PHOENIX – A broad coalition of bookstores, newspapers, photographers, publishers and librarians have filed a federal lawsuit challenging a new Arizona law the coalition says criminalizes speech protected by the First Amendment.
Ostensibly designed to outlaw so-called “revenge porn,” the law makes the display, publication or sale of nude or sexual images without the subject’s explicit consent a felony punishable by nearly four years in prison. The law is the broadest and most severe in the U.S.
“As written, Arizona’s ‘nude photo law’ could be applied to any person who distributes or displays an image of nudity—including pictures that are newsworthy, artistic, educational or historic—without the depicted person’s consent, even images for which consent was impossible to obtain or is difficult to prove,” a statement released by the Media Coalition noted. A bookseller who sells a history book containing an iconic image such as the Pulitzer Prize-winning photograph ‘Napalm Girl,’ the unclothed Vietnamese girl running from a napalm attack, could be prosecuted under this law. A library lending a photo book about breast feeding to a new mother, a newspaper publishing pictures of abuse at the Abu Ghraib prison or a newsweekly running a story about a local art show could all be convicted of a felony.”
One of the plaintiffs in the case said the new Arizona law puts intolerable, unconstitutional burdens on free speech.
“This law puts us at risk for prosecution,” said Gayle Shanks, owner of Changing Hands Bookstore, which has been in operation for more than 40 years in Tempe, Ariz., and recently opened a location in Phoenix. “There are books on my shelves right now that might be illegal to sell under this law. How am I supposed to know whether the subjects of these photos gave their permission?”
The law was passed with the stated intent of combating “revenge porn,” a term popularly understood to describe a person knowingly and maliciously posting an identifiable, private image online with the intent and effect of harming an ex-lover or other person with whom the poster has an antagonistic relationship.
Arizona Revised Statutes Section 13-1425 criminalizes far more than just the harmful acts of spurned lovers, though. The law isn’t limited to revenge. A prosecutor need not prove the person publishing the photograph intended to harm the person depicted.
Even worse, a person who shares a photograph can be convicted of a felony even if the person depicted had no expectation of privacy in the image and suffered no harm. The law applies even when the person in the picture is not recognizable. And the law is not limited to “porn”: It criminalizes publication of nude and sexual images that could not possibly be considered pornography, let alone obscene.
The law is so broad and vague that it could send people to prison for sharing material that is fully protected by the First Amendment. According to Voice Media Group, one of the plaintiffs in the suit, that’s not merely a hypothetical concern. Voice Media publishes Phoenix New Times, which previously has faced threats of criminal prosecution for engaging in protected speech, including the publication of nude images from a local art show.
“Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy and Technology Project. “States can address malicious invasions of privacy without treading on free speech with laws that are carefully tailored to address real harms. Arizona’s is not.”
The lawsuit also claims the nude photo law is unconstitutionally vague and violates the Commerce Clause of U.S. Constitution.
In addition to Changing Hands Bookstore, booksellers challenging the law include Antigone Books in Tucson; Bookmans, which has stores in Tucson, Phoenix, Mesa and Flagstaff; Copper News Book Store in Ajo; and Mostly Books in Tucson. They are joined by Voice Media Group, the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation and the National Press Photographers Association, whose members have produced images that may now be criminal to distribute in Arizona, including the “Napalm Girl” photograph.
“This law will have an unconstitutional chilling effect on free speech.” said David Horowitz, executive director of the Media Coalition. “To comply with the law, booksellers and librarians will have to spend countless hours looking over books, magazines and newspapers to determine if a nude picture was distributed with consent. Many store owners will simply decline to carry any materials containing nude images to avoid the risk of going to prison.”
Nevertheless, Arizona State Rep. J.D. Mesnard [R-Chandler], author of the law, defended it, saying the coalition’s arguments represent “a stretch” he believes the courts will not support.
“The bill was inspired by a recent and growing and disturbing trend where folks post photos online of somebody else, in either some kind of sexual activity or nude,” he told Christian news website OneNewsNow.com. “And it’s against their will, or unbeknownst to them, or it’s without their consent or against their consent.
“I forwarded [the coalition’s] concerns to my colleagues,” Mesnard added. “But at the end of the day, nobody agreed [with the coalition]…. My bill passed through the legislature unanimously, bi-partisan, both chambers, and got the governor’s signature.”
