Revenge Porn Ban Pushed by Arizona Legislators

The First Amendment crusaders who got a 2014 Arizona law banning revenge porn shut down aren’t endorsing the Legislature’s latest attempt to address the issue.

But Will Gona, policy director for the American Civil Liberties Union of Arizona, which sued the state over the law along with a coalition of booksellers, publishers, librarians, and photographers, said House Bill 2001 is a “significant improvement.”

Both HB 2001 and its predecessor, Arizona Revised Statute 13-1425, make it a felony to intentionally display, distribute, or publish nude photos or videos of someone without their consent. However, the new proposal makes two important clarifications, Gona said.

First, it specifies that the publisher or distributor must have malicious intent.

Second, he said, HB 2001 requires that the person photographed must have a “reasonable expectation of privacy.”

“This is important,” Gona said. “It protects a journalist, for example, for being prosecuted for publishing photos exposing how the U.S. military kept and tortured prisoners at Abu Ghraib [the prison in Iraq].”

HB 2001 also protects people’s First Amendment right to record public events. People can no longer be prosecuted for sharing photos that already have been posted online by the subject.

In its lawsuit challenging ARS 13-1425, the ACLU argued that although the law was only intended to prevent people from harassing ex-lovers by posting steamy, privately shared photos online, it was written so broadly that it would also criminalize journalists for covering the news, booksellers from distributing historic images, and artists for publishing anthologies of their own work.

About half the states have enacted laws that criminalize the unauthorized distribution of sexually explicit images of another person, according to the National Conference of State Legislatures. Unlike ARS 13-1425, though, most require prosecutors to prove that the publisher intended to embarrass, harass, or frighten the subject.  

A federal court permanently ordered Arizona to abandon enforcement of ARS 13-1425.

The law’s author, state Representative J.D. Mesnard (R-Chandler), introduced a revised version in 2015. The House passed it on the last night of the legislative session. But, by that time, the Senate already had wrapped things up for the year so, like many other bills, it died.

This year, legislators, arguing that victims of revenge porn have no recourse, are making the revenge porn ban a priority. HB 2001 was the first bill to pass the House Wednesday and, if it makes it through the Senate, it may be the first to be written into law.

Despite the improvements, Gona said the ACLU is taking a "neutral" position on HB 2001.

"The big concern going forward will be the enforcement of the law," he said. "It will be important to see whether prosecutors are truly using this to go after people with malicious intent."

Mesnard did not respond to an interview request.