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Arizona Revenge-Porn Bill "Almost Certainly Unconstitutional," UA Law Professor Says

Arizona Revenge-Porn Bill "Almost Certainly Unconstitutional," UA Law Professor Says
Derek Gavey via Flickr

The Arizona bill that would criminalize publishing sexual images that were shared in confidence is "almost certainly unconstitutional," according to a University of Arizona law professor.

House Bill 2515, proposed by a bipartisan group of lawmakers, would make it illegal to "knowingly disclose, display, distribute, publish, advertise, or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person."

UA law professor Derek Bambauer says the bill has First Amendment problems.

See also:
-Arizona Lawmakers Look to Criminalize "Revenge Porn"

"It's an important problem, but there are a lot of bad solutions out there to it," Bambauer tells New Times. "HB 2515 is one of them - it's almost certainly unconstitutional."

Bambauer, who teaches classes on Internet law and intellectual property, pointed us to blog he's written on the subject. The post on this bill reads, in part:

This is the trouble with some of the draft legislation floating around out there that gets copied and pasted without the intervention of legal analysis. This bill is plainly unconstitutional - it offers no exception for matters of public concern or newsworthiness. Here's the hypo that shows why it's DOA: I have an image of Monica Lewinsky and President Bill Clinton engaged in a sex act. I publish it in the newspaper. Can I be prosecuted? Clearly not - it's a matter of public concern (the President is having an affair with an intern, a government employee), so the First Amendment blocks the prosecution.

The bill says criminal penalties (potential felonies) don't apply " when permitted or required by law or rule in legal proceedings," but Bambauer says that doesn't cut it.

" . . . [I]t puts the onus on courts to clean up the legislature's mess, and to sort out permitted from proscribed speech," he writes.

Bambauer's written extensively on the issue, and has proposed expanding copyright laws to protect "intimate media," instead of criminalizing it, like California's legislature has done.

There's an organization called the Cyber Civil Rights Initiative, which has pushed for laws criminalizing revenge porn to be passed in several states. The current proposal in Arizona, submitted by Republican Representative J.D. Mesnard, proposes making revenge-porn sharing a class-five felony -- the second-lowest level of felony in Arizona -- but a class-four felony "if the depicted person is recognizable."

The Arizona bill has received committee assignments, but no other action's been taken so far.

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Follow Matthew Hendley on Twitter at @MatthewHendley.


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