, but someone else finds it distressing.

The legislation — which goes into effect next week, on July 1 — will update a law already on the books that makes it illegal to send communications that the sender reasonably knows would frighten, intimidate, or cause distress to the recipient. As revised, the law will now make it a crime to publish an image on any Internet site or service if someone else finds it emotionally disturbing.

As law professor Eugene Volokh points out, this criminalizes a wide swath of expression protected by the First Amendment. It's next to impossible for a publisher to know whether an image might offend someone and therefore potentially violate the law, which will chill online expression. This ban will also give law enforcement a tool to selectively punish speech it doesn't like.

That's bad enough. But it doesn't stop there.

The new law also says that social networking services must disclose communications and images to the government if it shows a court specific and articulable facts that there are "reasonable grounds to believe that the contents of an electronic communication, or the records or other information sought, are relevant and material in an ongoing criminal investigation." This requirement contradicts the federal Electronic Communications Privacy Act, which requires law enforcement — including state and local law enforcement in Tennessee — to get a warrant before seizing stored communications that are less than six months old.

Even worse, Tennessee is in the Sixth Circuit, which held just a few months ago in United States v. Warshak that the government must have a probable cause warrant to seize and search messages stored by communications service providers. Which means that the new law violates the Fourth Amendment, too.

In short, Tennessee's ban on posting distressing images is unconstitutional in more ways than one, and we hope to see the courts strike it down at the first opportunity.

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