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"