Arizona: How Not To Combat Revenge Porn

Arizona House Bill 2515 seeks to criminalize revenge porn. The only small problem: the proposed statute is blatantly unconstitutional. Here’s the text:

Be it enacted by the Legislature of the State of Arizona:

Section 1.  Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read:

13-1425.  Unlawful distribution of images; state of nudity; classification; definition

A.  It is unlawful to knowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

B.  This section does not apply to any of the following:

1.  Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings.

2.  Medical treatment.

3.  Images involving voluntary exposure in a public or commercial setting.

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” has the same meaning prescribed in section 11‑811.

Sigh. This is the trouble with some of the draft legislation floating around out there that gets copied and pasted without the intervention of legal analysis. This bill is plainly unconstitutional – it offers no exception for matters of public concern or newsworthiness. Here’s the hypo that shows why it’s DOA: I have an image of Monica Lewinsky and President Bill Clinton engaged in a sex act. I publish it in the newspaper. Can I be prosecuted? Clearly not – it’s a matter of public concern (the President is having an affair with an intern, a government employee), so the First Amendment blocks the prosecution. And the bill’s failsafe (“permitted by law”) isn’t sufficient; rather, it’s lazy drafting – it puts the onus on courts to clean up the legislature’s mess, and to sort out permitted from proscribed speech. That’s not nearly enough; there is a long line of precedent making clear that the legislature must, for due process reasons, provide far more clear notice of what is banned and not, especially where speech is concerned. (See, for example, Reno v. ACLU.) I lay out the challenges of drafting a criminal law that’ll pass First Amendment muster in this post and in my article Exposed. (Just for one example, the legislature ought to read U.S. v. Stevens.)

Arizona passes a lot of unconstitutional laws these days. Revenge porn is a real problem that needs thoughtful solutions. This isn’t one of them. Arizonans deserve better.

One Response to “Arizona: How Not To Combat Revenge Porn”

  1. And the law seems to permit anyone to take nude photos of patients getting medical treatments and post them on the internet, without the patient’s consent? Strange.