Last week I wrote about the awful and patently unconstitutional proposed Tennessee law making it a crime to post mean, feelings-hurting pictures on the internet. I dropped a line to the bill's proponent, Rep. Charles Curtiss (whose name I misspelled throughout; my apologies). Since then, two things have happened:
1. I learned that, contrary to my careless impression, the law has actually passed, and
2. Rep. Curtiss sent me an email responding to my post, as follows:
We have heard the concerns. However, the bill was drawn by our attorneys to only apply to very limited circumstances of severe cases of cyberbullying in which the local District Attorney would have to initiatiate, not an individual as some have suggested. The bill was vetted through the committee process and amended before being overwhelmingly passed in a bi-partisan vote. To ensure that it does only apply as intended, we have asked for an attorney general opinion on the matter. We will keep you informed as to the outcome.
Kudos are due to Rep. Curtiss to responding to a citizen – and not even a citizen in his constituency — who expressed a concern (in rather rude terms) about the constitutionality of a law. Not many would respond at all, let alone response to a snarky asshole blogger taking shots from across the country.
But he's still an oathbreaker. His response (which, to be fair, is probably not intended for attorney consumption) is frankly ridiculous:
1. If their attorneys attempted to draw the bill narrowly to only apply to very limited cases of cyberbullying, then their attorneys suck. Period. Full stop. It doesn't take Eugene Volokh to point out its vagueness and overbreadth problems.
2. It is no comfort at all that the District Attorneys of Tennessee will exercise discretion about which cases to bring. That is, in fact, the opposite of comforting. It means that District Attorneys will be able to pick and choose whom to prosecute for violating a vague law based on their personal agreement or disagreement with the defendant's message. It is precisely the pernicious sort of discretion to censor that First Amendment caselaw prohibits.
3. The fact that the bill was "vetted" through committees and overwhelmingly passed does not magically render it constitutional. Rather, it calls into serious question whether Tennessee lawmakers as a body are faithful to their oaths to uphold the constitution — or capable as a body of grasping that oath.
4. Passing vague censorship laws and then narrowing them by attorney general opinion is no way to run a state.
Rep. Curtiss, and his ilk, are simply relying upon the public's willingness to engage in categorical thinking. He believes — probably correctly — that if he slaps a label like "cyberbullying" onto a law, the public will not inquire further. That's regrettable, and does not fulfill his oath to uphold the United States constitution.
Last 5 posts by Ken White
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