An Arizona law passed during the state's 2014 legislative session criminalizes the display, publication, and sale of images fully protected by the First Amendment. On September 23, 2014, the ACLU, the ACLU of Arizona, and Dentons U.S. LLP filed a lawsuit challenging the constitutionality of the law.
The law makes it a crime to "intentionally disclose, display, distribute, publish, advertise, or offer a photograph" or other image of "another person in a state of nudity or engaged in specific sexual activities" if the person "knows or should have known" that the person depicted has not consented to "the disclosure." Under the law, each of the following is a felony, punishable by up to three years and nine months in prison:
- A college professor in Arizona, giving a lecture on the history of the Vietnam War, projects on a screen the iconic Pulitzer Prize-winning photograph, "Napalm Girl," which shows a girl, unclothed, running in horror from her village.
- A newspaper and magazine vendor in Arizona offering to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib.
- An educator in Arizona using images, taken from the Internet, of breast-feeding mothers, in an education program for pregnant women.
- A library in Arizona providing computers with Internet access to its patrons and, because no filters could effectively prevent this result, the library patrons are able to access nude or sexual images.
- A mother in Arizona sharing with her sister, in the privacy of her home, a nude image of her infant child.
- A sexual assault victim in Arizona showing a photograph of the naked assaulter to her mother.
Our clients include booksellers, book and newspaper publishers, librarians, photographers, content providers, and associations representing them. They all offer, display, and sell a broad range of material protected by the First Amendment, including artistic, historical, and newsworthy materials.
The law was passed with the intention 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. But the law, Arizona Revised Statutes Section 13-1425, goes far beyond criminalizing these offensive acts, and makes no distinction between images that are published with malice and those that are not.
As a result, our clients and their members, employees, patrons, and customers all risk criminal prosecution under the law for sharing images fully protected by the First Amendment.