The Problems with Arizona’s Revenge Porn Statute

flagcon300This is one of those regretful situations where I get to say, “I told you so.” Back in December, I appeared on Politics Unplugged on KTVK 3TV and debated Arizona Representative JD Mesnard (R, District 17). Rep. Mesnard stated that he was sponsoring a bill that would protect Arizonans from revenge porn.

I explained to Rep. Mesnard he could not just ignore the First Amendment and what he was proposing would likely violate the First Amendment. Rep. Mesnard and the Arizona Legislature proved me wrong and did just that. The legislature completely ignored the First Amendment and drafted an unconstitutionally broad revenge porn bill which was signed into law by the governor.

The non-legal definition of “revenge porn” is sexually explicit material that is generally posted online, without the consent of the person depicted, with the intent of embarrassing, harassing, or causing the person distress. One common scenario: You send a nude picture of yourself to a lover, then you break up, then they post the nude picture of you online, in a final act of spite.

§13-1425, Ariz. Rev. Stat. states:

Unlawful distribution of images; state of nudity; classification; definitions

A. It is unlawful 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.

B. This section does not apply to any of the following:

1. Lawful and common practices of law enforcement, reporting unlawful activity, or when permitted or required by law or rule in legal proceedings.

2. Lawful and common practices of medical treatment.

3. Images involving voluntary exposure in a public or commercial setting.

4. An interactive computer service, as defined in 47 United States Code section 230(f)(2), or an information service, as defined in 47 United States Code section 153, with regard to content provided by another person.

C. A violation of this section is a class 5 felony, except that a violation of this section is a class 4 felony if the depicted person is recognizable.

D. For the purposes of this section, “state of nudity” and “specific sexual activities” have the same meanings prescribed in section 11-811.

It is now a felony in Arizona to display or distribute a photo or video of another person in a state of nudity or engaged in sexual conduct if the person in the image has not consented to the disclosure. This sounds good to politicians eager to tell their constituents they are “tough on crime”, but there are some important pieces missing.

The important missing pieces led the American Civil Liberties Union to file a lawsuit against the Arizona Attorney General and all the county attorneys. The case, Antigone Books v. Horne, was filed in the U.S. District Court on September 23, 2014. In their suit, the ACLU lays out ten scenarios that would be punishable by up to 3 years and 9 months in prison under Arizona law:

  • A college professor in Arizona, giving a lecture on the history of the Vietnam War, projects on a screen the iconic Pulitzer Prize-winning photograph, “Napalm Girl,” which shows a girl, unclothed, running in horror from her village.
  • A newspaper and magazine vendor in Arizona offers to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib.
  • An educator in Arizona uses images, taken from the Internet, of breast-feeding mothers, in an education program for pregnant women.
  • A bookseller in Arizona offers for sale the books, Edward Weston: 125 Photographs (Ammo Books 2011) or Imogen Cunningham: On the Body (Bulfinch 1998), each of which contains nude images.
  • A librarian in Arizona includes, in the library’s collection, the book Robert Mapplethorpe and the Classical Tradition: Photographs and Mannerist Prints (Guggenheim Museum Publications 2004), which contains nude images.
  • A library in Arizona provides computers with Internet access to its patrons and, because no filters could effectively prevent this result, the library patrons are able to access nude or sexual images.
  • A bookseller or publisher, based outside of Arizona, offers for sale to retailers or consumers within Arizona, or displays to such retailers or consumers, books containing nude but non-obscene images.
  • Any person in Arizona, having bought one of these books, newspapers, or magazines, or borrowed it from a library, either in Arizona or out-of-state, shows a restricted image to a friend in Arizona.
  • A mother in Arizona shares with her sister, in the privacy of her home, a nude image of her infant child.
    A sexual assault victim in Arizona shows a photograph of the naked assaulter to her mother.

Intent is an important part of a statute that keeps prosecutors from overstepping the bounds of common sense and the constitution. The Arizona revenge porn statute does not require a prosecutor to prove the intent to harm in order to gain a conviction. Without requiring some form of intent to harm, something as innocuous as posting a photo of baby’s first bath on Facebook is a felony.

Other states have managed to protect their citizens from revenge porn while being more careful to also not violate their citizens’ First Amendment rights. California’s revenge porn statute requires, “the intent to cause serious emotional distress, and the depicted person suffers serious emotional distress.”

In fact, according to the National Conference of State Legislatures, thirteen states have passed revenge porn laws. Of those thirteen, only four, Arizona, Georgia, Idaho, and Wisconsin, do not have an intent to harm requirement. The other states require that the person posting the media have an “intent to cause serious emotional distress” or some other similar language. Adding an intent to harm requirement to the Arizona statute would eliminate many, but not all, of the Arizona statute’s First Amendment problems.

The Arizona statute should also have exceptions for newsworthiness and public interest. Anthony Weiner’s penis is a great example of revenge porn that is also shrouded in newsworthiness and political speech. The issue is not Anthony Weiner’s penis, but his veracity, and the photos prove that when he told the public he had stopped his online affairs, the photos proved he clearly had not and had lied.

It is unfortunate the Arizona politicians who drafted this law ignored the First Amendment. Because it is unconstitutionally overbroad, this law does not protect Arizona’s citizens from revenge porn, and will cost the state time and money to fight the ACLU’s challenge.

A version of this article originally appeared in The Record Reporter.

 

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