Free Markets, Free People

slippery slope


Tennessee heads down the proverbial slippery slope

When you see someplace begin to try to legislate feelings and intentions, well you’re looking at a place that is headed toward more and more authoritarian government.   Tennessee recently passed a law which make it a crime to post images which cause “emotional distress” without a “legitimate purpose”.

One has no idea what constitutes “emotional distress” or how one decides if the “purpose” is “legitimate”, but it certainly suggests someone will and that someone will be the state.

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

When you see language like you see in this law, the extent to which it can be abused and used to, ironically, “frighten, intimidate or emotionally distress” someone supposedly in violation of it are evident.

Eugene Volokh finds it to be “clearly” unconstitutional.  Here are his comments:

  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 decision maker 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.

This is clearly the end-game of this pernicious trend that supports this pseudo-right we have to not be offended.  Obviously, you have no such right.  But when the state gets into this sort of territory, it is not headed toward the slippery slope, it’s bobsledding down the slope.  

This is clearly a law designed to stifle what any person of “reasonable sensibilities” would call free speech.  What most who understand the right emphasize is that its strength is in the fact that we don’t penalize those who say things we don’t like, but protect their right to do so even while we denounce what they say.

This is another of those freedoms that is constantly under assault by the authoritarians among us who, for whatever reason, think it is their job to control every aspect of our lives, to include what we can and can’t say.   So, as in the case of Tennessee, they criminalized behavior which might “frighten, intimidate or emotionally disturb”.

Really – I can think of any number of movies which do precisely that for any number of people – is Tennessee going to ban them?  Books?  Political writing (that is intended to “frighten, intimidate or emotionally disturb” readers?   If you’re from another state and you have a bumper sticker that “frightens, intimidates or emotionally distresses” someone (say an abortion sticker or one that denounces Islamists) am I subject to Tennessee’s liberty destroying law?

And how does this law coexist with our right, codified in the First Amendment, that claims we can speak freely without considering any of those concerns?

Busybody lawmakers with an authoritarian streak make bad law and shred our basic rights.  I’m sure they’d explain it as an attempt to ensure others aren’t offended.  I, on the other hand, find that sort of nonsense un-American and unconstitutional.  Repeal the law, Tennessee.  Rejoin the rest of the union and quit being so afraid of free speech.  Most of all, grow up and quit worrying about others  being offended.  That’s their problem – not the state’s.

~McQ

Twitter: @McQandO

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