Civil Liberties

Tennessee Probably Doesn't Want You Watching Human Centipede II Either


As Jesse Walker noted in today's morning links, Tennessee recently passed a law banning the transmission or display of images that might, under a "reasonable expectation," "frighten, intimidate or cause emotional distress" to anyone who comes across it. It's not just Internet communications either. The law defines "electronic communications service" as "any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature  transmitted  in whole or in part by a wire, radio, electromagnetic,  photoelectronic  or photooptical system." Violators face up to a year in jail or a $2,500 fine. 

If you think this sounds illegal, you're not alone: Eugene Volokh looks at the details and says it's "pretty clearly unconstitutional." He lists four potential actions, all fairly common in online communication, that would likely be criminalized under the law:

  • 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."
  • 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."
  • 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."
  • And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.

Judging by the text of the statute, it seems entirely possible that lots of mainstream fare could be potentially illegal under the law too: Think of particularly violent TV shows or raunchy talk radio shows, all of which could at least theoretically be said to frighten or cause distress to some individuals. With a standard this vague, the path toward official censorship of just about any electronic broadcast medium is more than clear. Needless to say, I'm fairly certain that transmitting a copy of the recently banned-in-Britain Human Centipede II would also be illegal under the law.