Going After 'Revenge Porn' With a Sledgehammer, Arizona Smashes the First Amendment
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: