Is The ACLU Overdoing It With Its Revenge Porn Law Case In Arizona?

Arizona revenge porn law
The ACLU is suing Arizona over the state revenge porn law.

The ACLU is suing Arizona over the state’s revenge porn law. The charge: the statute doesn’t pass the First Amendment sniff test. Could Arizona’s revenge porn statute be better worded? Absolutely. Is the ACLU ignoring current provisions in the statute that will most likely prevent the worst-case-scenario examples used in their claim? Arguably, yes.

Arizona recently passed a revenge porn law. Good, right? Well, yes; but, many people are worried that the new statute could be used to censor art and photojournalism.

The ACLU, in conjunction with a group of booksellers and stores, sued the state, arguing that Arizona’s revenge porn law is in conflict with the First Amendment of the U.S. Constitution. The case, Antigone Books v. Horne, could have a significant effect on the wording of revenge porn laws moving forward.

But is it a valid case? Is the ACLU making a mountain out of a mole hill?

If Arizona’s revenge porn law remains un-edited, the ACLU warns that the following could happen (via this Forbes.com article):

  1. 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.
  2. A newspaper and magazine vendor in Arizona offering to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib.
  3. An educator in Arizona using images, taken from the Internet, of breast-feeding mothers, in an education program for pregnant women.
  4. 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.
  5. A mother in Arizona sharing with her sister, in the privacy of her home, a nude image of her infant child.
  6. A sexual assault victim in Arizona showing a photograph of the naked assaulter to her mother.

In a National Law Journal article, Michael Bamberger explains his problem with Arizona’s revenge porn law:

In its broadest sense, this is a supposed revenge-porn statute that does not require revenge. There is no intent requirement, and it covers far more than porn. That’s why it concerns booksellers, publishers, etc.

The statute also has problems with vagueness. There’s an exception for photos taken in a commercial or public setting. It’s not clear what that means [and] the bookseller might not have a way of knowing the circumstances of how the photo was taken.

But here’s the rub: the Arizona law makes exceptions for “images involving voluntary exposure in a public or commercial setting.” Theoretically, though, it’s still not an air-tight provision, and it could lead to censorship. To wit: soldiers could argue “lack of consent” if their images appear in a “leaked government image of a graphic nature” (think Guantanamo Bay scandal).

Antigone Books v. Horne is a curious case, and to be honest, we don’t have a dog in this race; both sides have compelling enough arguments. But since we’re an Arizona-based law firm that handles revenge porn, we’ll be tracking it.

If you are dealing with a revenge porn or thedirty.com problem, get in touch with Kelly / Warner Law today. We’ve helped hundreds of women get their pictures taken offline. Reach out today to begin the conversation.

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