Can posting a shocking image online land you in jail? This month Tennessee amended an anti-harassment law to make it a crime to “communicate with another person or transmit or display an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim without legitimate purpose.” The law applies to any communications including posts to social networks or personal web pages which are essentially public forums. It covers not only posts “with the malicious intent to frighten, intimidate or cause emotional distress” but also to anything that the poster “knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities.” But the law is so broad that covers not only specific cases of harassment but also anything anyone might find objectionable online.
To prove a crime has been committed simply requires that someone viewing a post claim they were “frightened, intimidated or emotionally distressed” by it. The negative implications for the First Amendment are obvious; one person’s legitimate political expression may be another person’s emotional hot button. And since a poster can break the law without even having malicious intent there is no practical limit to the type of “crimes” that could be committed. Whether a person makes a statement with a cartoon of Mohammed or pictures of the remains of aborted babies, someone is going to be offended. Some might find it repulsive, but it should not be a crime.