Censorship

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

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Anthony Weiner

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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  1. I am calling for a moratorium on Carlos Danger pics.

    1. According to someone who claimed to be able to tell, those are chest implants.

  2. This seems like something that the civil courts could handle. If a woman finds that her ex has posted photos of her online without consent she can sue him. But then that would deny politicians an opportunity to jump in front of a parade and pass stupid legislation, which is something AZ politicians specialize in.

    1. While I agree with you, the argument probably goes like “that will only make him thirst for more revenge and to post more things. He can’t upload naughty photos from a cell.”

      I see that being a very convincing argument.

  3. Too Chilly – be careful!

  4. To these RP “victims” I say: tough titty.

    YOU posed in front of a digital device.
    You allowed another person to posses a copy
    You are responsible for the existence of the media.

    Is it a felony to show the pics to an individual? How about leaving them in a place where others MIGHT see them? What’s the difference between that and an internet porn site? The amount of eyes viewing? How many eyes are OK?

    This whole issue is bullshit. You have control over the existence of nude photos of yourself, if you trust the wrong person with them, the world will see your birthmarks, and you will deserve it.

    1. HATER! MISOGYNIST! PREYING ON THE WEAK! MEANIE! OR SOMETHING!

    2. Yeah. I think putting up revenge porn is a shitty thing to do, but at this point people should really know better than to make the shit in the first place if they don’t want it displayed in public.

      1. While obtaining video consent with a notary present during the sexual act, witnessing each moment of consensual sexual interaction, they could also execute an instrument prohibiting the distribution of the production without the consent of the two (or more) parties and the blessing of the Commission for Okaying Intercourse Throughout the United States.

        1. “This Valentine’s Day, get her that something special. Get her… a Notary.”

      2. You’re making the same, knee-jerk mistake as everyone else: blaming the victim for not being able to see the future. Why don’t we focus our ire and condemnation on the person who violated the other person’s privacy? We don’t need any more laws or to put more people in jail, but we do need to place the blame where it belongs–on the creep who posted private photos of someone else.

        1. Thus the civil suit.

          1. Sure, but it’s unfortunate we don’t have the ‘loser pays’ system here. Most guys would probably go broke defending themselves against (possibly false) allegations.

            1. Now you just go to jail.

            2. Not unfortunate at all. In “loser pays” systems the rich and corporate can totally screw over the poor without any fear of being sued… the risk you take by suing someone, even when you have a good case, is too great for a poor or even middle-class person to bear.

        2. WTF are the consequences? Some amount of strangers saw you naked? And some (admittedly, assholish) guy has to become a FELON? Fuck everyone who backs this turd of a law.

        3. We don’t need any more laws or to put more people in jail,

          Then we are in agreement that laws punishing this behavior should not be passed..

          Why don’t we focus our ire and condemnation on the person who violated the other person’s privacy?

          Exercise your First Amendment rights in this regard to your heart’s content.

          1. Of course I oppose these unnecessary laws. As for shaming people who post nude or sexual photos online without permission, most people (including people on this comment board) continue to blame the woman for taking or sharing the photos in the first place, while giving a pass to the person who betrayed her trust. I don’t support criminalizing the act, but we should call these guys out so their next girlfriends know what kind of scumbag they’re getting involved with.

            1. There’s no law preventing a website doing just that. I only object to felonizing the posters. I also believe that the “victims” are at least partially culpable, in that it’s not hard to forsee, and I’ve known women who have refused to be photographed nude for just this reason.

        4. There’s already a tort in many states for publication of private facts, which should cover this.

    3. How about leaving them in a place where others MIGHT see them? What’s the difference between that and an internet porn site? The amount of eyes viewing? How many eyes are OK?

      Apply that logic to someone posting your SSN on the Internet and suddenly the ambiguity will disappear.

      “Sorry, you willingly told that electric utility your SSN, so you forfeit any right to keep it private.” Tough titty, as some might say.

  5. Why do I get the feeling the Arizona pols who came up with this law sat around in committee, drooling, “Hey Tom, let’s see another dozen or so of those revenge porn shots…wouldn’t want to legislate too hastily, heh, heh, heh.”

  6. So, what would happen if a woman posts nude photos of herself online (through a public Wi-Fi hotspot or using an IP address that can’t be linked to her) and blaming it on her ex? Would anyone believe for a second that HE didn’t do it? So, to spare some women a little embarrassment a bunch of guys will be jailed, have their lives destroyed and probably end up on the sex offender registry. Insanity.

  7. What about Regret Porn?

  8. selling or lending art books featuring photographic nudes (especially if the subjects cannot verify consent because they are dead);

    Prosecution would have to prove beyond a reasonable doubt that the seller/lender knew the model didn’t consent.

    selling a magazine that includes pictures of prisoners abused at the Abu Ghraib prison in Iraq;

    Reporting unlawful activity.

    using images of breast-feeding women copied from the Internet in an educational program for expectant mothers;

    Again, the prosecution would have to prove that the person knew the breastfeeder did not consent.

    passing along the “widely published lewd photo” that ended a congressman’s career after he sent it to a woman he fancied

    Sounds like he’s already distributing it.

    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

    “images involving voluntary exposure in a public or commercial setting.”

    1. Sounds like he’s already distributing it.

      He sent it privately to someone who then posted it publicly on the broader internet. Kinda, you know, the exact thing this law criminalizes.

      “images involving voluntary exposure in a public or commercial setting.”

      Not sure how “voluntary” fleeing your burned out village is, but I’m 100% certain you shouldn’t have to go to court to make your case that it is.

  9. So is Reason/ACLU nitpicking the wording of the law or do they really think there’s no right to control the distribution of one’s own naked or sexually active image.

    Cause if it’s the latter, how do they justify Peeping Tom laws, for instance?

    1. Cause if it’s the latter, how do they justify Peeping Tom laws, for instance?

      Peeping Toms generally aren’t invited by their victims to have a look, and there’s no possibility that the perp’s actions could be confused with lawful acts.

      This is why it should take more than a GED to become a cop.

      1. Peeping Toms generally aren’t invited by their victims to have a look

        They’ve thrown the importance of requiring consent out the window in arguing against the revenge porn, so you can’t really make that argument anymore.

        there’s no possibility that the perp’s actions could be confused with lawful acts.

        In the absence of PT laws, the acts would be perfectly lawful.

  10. Wait a minute.. Ya’ll are looking at this all wrong. Reducing the fear of being found online will only make it easier to get her to send the noodz.

  11. 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.”

    If the victim isn’t recognizable then how exactly would one even prosecute such a case?

    Victim: “I didn’t consent to have these photos published!”

    Defense attorney: “Do you recognize yourself in any of these photos?”

    Victim: “Well, uh…”

    If the alleged victim isn’t recognizable in the offending photo, what, are they taken at their word by default? Stripped naked in front of the jury? How would you prove that?

    1. There’s a difference between being able to recognize the person who a picture is of just by looking at the picture, and being able to tell whether a given person is the person in a picture when you see them side by side.

  12. my co-worker’s sister-in-law makes $83 /hour on the internet . She has been without work for nine months but last month her paycheck was $17548 just working on the internet for a few hours. learn the facts here now….

    ???????? http://www.netjob70.com

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