VICTORY! Federal Judge Deep-Sixes Arizona’s Ridiculously Overbroad ‘Nude Photo’ Law

Arizona is a little bit freer today.

With a federal court’s approval, we successfully settled our lawsuit over the state law that made our clients — booksellers, photographers, publishers, and librarians — risk a felony record for publishing images fully protected by the First Amendment. The plaintiffs in the case can now do their important work delivering newsworthy, artistic, and historical speech for us to enjoy — without risking years in the clink.

The Arizona law banned publishing any photo showing nudity or sexual activity, which was so broadly defined it included fully clothed simulated groping, without getting the permission of anyone pictured in the image. You shouldn’t need a permission slip to post images of horrific torture from Abu Ghraib or the “Napalm Girl” photograph that contributed mightily to changing American attitudes about the Vietnam War. These iconic images are obviously a far cry from “revenge porn,” in which a person maliciously invades a former lover’s privacy. But the Arizona law applied equally to both types of images.

Because of the law’s unconstitutional impact, we called it a “nude photo” law. But proponents of the bill called it a “revenge porn” law. That’s a pretty big difference. So what’s going on?

In drafting new laws — particularly new nonviolent crimes that regulate speech, threaten prison time, and can ruin a life — the details matter hugely. This law was extremely broad. It made you a felon if you shared an image of someone grabbing his fully covered crotch and mugging at the camera — even if he initially put it online for all to see. (Michael Jackson must be rolling over in his grave.)

And while this bill was sold as combatting “revenge porn,” it wasn’t limited to that awful conduct. For starters, the law didn’t require that the offender actually intend to enact “revenge” — in fact, the law had no intent requirement at all. Nor did the bill require that a person who posted an image know it was private, just that they “should have known” they lacked consent. (Pro tip: You always lack consent if you haven’t asked for it or been told.) Even the most well-intentioned laws can easily run afoul of the First Amendment if they aren’t carefully crafted with the Constitution in mind.

But, constitutional concerns aside, there is certainly reason to be concerned about revenge porn. Revenge porn is not just about free speech. It’s about women. That’s because the vast majority of real revenge porn is posted and shared online against the wishes and consent of women. It’s not that only women are featured in intimate pics and video s— it’s that our bodies are, disproportionately, a commodity for others’ entertainment. And images of nude women, consensual or not, spread like wildfire online.

Revenge porn victim advocates, who supported the law, tend to oppose intent requirements, which we think should be part of any bill likely to pass constitutional muster, noting that the humiliation a woman suffers increases every time a nonconsensual image is shared, regardless of the motives of the poster. That’s undoubtedly true. But the Constitution means making tough calls sometimes. That means opposing laws that chill or criminalize protected speech, even when we condemn the conduct that well-meaning legislators are trying to target.

The fact that we oppose laws like Arizona’s doesn’t mean we should throw up our hands over revenge porn. The misogyny that is so rampant online is a massive problem of a societal and sociological magnitude. We need to talk about it. And we do. As do revenge porn victims and their advocates. It’s a critical conversation that’s led to the likes of Google and Reddit offering revenge porn takedown requests for the first time. That’s a huge victory — one achieved without a new criminal law and without a new inroad against the First Amendment.

And of course, when revenge pornographers violate existing criminal laws — for example, against stalking, threatening, or extortion — we need to enforce them. And we know, unfortunately, that crimes with female victims are underinvestigated and undercharged. That’s a tragedy, and one the ACLU advocates to change. And it also means we should think very carefully before expanding that system with a new, nonviolent felony for engaging in speech.

The bottom line? You can be a feminist and a free speecher too. We can protect women without enacting laws that overstep the Constitution. At the ACLU, we know that a strong First Amendment is not only compatible with equality but essential to its pursuit.

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David B

Nice job on the win, breadth and intent do matter. I do disagree that revenge porn is about sexual violence against women, which propagates an outdated view that women are sexualized objects of porn, and men are not. Revenge porn can be posted against anyone (male, female, or otherwise), and posted by anyone (male, female, or otherwise)

point

"male, female, or otherwise"????
There are only 2 choices, unless you count the people who have mixed-up DNA &/or genitalia. (And the doctors & parents usually go with whatever seems most appropriate... so there isn't an 'other' category.)

Bryan Dreyfus

I would have gone with: "Men, women & all of you in between (you know who you are!).

Damien McLeod

You have to have intelligent law makers in order to have intelligent laws written and passed.
Most pol's are pretty dumb.

Anonymous

Good deal. The ACLU should be helping the 4 remaining people with unresolved cases from the 2011 Phoenix Goddess Temple "prostitution" raid. Wickedly harsh sentences looming.

Elliot

You guys are phenomenal, and Mrs Lee Rowland, just wanted to let you know that I am your biggest fan!

Nick

Well done. Arizona is a state that needs a lot of oversight.

Todd Giffen

The thing about revenge porn is, you should not be making porn in the first place if you don't consent to it being viewed and circulated. If you do make it, you must make the images yourself and attach a licensing agreement/NDA to it to prevent its disclosure which must be signed by the other party receiving it. The rule is also, if you get naked and someone snaps a pose, its on the one who got naked, and any snapped pictures are technically the property of the person who snapped the pictures to do as they please.

So ladies. Fuck you and your revenge porn laws. Stop posing nude. Stop expecting the law to be able to tell someone what they can and can't do after you decide you want control over something. The law should not be there to tell us what we can and can't do, in our own space, with our own property. Its an individual liberty thing. And possessing, and sharing nude pics is otherwise legal and should be for any purpose. Its a freedom to express, speak, and develop and do what we are thing. And not have the government there to try to put another in prison over something that all parties were fine and dandy with when they removed their clothes in front of a camera.

www.obamasweapon.com

Anonymous

You need to do a little more research about all that revenge porn entails. Not all (in fact few) of the major cases involve images posted *by* or *with the consent of* the subject in the image. Some have involved doctored images, some have involved theft of images directly from the subjects' personal hard drive. I agree that in this day and age particularly people should think twice about the images which are taken of them. However, people, particularly young people make mistakes and in no way deserve to have their lives deliberately ruined by some jerk who can't accept a relationship has ended or doesn't like something someone said. Regardless if they originally consented to the photograph. They DID NOT consent to having it shared or even posted. If you think the results of revenge porn "serve them right" for removing their clothes in front of a camera, you need to seriously review your capacity for compassion and your sense of balance. This does not mean I disagree with the ACLU's stance on the law in question as it was written. Our laws should require specificity and consider intent and I applaud their victory. Your understanding of the subject, not so much.

Berdj J. Rassam

This was an interesting recap of the Arizona case.

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