The State of Tennessee has actually done the impossible – jerks have been outlawed in Tennessee.  Not only are jerks outlawed, but now you can actually do hard time as a felon for being a jerk.  How has Tennessee accomplished such a mighty feat, you ask?  By outlawing and criminalizing freedom of speech and expression in the electronic world.

The new law (HB0300), which goes into effect on July 1, states that anyone who,

“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 any method described in subdivision (a)(1), without legitimate purpose.”

The law covers any form of electronic communication, including internet, telephone, text messaging, and faxes.  The data transmitted could be anything from sound, video, pictures, or images.

Any communication in Tennessee could be construed as criminal if it is communicated:

“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 As the result of the communication, the person is frightened, intimidated or emotionally distressed.”

Thus, you are a criminal jerk if you communicate with someone in a way that offends or emotionally distresses them.  Even more shocking is that only four legislators in the entire legislature voted against this draconian measure:  Sen. Mike Bell, Rep. Scotty Campbell, Rep. Joey Hensley, and Rep. Mark Pody.  Has the Tennessee General Assembly lost its mind?

The First Amendment to the U.S. Constitution states:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

As the First Amendment states “Congress shall make no law” and places no restrictions on the state legislatures, the new Tennessee law is constitutional under the U.S. Constitution.  But just because something is constitutional under the U.S. Constitution doesn’t make it a good idea.  We need to look to the Tennessee Constitution for guidance on this asinine law.

In the Tennessee Constitution, in the Declaration of Rights, Article 1, Section 19 states:

“That the printing press shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. But in prosecutions for the publication of papers investigating the official conduct of officers, or men in public capacity, the truth thereof may be given in evidence; and in all indictments for libel, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other criminal cases.”

Clearly the Tennessee Constitution’s Declaration of Rights upholds and supports the right of every Tennessean to speak freely and publish their opinions.  It doesn’t even make a distinction between journalists and non-journalists.  In this era of the Internet with citizen journalists reporting on blogs and alternative media, the need for the freedom to express oneself has never been greater.  This is no less true in Tennessee.

The Tennessee law does make note of publishing offensive or emotionally distressing information “without legitimate purpose.”  So who gets to decide what is or is not a “legitimate purpose?”  The criteria of offense and emotional distress are completely subjective, so too is the concept of a legitimate purpose.  All of these concepts are a moving target and there are different thresholds for each concept for every individual.  Further, how can you decide someone’s intent, or whether they could reasonably have known that a particular communication would be found offensive?  Once again, the state legislature has given us another moving target.  Is the Tennessee General Assembly going to set up a “Bureau of Pure Souls” who will make these determinations?

This new law also sets up a slippery slope.  Let’s follow it to its logical conclusion.  If written or electronically published words or images can be cause for someone to go to jail, what about the spoken word?  Let’s put people in jail for telling stupid jokes.  What if I put a sign for a political candidate in my yard that offends someone?  Should I be arrested for that?  How about wearing a t-shirt with a slogan that someone considers offensive?  Maybe I will get arrested for putting up Christmas lights and a Nativity scene in my yard because it offends my non-Christian neighbor?

Even better, what if one or more of our state legislators, or perhaps the governor, makes a huge mistake and constituents post the information on Facebook and other online media to get the word out?  I certainly imagine that would cause our legislators some “emotional distress.”  Will citizens be prosecuted for pointing out the truth about the shenanigans that go in Nashville or Washington, DC just because it causes politicians emotional distress?  This is the slippery slope on which our legislators and governor in Nashville have put us.

Seriously, where will this nonsense stop?  Let’s face reality here.  Being offended is part of life.  In the Declaration of Independence our Founders noted that “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  The Founders never said anything about a right to never be offended or emotionally distressed.  In the spirit of our Founders, this abomination on our rights as Tennesseans cannot be allowed to stand.  After all, jerks have rights too.

Lesley Swann

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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