A new law was just passed in Tennessee that would make it illegal to post pictures online that would “cause emotional distress” (thanks to Friendly Atheist (1) for the tip, I somehow missed the original Ars Technica article). This law is utterly ridiculous and completely unconstitutional for rather obvious reasons, or so you would think anyways.
Before even discussing why the law is illegal (and it is an obvious first amendment violation), it’s important to note that the original law was meant to stop people who were harassing others via direct communications mediums, e.g. harassing phone calls, e-mails, etc. The legislature has made this very important change to also include non-direct communications mediums as well, i.e. mediums that people must seek out. There is a huge difference between these. Me calling someone up on the phone and telling them I’m going to kill them is a LOT different than drawing an image of Buddha snorting coke (2). They aren’t even remotely the same thing, but this law equates them. I also wonder why this law needs to exist…wouldn’t your normal harassment laws apply?
The law does contain a provision that allows offensive images to be shown as long as they are for a “legitimate purpose.” (3) This provision is wholly inadequate though. What constitutes a legitimate purposes vs an illegitimate purpose is subjective; it’s like asking (and in fact will literally be asking), what is art? What determines if the piece is for artistic purposes, and what isn’t? I fear it will turn into “well I don’t agree with this piece, so it isn’t art” on the part of politicians and judges. I especially fear that it could be used to censor works that are critical/blasphemous of Christianity, such as Jesus Cat, which one could argue isn’t art in the traditional sense.
I find it strange that this law specifically targets images and video. Is it OK to post offensive text, but posting the same thing in picture form is illegal? I have a theory: this law is a reaction to Everybody Draw Mohammed Day (6) and the videos of US citizens burning the Qur’an which resulted in the attack on a UN Embassy (7). This gets into the idea that religion is exempt from criticism, and that doing so is somehow an attack on the people of that religion. I could spend a lot of time discussing this topic, but we’ll save that for a later day. Suffice to say, the idea is patently ridiculous.
Even if we set aside all the reasons why this law is unconstitutional, it is unenforceable in almost all circumstances. It is plainly obvious that politicians do not understand the Internet. It is a truly global system. They can’t do anything about the 99.999% of offensive images that a) are not posted by someone in Tennessee and b) are not directed at someone in Tennessee. Hell, this blog post would probably be illegal in Tennessee, but they can’t do anything about it since I don’t live there. The Internet cannot be controlled and cannot be censored effectively. It’s time for politicians to realize this and learn how to work with the Internet, not against it.
(1) Mehta, Hemant. “No More Muhammad Images in Tennessee?” Friendly Atheist. 10th June, 2011. Available: http://friendlyatheist.com/2011/06/10/no-more-muhammad-images-in-tennessee/
(2) Carlson, Meghan. “Most Outrageous ‘South Park’ Moment: Buddha Snorts Coke.” BuddyTV. 15th April, 2011. Available: http://www.buddytv.com/articles/south-park/most-outrageous-south-park-mom-35915.aspx
(3) Lee, Timothy B. “Tenn. law bans posting images that “cause emotional distress”.” Ars Technica. 8th June, 2011. Available: http://arstechnica.com/tech-policy/news/2011/06/tenn-law-bans-posting-images-that-cause-emotional-distress.ars
(4) Fisher, Jason. “Everybody Draw Muhammad Day 2010.” Flickr. 19th May, 2010. Available: http://www.flickr.com/photos/36429133@N07/4622306709/
(5) Koradan. “demotivational poster JESUS CAT.” MotiFake. 2nd February, 2010. Available: http://www.motifake.com/jesus-cat-jesus-cat-demotivational-posters-88446.html
(6) “Everybody Draw Mohammed Day.” Wikipedia. Available: http://en.wikipedia.org/wiki/Everybody_Draw_Mohammed_Day
(7) “UN strongly condemns deadly attack against staff in Afghanistan.” UN News Centre. 1st April, 2011. Available: http://www.un.org/apps/news/story.asp?NewsID=37967&Cr=Afghan&Cr1