This year, seeking to combat “revenge porn,”
the Arizona legislature enacted a
law that makes it a felony to “disclose, display, distribute,
publish, advertise or offer” an image of a nude person who has not
consented to the disclosure. The offender need not be driven by a
malign motive, such as anger at an ex-girlfriend; nor must he cause
harm or intend to do so. It is enough that he “knows or should have
known that the depicted person has not consented to the
disclosure.” That makes him subject to a
presumptive sentence of two years in prison, which rises to two
years and six months “if the depicted person is recognizable.” What
could possibly go wrong?
To their credit, legislators did anticipate a few things. They
made exceptions for “lawful and common practices of law
enforcement,” “reporting unlawful activity,” disclosures “permitted
or required by law or rule in legal proceedings,” “lawful and
common practices of medical treatment,” and “images involving
voluntary exposure in a public or commercial setting.” But as the
American Civil Liberties Union points out in a
federal lawsuit filed today, that is hardly an exhaustive list
of the constitutionally protected speech that could be punished
under this law. Here are some more examples mentioned in the ACLU’s
complaint: selling or lending art books featuring photographic
nudes (especially if the subjects cannot verify consent because
they are dead); selling a magazine that includes pictures of
prisoners abused at the Abu Ghraib prison in Iraq; using images of
breast-feeding women copied from the Internet in an educational
program for expectant mothers; passing along the “widely published
lewd photo” that ended a congressman’s career after he sent it
to a woman he fancied; and projecting the iconic 1972
photograph of a naked girl fleeing a napalm attack as part of a
slide show on the history of the Vietnam war. The ACLU notes that
even a mother who shares a nude photo of her newborn baby with
relatives would be a felon under the plain language of this
statute.
The ACLU—which is joined in the lawsuit by several bookstores,
the Voice Media Group (which publishes the Phoenix New
Times), the American Booksellers Foundation for Free
Expression, the Association of American Publishers, the Freedom to
Read Foundation, and the National Press Photographers
Association—argues that the Arizona law violates the First
Amendment because it “criminalizes non-obscene speech”
and imposes overbroad, content-based restrictions that are
“not tailored to a compelling or important governmental purpose.”
The suit also argues that the statute is unconstitutionally vague
and that its application to online content “unjustifiably burdens
interstate commerce and regulates conduct that occurs wholly
outside the borders of Arizona.”
Reason TV on revenge porn:
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