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Monday, August 1, 2011

The Civil Right Not To Be Offended

(With thanks to Damien, not the attorney Damien, for the video and the article below)

Please watch the video. Then read the article below the fold.

Confirmation of what the above fellow is saying, the article, dated June 7, 2011:
Post A Picture That 'Causes Emotional Distress' And You Could Face Jailtime In Tennessee

from the outlawing-jerks? dept

Over the last few years, we've seen a troubling trend in various state laws which attempt to come up with ways to outlaw being a jerk online. Many of these are based on politicians and/or the public taking an emotional reaction to something bad happening after some does something online that angered someone else. Of course, while it would be nice if jerks would go away or jerky behavior would cease, that's just not realistic. The real issue is: how can it be constitutional to outlaw being a jerk? In many cases it raises serious First Amendment issues, among other things. The latest to jump into this game is the state of Tennessee...[wanting] to put people in jail for "causing emotional distress" to others.

The specific law outlaws posting a photo online that causes "emotional distress" to someone and has no "legitimate purpose." While the law does state that there needs to be "malicious intent," it also includes a massive loophole, in that it says that you can still be liable if the person "reasonably should know" that the actions would "frighten, intimidate or cause emotional distress." Eugene Volokh notes all sorts of problems with this:
1. If you’re posting a picture of someone in an embarrassing situation — not at all limited to, say, sexually themed pictures or illegally taken pictures — you’re likely a criminal unless the prosecutor, judge, or jury concludes that you had a “legitimate purpose.”

2. Likewise, if you post an image intended to distress some religious, political, ethnic, racial, etc. group, you too can be sent to jail if governments decisionmaker thinks your purpose wasn’t “legitimate.” Nothing in the law requires that the picture be of the “victim,” only that it be distressing to the “victim.”

3. The same is true even if you didn’t intend to distress those people, but reasonably should have known that the material — say, pictures of Mohammed, or blasphemous jokes about Jesus Christ, or harsh cartoon insults of some political group — would “cause emotional distress to a similarly situated person of reasonable sensibilities.”

4. And of course the same would apply if a newspaper or TV station posts embarrassing pictures or blasphemous images on its site.
Honestly, any time you have a law where the liability is based on how some other person feels, you've got a pretty serious problem. You can criminalize actions, but making someone a criminal because someone else feels "emotional distress" seems like a huge stretch.
For a moment, forget the blasphemy issue.

Think about this:
[I]f you post an image intended to distress some...political...group, you too can be sent to jail...
Does that statement apply to political parties? Is it really possible that posting an image offensive to political parties could land someone in jail?

Whatever happened to the tradition of Thomas Nast? In addition to creating images satirizing politics, he created the image of Uncle Sam as well as the Republican Party elephant and the Democratic Party donkey.

Read more about Nast's notable works HERE and his accomplishments HERE, particularly Nast's contribution to the downfall of Boss Tweed, the leader of the corrupt Tammany Hall.

Furthermore, wouldn't Nast's John Chinaman be considered offensive in today's climate of political correctness? See that image below:

Should we now ban the online image of John Chinaman?

With regard to codifying the civil right not to be offended, what about printed words that offend a given group? Should those words, if offensive to a particular group, be forbidden and even prosecutable?

THIS is but one of many examples indicating that being offended is in the eye of the beholder. Obviously, the teacher's being offended was a personal and political choice.

If we codify a civil right not to be offended, we will reach the point that everything we say, write, or post has to be weighed against whether or not somebody else might be offended. At that point, communication will cease.

Reminder about Everybody Draw Mohammed Day: "Molly Norris, Artist Behind 'Everybody Draw Mohammed Day' Cartoon, Goes Into Hiding"


  1. Couldn't we Conservatives use this law to our advantage?

    Liberals post things all the time that offend me. If people can be arrested for offending people, let's turn Ducky in!

    Then, I suppose, under this new law, he could, in turn, have me arrested for this comment.

    And so on.

    In posted a similar blog piece a couple of years ago, except I was referring to the Constitutional right to be stupid. Which also protects Ducky and his Liberal buddies.

  2. Addendum:

    is the first of several posts I made about the right to be stupid.

  3. I don't live in Tennessee. I avoid southern cesspools. Now go turn me in.

    It would be better if there were a post pointing to the actual bill rather than a video of some cracker's (turn me in) interpretation.

    Now go be little children and get ready for "draw Muhammad Day".

  4. Duck,
    HERE is a link to Tennessee House Bill 300. I didn't post it because it doesn't make sense unless one plows through other portions of the Tennessee Code.

    As for your not living in Tennessee, that's your choice. Why should I turn you in? If you're prejudiced against the South, that's your personal choice. I'm sure that the residents of Tennessee are actually ecstatic that you don't live there.

    As for me, I won't live in Taxachusetts. It's a cesspool of its own.

    FYI....My blog, my property. I'll post what I choose.

  5. Mark,
    Liberals post things all the time that offend me.


    I'll check out the link that you posted.

  6. This is a stunner. I cannot imagine what in the world we are coming to. We are now in hyperdrive in destroying America and our freedoms.

