First Amendment Lawsuit Challenges Arizona Criminal Law Banning Nude Images

Affiliate: ACLU of Arizona
September 23, 2014 12:00 am

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Bookstores, Publishers, News Media, Librarians, and Photographers Charge Law Violates Freedom of Speech

September 23, 2014

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PHOENIX, Ariz. – A broad coalition of bookstores, newspapers, photographers, publishers, and librarians filed a federal lawsuit today challenging a new Arizona law that criminalizes speech protected by the First Amendment. The plaintiffs are represented by the American Civil Liberties Union, the ACLU Foundation of Arizona, and the law firm Dentons US LLP, which is general counsel to the Media Coalition.

The “nude photo law” makes the display, publication, or sale of nude or sexual images without the subject’s explicit consent a felony punishable by nearly four years in prison. As written, the law could be applied to any person who distributes or displays an image of nudity – including pictures that are newsworthy, artistic, educational, or historic – without the depicted person’s consent, even images for which consent was impossible to obtain or is difficult to prove.

For example, a bookseller who sells a history book containing an iconic image such as the Pulitzer Prize-winning photograph “Napalm Girl” – the unclothed Vietnamese girl running from a napalm attack – could be prosecuted under the law. A library lending a photo book about breast feeding to a new mother, a newspaper publishing pictures of abuse at the Abu Ghraib prison, or a newsweekly running a story about a local art show could all be convicted of a felony.

“This law puts us at risk for prosecution,” said Gayle Shanks, owner of Changing Hands Bookstore, one of the plaintiffs, which has been in operation for more than 40 years in Tempe and recently opened a location in Phoenix. “There are books on my shelves right now that might be illegal to sell under this law. How am I supposed to know whether the subjects of these photos gave their permission?”

The law was passed with the stated intent 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 lawsuit argues that the law criminalizes far more than such offensive acts, and it is not limited to “revenge.” A prosecutor need not prove that the person publishing the photograph intended to harm the person depicted. Likewise, a person who shares a photograph can be convicted of a felony even if the person depicted had no expectation of privacy in the image and suffered no harm. The law applies even when the person in the picture is not recognizable, and the law is not limited to “porn” – it criminalizes publication of nude and sexual images that could not possibly be considered pornography, let alone obscene.

The lawsuit charges that law is so broad and vague that it could send people to prison for sharing material that is fully protected by the First Amendment, and the plaintiffs point to past experience as reason for concern. One of the plaintiffs, Voice Media Group, publishes the Phoenix New Times, which has previously been harassed by law enforcement for engaging in protected speech, including the publication of nude images from a local art show.

“Arizona’s law clearly violates the First Amendment, because it criminalizes protected speech,” said Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project. She added, “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms. Arizona’s is not.”

In addition to Changing Hands Bookstore, the booksellers bringing the lawsuit include Antigone Books in Tucson; Bookmans, which has stores in Tucson, Phoenix, Mesa and Flagstaff; Copper News Book Store in Ajo; and Mostly Books in Tucson. They are joined by Voice Media Group, which publishes numerous newsweeklies; the American Booksellers Foundation for Free Expression; the Association of American Publishers; the Freedom to Read Foundation; and the National Press Photographers Association, whose members have produced images that may now be criminal to distribute in Arizona, including the “Napalm Girl” photograph mentioned earlier.

“This law will have an unconstitutional chilling effect on free speech.” said David Horowitz, executive director of the Media Coalition, whose members include the plaintiff associations of publishers, librarians, and booksellers. “To comply with the law, booksellers and librarians will have to spend countless hours looking over books, magazines, and newspapers to determine if a nude picture was distributed with consent. Many store owners will simply decline to carry any materials containing nude images to avoid the risk of going to prison.”

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