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ACLU files federal lawsuit against Arizona’s ‘revenge porn’ law

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Tuesday, Sept. 23, 2014
By Lauren Loftus
Cronkite News

PHOENIX – An Arizona law that bans sharing naked sexts to embarrass an ex could also ban photographs of naked prisoners being tortured in Iraq’s Abu Ghraib prison, according to a lawsuit filed in federal court Tuesday.

The American Civil Liberties Union filed the suit on behalf of a coalition of media organizations including booksellers, publishers and photographers challenging Arizona’s so-called “revenge porn” statute.

“The consequences under Arizona law are extremely draconian,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy and Technology Project.

The law, which Gov. Jan Brewer signed in April, makes it illegal “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.”

Violators face a felony charge and up to two years in prison. The charge and penalties increase if the person pictured is recognizable.

Rowland said the law is overly broad, applying to all images of nudity, even those considered to be artistic or newsworthy.

“Revenge porn is exclusively a digital phenomenon, and this law applies to all images whether printed in a book or shared online,” she said.

Though the law may have been written to target revenge porn, or sexually explicit material shared online without consent to shame the pictured individual, Rowland said there is no requirement that the person pictured actually be harmed or even identifiable. That means, she said, that pictures of people taken without consent – such as the famous Associated Press photo of a naked girl burned by napalm during the Vietnam War – could be illegal.

David Horowitz, executive director of Media Coalition, which represents several plaintiffs including five private booksellers across Arizona, said similar laws passed in other states have been much more narrow in scope.

“Most of the states have been focused on the malicious invasion of privacy,” Horowitz said, noting that Arizona’s law only focuses on whether the picture in question was distributed without consent.

The result, he said, is a “significant chilling effect” on booksellers worried about prosecution for selling questionable material.

The lawsuit names Attorney General Tom Horne and county attorneys around Arizona. A spokeswoman for Horne said she wouldn’t be able to comment Tuesday.

Rep. J.D. Mesnard, R-Chandler, who sponsored the legislation behind the law, said he did consider writing an exception for items related to the public interest, such as artistic photography.

“The problem with it, is there’s no definition for public interest,” he said. “That makes things grayer.”

Mesnard said he also took into account the issue of intent – or whether the act of publishing the nude or explicit images was done for malicious reasons such as revenge – but intent is hard to prove.

But Sean Feeney, president of Bookmans Entertainment Exchange, one of the plaintiffs, said an outright ban could lead to a “banning-books situation.”

Bookmans primarily sells used books in its six stores in Tucson, Phoenix, Mesa and Flagstaff, so buyers evaluate inventory based on its desirability to consumers.

“We train them to be content-neutral,” Feeney said of his employees, meaning they aren’t supposed to take personal bias into account when deciding which books to buy. To Feeney, this law could muddle that process.

“Suddenly books that used to be totally legal … are now potentially criminal,” he said.

Fellow plaintiff Gayle Shanks, co-owner of Changing Hands Bookstore in Tempe and Phoenix, said she’s been selling photography books that include nude images for the 40 years she’s been in business.

But now, she said, “I could be convicted of a felony, just for having them on my shelves and selling them to people. One wonders when the Legislature passed this particular legislation why they didn’t just limit it to revenge porn and describe exactly what that is.”

Mesnard pointed to viewpoint discrimination as one reason. Under First Amendment protections, the government cannot discriminate against speakers for their views.

Joseph Russomanno, associate professor at the Walter Cronkite School of Journalism and Mass Communication at Arizona State University, said viewpoint discrimination is a legitimate concern.

“If you get too specific in a law, then it will be struck down,” he said, “but by the same token, if a law is too broad it can be struck down.”

While Russomanno gave credit to lawmakers for trying to do a “laudable thing” and prevent revenge porn, he said it’s nonetheless “very difficult to write a law that will pass constitutional tests.”

Meanwhile, Mesnard said he’s willing to revisit the law and “make it better” to address the issue of revenge porn, which he said can have devastating effects.

“But I’m not willing to throw out what I think will be a vital tool for cracking down on what I think is harmful behavior,” he said.