A law against laws?

Tuesday June 14, 2011

Martin Cullip protests against a new law passed in Tennessee that regulates ‘offensive’ images on the Internet.

In less restrictive times, the tongue-in-cheek refrain “there should be a law against it” was commonly used in exasperation at the actions of others. While language and colloquialisms change for many reasons, perhaps this expression is no longer so prevalent because nowadays there probably is a law against it – whatever the ‘it’ may be. Or, if there isn’t, the fear is that the mere act of uttering those words will set politicians scurrying to pass restrictive legislation.

The latest example is a new Tennessee law deeming it a crime to ‘transmit or display an image’ online that is likely to ‘frighten, intimidate or cause emotional distress’ to anyone who may see it. The offence is punishable by up to a year in prison or a $2,500 fine. What has prompted much discussion across the US about this law is that the distressed ‘victim’ doesn’t necessarily need to be the intended recipient; that merely stumbling across the image on a website or social networking site is sufficient to violate the law if the viewer finds it ‘offensive’.

Critics claim that, as such, it is unconstitutional as it flies in the face of US freedom of expression statutes. But this doesn’t appear to have dissuaded Tennessee lawmakers one iota. By the terms of the new legislation, images of Mohammed, Damien Hirst artworks, or even pictures of breast-feeding mums could potentially trigger prosecution as the publisher ‘should have known’, as the law puts it, that they could cause offence to someone, somewhere. Additionally, powers have been granted to law enforcement agencies to access communications and content on social networking sites – justified as evidence-gathering for a criminal prosecution – thereby raising concerns from a civil liberties viewpoint.

In 2009, the UK passed similarly hyperactive legislation which criminalised possession of what was labelled ‘extreme pornography’ of a sado-masochistic nature, even if produced by – and featuring – consenting adults to cater for their own curious tastes.

In the internet age, it would seem that governments are increasingly flexing their muscles and taking steps to curtail what they see as too much freedom in online interaction. In light of this, legislatures worldwide will no doubt be eagerly watching developments in Tennessee with a view to passing similarly restrictive and illiberal ordnances of their own.

In every jurisdiction there is already a plethora of laws against violence against the person, harassment, and bullying. So it is difficult to see how measures such as the Tennessee law are supposed to help. So in practice it is nothing but a dangerous move towards a prescribed ‘right not to be offended’ by the actions of others, or the criminalisation of any activity which others may find distasteful.

We’ve already witnessed an all-out assault on the spoken word. Comedians now think twice before telling mother-in-law jokes despite there being scant evidence of any real offence being taken. With the spotlight now moving onto imagery which others may not particularly like, we are entering a world in which the enjoyment of the majority is being claustrophobically restricted by the sensitivities of a tiny minority of thin-skinned individuals. So much for the evolutionary concept of survival of the fittest – instead, the many are being forced into dancing to the tune of the most readily startled in society.

The problem, as usual, is that no value is placed on personal liberties, and no obligation placed on those who are easily-offended to simply ‘switch off’ or take responsibility to ensure they avoid material they dislike.

In the case of the Tennessee law, its very nature is deeply offensive to all those who value freedom and the enjoyment of life over and above the unreasonable demands of those who are averse to anything that they don’t wish to see. As such, it could be argued that just by drafting it, Tennessee politicians have violated their own solution to perceived offence.

Perhaps there should be a law against it.