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ACLU to sue over ‘offensive images’ ban

Jeff Woods of the Nashville City Paper reports:

The Tennessee ACLU said Tuesday it will sue to overturn the state’s new cyberbullying law as a violation of free-speech protections.

Bloggers and other commentators have harshly criticized the law, which takes effect Friday, because it makes it a crime to post on the Internet any image that causes “emotional distress” to anyone.

“This new law creates a chilling effect on expressive political, artistic and otherwise lawful speech and also turns political activists, artists and others into criminals,” ACLU-Tennessee Executive Director Hedy Weinberg said. “In addition, anyone with an online presence, such as social media users, becomes vulnerable.”

The ACLU said it was “responding to numerous requests for assistance and after a thorough legal analysis.”

The law’s sponsor, Rep. Charles Curtiss, D-Sparta, has insisted it contains sufficient safeguards to prevent unreasonable prosecutions. The law is aimed at combating Internet harassment.

The spokesperson for the TN ACLU calls the law “blatantly unconstitutional.” My favorite description of the law is “comically unconstitutional,” which is what Greg Lukianoff called it last week.

I think the ACLU has taken a position on which most reasonable people can agree. While the intent of the law may have been to protect people from being “cyberbullied,” the practical application of the law could virtually extend to any manner of “offensive” online posts. Who decides what’s offensive? A judge? A victim?

It’s like when Supreme Court Justice Potter Stewart attempted to define offensive speech in Jacobellis v. Ohio (1964) – in this case, pornography. Justice Stewart writes:

I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

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