  7. Hmmm! I think first that government might have to buy a place say the size of Australia. They are gong to need a very big penal colony

  8. It's frightening when anyone's oversensitivity or subjective feelings can veto public discourse and expression of opinion.

  9. Haw Haw Haw Ducky told a funny, he lives in Boston and said "southern cesspools".

  10. A cesspool is just the place for turds like Ducky. Since he already lives in one, he's all set.

    However, this Tennessee law cannot possibly be constitutional. I just had a discussion with leftist cartoonist Steve Benson who REALLY offended me with his cartoon of Palin with a gun for a mouth. That kind of cartoon would not be legal under such a law as this. Neither would a lot of my own, which I draw specifically for the purpose of offending liberals and Muslims.

    I will link.

  11. Always On Watch,

    I'm glad you're getting a large number of people commenting on this story. It means a lot of people care about the issue.

  12. Jason Pappas,

    I agree with you. People in America and the west in General really need to grow bigger spines. Being offended is not that big of a deal. Its not even possible to make sure no one is offended. Plus in order for a society to remain free, it be willing to offend certain groups. Nazis, Communists, Islamic Fascists, Christian Dominionists, to some degree will all be offended by a genuinely free society.

  13. Mark,

    To tell the truth I'm not sure who is more responsible for this new anti offense law. The secular left, or the religious right. Unfortunately it seems to have had bipartisan support, so I don't know which party is to blame the most, and there are cases when both the right and the left have supported censorship, just because its something they don't like.

  14. Linked with a special Public Service Message from the State of Tennessee:


  15. This. is. absurd. Why does it exist? Because there are too many sob stories about what offensive things online do to other people.

    This may be an odd example, but a new movie on ABC family called Cyberbully shows why this sort of law exists. Basically girl gets harrassed- gets depressd-everyone blames lack of online laws. Ignoring the fact the girl was an idiot for a) listening in the first place, b) not telling someone and c) going back to the website

    Point is, its basically a law allowing people to blame others for being an idiot- going and staying on an offensive site, and allowing others to get to you- something every teacher/parent preaches against.

    Now they are justifing it. Besides the fact that the law breaks the first amendement- which it does- it also breaks a lot of common sense. Feel bad for those in Tenessee, this souns like something that could go very sour very fast. It takes away from the whole 'justice is blind' part of the law. I assume we'll see WHY that phrase exists in the first place...


  16. There's no way this will pass constitutional muster.

    BTW, this is exactly what Muslims want to put into an international treaty.

    I disgusts me that Americans passed such a law. They must be constitutionally-ignorant progressives.

  17. This comment has been removed by the author.

  18. Silverfiddle,

    Even worse, its also possible that they don't care about the constitution. Its pretty clear what the first amendment has to say on the matter. In addition, I wouldn't put it past at least some elements in the religious right to support something like this. I can also remember a few instances where Christian fundamentalists tried to get the goverment to censor something just because they didn't like it.

  19. It's all about control kids. Whoever is in power can selectively use these laws to silence critics.

  20. As a blogger I often post material intended to offend people to some degree. My commentary on the legal industry frequently goes in that direction, including images to support my pieces. If it's a crime I belong in jail.

    The bottom line is this is a sad move in the direction of objective standards of conduct being replaced by subjective standards. It represents a decline in the rule of law, and that is a sad direction to go.

  21. Matt,

    Yes, but ironically those same laws could be used to silence them if they ever loose power. Censorship works both ways. That's just one of the reasons why we should support the first amendment, regardless of which party is in power.

  22. I wonder how it'll go over when PISS CHRIST's exhibit comes to Tennessee.......

    Draw Mohammed...on a matchbook? That's kind of dumb but sure effective in bringing this situation to the fore.

    This is totally unconstitutional; we're such a bunch of WIMPS..nobody can take the slightest ribbing anymore. what the heck happened to America?

  23. Wildstar!

    Haven't seen you here for a while and wonderful to see you commenting here again. Hope that you're surviving this miserably hot summer.

    I'm glad that you shared that perspective on cyberbullying and cited that movie. I haven't seen that movie.

    allowing people to blame others for being an idiot- going and staying on an offensive site, and allowing others to get to you

    Point well taken.

    No way can the legal system protect people from their own idiocy in its limitless manifestations. "You can't fix stupid," as you've heard me say many times.

    This. is. absurd.

    We seem to be living in the Age of Absurdity.

  24. Country Thinker,

    You've summed up the crux of the matter:

    The bottom line is this is a sad move in the direction of objective standards of conduct being replaced by subjective standards.

    Wish that I'd said that!

    Please visit again. Your input is always welcome.

  25. AOW: It's my honor to be here! If you have a post in the future that touches on this area, feel free to use the statement as-is or in modified form. The inspiration for it was legal reform advocate Philip K. Howard, and his book "Life Without Lawyers" is a critical read for modern times.

  26. I think quite a few people were asleep at the wheel for this law to get thru. I hope other states don't follow suite. As everyone knows, someone will be offended at something that's pictured or written. That's no excuse for trying to change the Constitution.

  27. like your posts, i will follow you

  28. Yet another civil right? Free cell phones in Pennsylvania -- for only certain people, that is.


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