Arizona's Proposed "Revenge Porn" Law Demands Written Consent

ARIZONA—Proposed legislation that would make it a class 5 felony to share a nude photo of someone without their written consent has been approved unanimously by the Arizona House Judiciary Committee, despite concerns by some members of the committee that HB 2515 is vague and may still contain some First Amendment problems. According to the Phoenix New Times, one specific question is "who exactly would be charged with a crime for sharing such images." The bill's sponsor, GOP Representative J.D. Mesnard, said he is willing to tweak the language to mollify concerns, saying, "I am a strong supporter of the First Amendment; I don't think this is what our founding fathers had in mind when they put the First Amendment together—obviously they didn't conceive of smartphones, among many other things. That being said, I'm happy to work with whomever it is, to address whatever concerns, to make sure this is criminalizing those who are the perpetrators—those who are the bad guys that we want to stop." Mesnard's flexibility on the subject may in part be the result of an evaluation before the Judiciary Committee hearing by U of A law professor Derek Bambauer that his bill is "almost certainly unconstitutional" on First Amendment grounds. The current text of HB 2515 reads: A.  It is unlawful 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. B.  This section does not apply to any of the following: 1.  Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings. 2.  Medical treatment. 3.  Images involving voluntary exposure in a public or commercial setting. 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" has the same meaning prescribed in section 11‑811. Without substantial changes, lawmakers fear that the wrong people will be prosecuted under the law. "Democratic Representative Martin Quezada said the bill doesn't appear to protect people who weren't the first to share the images," reported the alternative weekly. "Representative Lupe Contreras, also a Democrat, wondered if this would result in a bunch of kids ending up with felonies on their records." According to the New Times article, Professor Bambauer pointed out that another possible constitutional issue might occur if a newspaper published a picture of Monica Lewinsky and President Bill Clinton in a sex act, which would be a matter of public concern, and protected by the First Amendment.