Legal experts are warning that a Tennessee bill signed into law earlier this month could subject news organizations to criminal prosecutions if they publish crime scene photographs, biting political cartoons or anything else that might upset people.
The law’s sponsor said the concerns about criminalizing free speech are overblown, as the law is an effort to update the state’s harassment statute to punish perpetrators who target their victims using electronic communications.
But First Amendment and media law attorneys in the state said that the law's vague language and potentially broad reach might be unconstitutional and expose news media to prosecutions under the statute.
The law, which will take effect July 1, broadens the definition of what constitutes criminal harassment to include transmitting or displaying an image that would “frighten, intimidate or cause emotional distress” to a victim when there is "a reasonable expectation that the image will be viewed by the victim." The previous version of the law applied solely to communications with another person.
The revised law exempts the publication of offensive images for “legitimate purposes,” but attorneys said it’s not entirely clear what the exemption would cover.
The bill’s chief sponsor, Rep. Charles Curtiss, D-Sparta, said the law would not punish media that publish offensive but newsworthy images because a prosecutor would have to prove that the images were targeted toward a particular victim.
“We’re talking about a misdemeanor for when somebody is intending to target an individual,” Curtiss said. “We’re not talking about putting a sock in someone’s mouth so that they can’t say anything.”
But ambiguities in the law could lead to either the state punishing media or the media self-censoring out of fear of being prosecuted, said Rick Hollow, general counsel for the Tennessee Press Association.
“Because this statute imposes penalties, people may be disinclined to publish what would be otherwise newsworthy, potentially valuable material,” Hollow said.
The law overlooks numerous court decisions that have upheld the publication of newsworthy material over the objections of individuals offended by the content, Hollow said.
“Generally our courts have been inclined to the view that there may be some consequences of publication of newsworthy material that some people find unpopular or personally discomforting,” he said. “But our courts have still said that the rights of citizens to be informed are preeminent.”
Both Hollow and David Hudson, a legal scholar with the Freedom Forum's First Amendment Center in Nashville, said the vague language could make it hard for individuals to know whether the law applies to their speech, which would violate the First Amendment.
“They say if there’s a legitimate purpose, you don’t have to worry,” Hollow said. “Well, yes you do because I don’t believe the statute in its language defines what those words mean.”
The law potentially violates the First Amendment for another reason, both attorneys said. Because the law's prohibitions potentially include lawful, constitutionally protected speech, there is an argument that the law is overbroad.
Despite the First Amendment concerns raised by Hudson and Hollow, Curtiss said that the bill was vetted by lawyers in Tennessee and Washington, D.C., who suggested changes that were ultimately adopted to avoid any constitutional issues.
“If you are a reporter, you’re not directing your work to harass somebody,” he said. “I don’t think that’s a reasonable interpretation of the law.”