Arizona's Revenge Porn Law Isn't a Solution — It's a Different Kind of Problem

When the Arizona legislature unanimously passed law HB2515 earlier this year, lawmakers touted it as a means to criminalize revenge porn — sexually explicit media that is shared online without the consent of the pictured individual. In practice, however, Arizona's law would seem to criminalize just about any kind of nude photograph.

That's why the law is now being challenged by a collection of book and newspaper publishers, librarians, free speech organizations, photographers, content providers, and bookstores in a lawsuit filed by the ACLU last week. In Antigone Books v. Horne, the plaintiffs allege that HB2515 is an "overbroad and content-based statute that criminalizes the display, publication, and sale of non-obscene images fully protected by the First Amendment."

And they're right — Arizona's revenge porn law is, in actuality, a nude photo law.

An early draft of the legislation required written consent prior to disclosure, which would have criminalized watching Titanic without first obtaining a note from Kate Winslet. That shortcoming was resolved before the final version of HB2515 landed on Governor Jan Brewer's desk. A number of other flaws, however, remained in the final version.

The enacted law states that it's:

[u]nlawful 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.

Violations can carry a penalty of up to three years and nine months in prison. The law includes four narrowly drawn exceptions, but none for disclosure that relates to the public interest.

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When the naked photo law was passed in May, I argued that it was so broadly drafted that it would have made criminals out of news organizations who shared, linked, or published the selfies from the 2011 Anthony Weiner sexting scandal — a problem raised by the plaintiffs in Antigone Books. Without definitions for its key terms, knowledge requirements on the part of the "discloser," and public interest exceptions, the Arizona naked photo law is incapable of distinguishing the Huffington Post's vast catalog of celebrity sideboob shots from hacked celebrity photos.

Among other claims, the Antigone Books plaintiffs (full disclosure — one of them, Changing Hands Bookstore, was my first employer) argue that the law is unconstitutional because it "discriminates on the basis of content, is not tailored to an important governmental purpose, and creates an overbroad restraint on protected speech."

To illustrate the overbreadth of the law, the ACLU offered up several examples of otherwise innocuous activities that are swept up by HB2515, including:

• Showing images of naked prisoners tortured at Abu Ghraib
• Linking to the iconic Pulitzer Prize-winning photograph of "Napalm Girl," showing an unclothed Vietnamese girl running from a napalm attack
• Waving a friend over to see a cute naked baby pic

It's no coincidence that a number of the plaintiffs challenging the law are bookstores. That's because selling and re-selling books that feature nude photography could create criminal liability for because the photographic subject consented to the original photographs being taken — but not necessarily and specifically to the distribution of the published photographs.

"There are books on my shelves right now that might be illegal to sell under this law," Changing Hands Bookstore owner Gayle Shanks said in a statement. "How am I supposed to know whether the subjects of these photos gave their permission?"

Arizona state Representative JD Mesnard, who sponsored HB2515, offered up a solution last week. He said that if booksellers are concerned about criminal liability under the law, they can "put a black bar over certain body parts before publishing the work."

Setting aside the fact that many of the Antigone Books plaintiffs are selling books, not publishing them, Mesnard's suggestion for a solution actually perfectly illustrates the problem: The law is so broad that the only surefire way to avoid a violation is to censor all nudity. It should go without saying that a law that would require a new mom to cover up pictures of her unclothed newborn before showing them to her family does not align with First Amendment jurisprudence.

Mesnard clarified that targeting other kinds of nudity is "obviously not what the intent of the bill is." That's of little consolation to the Antigone Books plaintiffs, since the actual text of HB2515 doesn't prevent a prosecutor from going beyond what Mesnard says he intended.

Would doing so be a prudent decision on the part of an Arizona prosecutor? No. But once you've put a wounded antelope in front of a lion, you can't be surprised when the lion goes in for the kill. Voice Media Group, the publisher of the Phoenix New Times and one of the named plaintiffs, has been harassed by Arizona law enforcement in the past for publishing nude photos that amounted to protected speech.

I refer to HB2515 as Arizona's "naked photo law" because referring to it as an "anti revenge porn" law does a disservice to the advocates and victims who are putting pressure on state legislatures to criminalize revenge porn. Professor Danielle Citron at the University of Maryland Francis King Carey School of Law and Professor Mary Anne Franks at the University of Miami School of Law have been at the forefront of the conversation about criminalizing revenge porn, and have drafted model revenge porn legislation.

The Arizona law bears little resemblance to their proposals.

As Sarah Jeong pointed out in Forbes, the model statute provided by Citron in her upcoming book, Hate Crimes in Cyberspace, explicitly excludes "disclosures that related to the public interest." Franks' "Guide For Legislatures" cautions against many of the shortcomings that plague Arizona's law. And unlike Arizona, some states have chosen to incorporate Citron and Franks' suggestions into enacted legislation. The recently enacted Colorado law, for example, includes exceptions for disclosures made in relation to a newsworthy event. Idaho's law includes sections that define operative terms in the law, like "disseminate" and "publish."

That's not to say these laws replicate model legislation. It isn't even to say that other states' laws are immune from constitutional challenge. However, the additions of a public interest exception and definition section represent attempts to narrow the scope of the criminalization, which is critical if the law has any hope of standing up to First Amendment scrutiny. The Arizona law lacks both.

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Any criminal law meant to target revenge porn must be narrowly drawn if it has any hope of clearing the high constitutional hurdle that the Supreme Court has set for protected speech. But the Arizona naked photo law is decidedly not narrowly drawn, and that is likely to be its downfall. Given that the Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment, it's hard to imagine upholding a law that, on its face, criminalizes tweeting a photo of Rihanna wearing a see-through dress on a red carpet.

The solution to revenge porn may ultimately need to come in the form of state or federal legislation — but Arizona's naked photo law is not that solution. It's just a different kind of problem.

Amanda Levendowski is a writer and graduate of New York University School of Law who focuses on free speech, privacy, intellectual property, and technology issues. Follow her on Twitter: @levendowski