The “revenge porn” law, formally titled the Unlawful Distribution of Images statute, was signed by former Governor Jan Brewer last year, and made it a felony “to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.”
Those who wrote it wanted to prevent nonconsensual pornography—particularly scenarios in which an angry person maliciously spreads nude images of an ex-lover, hence the term “revenge porn.” But a group of Arizona booksellers, publishing companies, newspapers, librarians, and photographers (including the Voice Media Group, New Times’ parent company) sued the state Attorney General’s Office, arguing that the language of Arizona’s law was “an unconstitutionally overbroad and viewpoint-based restriction on protected speech.”
Though the act may have been well-meaning and intended to prevent “disclosures motivated by revenge,” the plaintiffs state in the initial complaint, “the law is not limited to pornography or obscene images [and] in fact, the motive of the person making the disclosure is irrelevant.”
Arizona’s revenge porn law would make it a felony to publish certain educational materials about breastfeeding, or newsworthy photographs like those taken at the Abu Ghraib prison. It “could have led to the conviction of someone posting a nude photo with no intent to harm the person depicted,” notes a statement by the ACLU, which served as co-counsel for the plaintiffs.
The suit gives other examples of situations that became needlessly criminalized under the law: “a mother in Arizona [who] shares with her sister, in the privacy of her home, a nude image of her infant child,” or a college professor who shows his students “the iconic Pulitzer Prize-winning photograph, ‘Napalm Girl,’ which shows a girl, unclothed, running in horror from her village,’” as part of a lecture on the Vietnam War.
Arizona is certainly not alone in passing revenge porn laws, but the wording of the statutes varies. “More than half of the states have passed some form of revenge porn law, and certainly not all of them are unconstitutional” Lee Rowland, senior staff attorney for the ACLU, tells New Times. “But because they tend to regulate free speech, we at the ACLU look at them closely.”
The group found Arizona’s lack of specificity to be particularly worrisome — “it unfortunately criminalized certain acts that are obviously protected” by the First Amendment, Rowland adds. “Details matter, particularly when it comes to the legislature’s drafting of laws that protect free speech.”
In an email, Ryan Anderson from the AG's office explains that his office agreed to settle the case after “stakeholders raised legitimate concerns regarding the constitutionality of portions of the statute... Our office opted to not enforce a statute that would certainly result in further litigation. Recognizing portions of the law were unenforceable in their current form, our office stipulated that the temporary lack of enforcement of this law should become permanent until its fixed. We hope that the legislature will amend the statute in the 2016 session and address the constitutional concerns.”
Rowland agrees that these laws are important, and thinks there’s a good chance Arizona Representative J.D. Mesnard, who sponsored the original bill in the 2014 legislative session, will reintroduce a revised version of the statute next year. Mesnard worked with the ACLU this year to draft a substitute bill, but it died on the Senate floor late in the session.
David Horowitz, Executive Director of Media Coalition (which also worked on behalf of the plaintiffs) told New Times last year that laws in other states “[typically include] additional elements that focused more on malicious invasions of privacy.” Those laws also tend to address issues like a person’s reasonable expectation of privacy, and make notable exceptions for artistic, newsworthy, or historic images.
In a written statement last Friday, Horowitz calls Judge Bolton’s recent decision “a complete victory for publishers, booksellers, librarians, photographers, and others against an unconstitutional law. Now they won't have to worry about being charged with a felony for offering newsworthy and artistic images.”
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