Does Arizona’s Revenge Porn Law Criminalize Notable Nudity?

Friday, May 02, 2014 - 11:08 AM

[Hey TLDR folks, PJ here. Amanda Levendowski is a friend of the show and a revenge porn braniac. She wrote a nice post about how Arizona's new revenge porn law actually has pretty troubling implications for journalists, which we're re-publishing here with permission.]

Governor Jan Brewer signed HB 2515 into law, making Arizona the ninth state to criminalize revenge porn. Here’s what the law says:

Unlawful to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.

The law has four disclosure exceptions for:

1. Lawful and common practices of law enforcement, reporting unlawful activity, or when permitted or required by law or rule in legal proceedings.
2. Lawful and common practices of medical treatment.
3. Images involving voluntary exposure in a public or commercial setting.
4. An interactive computer service, as defined in 47 United States Code Section 230(f)(2), or an information service, as defined in 47 United States Code Section 153, with regard to content provided by another person.

Read the full text of HB 2515 here.

An earlier draft of the law provided fewer exceptions and required written permission prior to disclosure. Another change that many folks expected to see in the final version of the law was an exception for something along the lines of “newsworthy disclosure.” But there isn’t one. Which means that legitimate media coverage of newsworthy events that include sexually explicit images could fall within the scope of the Arizona revenge porn bill.

The law could apply to the snaps of Anthony Weiner’s dangerzone that hedidn’t publicly tweet (which Buzzfeed included in its July 25, 2013 story). Or US Airway’s gaff-tweet of a woman’s landing strip* and the subsequent sharing of the image (as HuffPo did in its story about the tweet on April 14, 2014), which is the very issue I blogged about last week.

I’m intentionally not linking to these sites: It doesn’t look like the statute defines disclosure, and who knows what a determined prosecutor might interpret “distribution” to mean.

I’ve been writing about revenge porn for the better part of a year now. Revenge porn is a problem in desperate need of a solution, one that may well need to come from the legislature. But a solution can’t come in the form of an overbroad law that sweeps up legitimate, newsworthy speech.

The Supreme Court has held that offensiveembarrassingdisgusting, and evenfalse speech warrant protection under the First Amendment. Generally, laws that regulate speech based on its content have a pretty high constitutional hurdle to overcome. And it’s not at all clear that Arizona’s revenge porn law can do that.

*Note: Jezebel reported that the image US Airways tweeted was from a German amateur porn website, but I haven’t confirmed that.

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Comments [4]

Sam

ridovem, I don't disagree that some people want to see pictures of public figures in varying states of undress, I just think this article is assuming that the law is accidentally restricting the press by being unconstitutionally over broad, and needs to defend that assumption. The media has no trouble writing stories about child pornography prosecutions without including the images at the center of the story, and if states are taking the position that nude pictures of a person circulated against their will are similarly obscene, it doesn't really matter whether the subject is famous, or whether a lot of people want to see the picture. Weiner went public with some of the pictures, but the ones he sent directly to people who then circulated them against his will are exactly what this law is trying to prevent. Unlike in the Stevens case the author cites, the concern here is whether "revenge porn" might sometimes be worth the harm it causes, not whether the law applies to an expanse of related contexts no one meant to regulate.

May. 05 2014 11:44 AM
ridovem from Vashon, WA

I disagree, Sam. It's as much "news" to see what lengths Anthony Weiner went to, as a 'display', as is the front-end damage to the semi that hit a tour bus in a highway crash. The picture IS generally worth at least a few hundred words... and the actual comparison between image and descriptive language is... ineffable. ^..^

May. 04 2014 04:30 PM
markD

1. Define, legally, "newsworthy," and its boundary to "not newsworthy."

2. Is free speech free from the cost of damage from any libel it commits?

3. Should exception be made for journalists (and publishers actually) who publish pornography for purposes of titillation, controversy, or sensation for their commercially beneficial effects? How is a the difference to be determined?

4. Should an image be considered exempt if another form of communication provides equivalent information, say a verbal description? Example: the verbal description that ("Anthony Weiner sent a picture of his penis to an aide who was a journalist who volunteered for the purpose of exploiting trust to contrive (e.g., by overt provocative flirtation) sensational situations to publish".

5. Define "journalism" and "journalist."

May. 04 2014 01:56 AM
Sam

You and I have very different definitions of "newsworthy disclosure". The news was that Anthony Weiner was sharing the pictures. What he looks like without pants isn't news. The picture is included the feed the puerile interest and generate page views, and its inclusion causes the problem the law aims to prevent.
The constitutional hurdle gets much easier if the Court decides an act isn't speech, and not all expressive acts are treated as speech.

May. 02 2014 12:29 PM

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