ACLU Sues Over Arizona's 'Vastly Overbroad' Revenge Porn Law

ARIZONA—Lawyers for the ACLU Foundations of Arizona filed suit today in federal court in Arizona challenging the constitutionality of H.B. 2515, the state's so-called "revenge porn" bill that was signed into law on March 13, 2014, and became effective on June 12. As AVN reported this February, the bill raised concerns from the moment it was introduced because of its provision making it a "class 5 felony to share a nude photo of someone without their written consent." At the time, the bill's sponsor, GOP Representative J.D. Mesnard, who claimed to be "a strong supporter of the First Amendment," said he would be open to tweaking the language of the bill so that it would no longer, as U of A law professor Derek Bambauer warned, remain vulnerable to court challenge for being "almost certainly unconstitutional." Needless to say, the changes, if made at all, were insufficient. Indeed, the first page of the Preliminary Statement contained in the complaint filed today includes a list of actions that under the law currently constitute felonies "punishable by up to three years and nine months in prison:" * 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. More specifically, the complaint states, "H.B. 2515 was enacted with the stated goal of combating “revenge porn,” a term popularly understood to describe conduct typified by a person knowingly and maliciously posting an identifiable, private image of an ex-lover online with the intent and effect of harming her reputation and damaging her personal and professional relationships. While the state has a legitimate interest in addressing the real harms of revenge porn, any such law must be narrowly tailored to address that problem. "The Act, however, is vastly overbroad in its reach," it continues. "It is not limited to disclosures motivated by revenge; in fact, the motive of the person making the disclosure is irrelevant under the law. Nor is the law limited to pornography or obscene images. And the Act is not limited to digital speech: It equally criminalizes posting another’s private photograph on a widely-accessed Internet site, showing a printed image to one friend, publishing a newsworthy picture in a textbook, and including a nude photographs in an art exhibition." It get better (worse). "The Act makes no distinction between images that cause harm to the person or persons pictured and those that do not," states the complaint. "Furthermore, the Act imposes criminal liability for the display of images where the person depicted is neither identified nor identifiable (but, as noted above, imposes more severe punishment if the person depicted is recognizable). "The Act makes no distinction between images in which the person or persons pictured have a reasonable expectation of privacy and those in which they do not," it adds. "For example, a person could be convicted of a felony for sharing a photograph that no reasonable person would consider private, such as a naked image self-published on a widely-accessible website, or an archival copy of Life magazine containing photos of naked victims of the Holocaust." The list of affronts to constitutional rights goes on and on. The bill also contains no exclusions for matters of public concern, such as historical photographs that contain nudity, or artistic images, and covers any intentional disclosure while requiring no "culpable mental state." The law also defines "nudity" expansively, covering "images of low cleavage or side or bottom views of the breasts even if the areola is fully and opaquely covered," and equally expansively, criminalizes "benign images," even potentially, "An image of a person placing a hand on a fully clothed buttock." The constitutional weaknesses in this law appear to be fatal, but time will tell if the court agrees. If it does not, the extremity of the law makes it all but certain that the plaintiffs will appeal. As it stands, they are asking the court to "Declare that the Act violates the First, Fifth, and Fourteenth Amendments and the Commerce Clause of the United States Constitution," and to "Preliminarily and permanently enjoin Defendants, their officers, agents, servants, employees, and attorneys, and those persons in active concert or participation with them from enforcing the Act." They are also asking for costs and attorneys' fees. The complaint can be accessed here. Language of H.B. 2515: 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 meaning prescribed in section 11-811. Definitions: “State of nudity” means any of the following: (a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola. (b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola. “Specific sexual activities” means any of the following: (a) Human genitals in a state of sexual stimulation or arousal. (b) Sex acts, normal or perverted, actual or simulated, including acts of human masturbation, sexual intercourse, oral copulation or sodomy. (c) Fondling or other erotic touching of the human genitals, pubic region, buttocks, anus or female breast. (d) Excretory functions as part of or in connection with any of the activities under subdivision (a), (b) or (c) of this paragraph.