PHOENIX — A new Arizona law making "revenge porn" illegal is so broad it criminalizes booksellers, artists, news photographers and even historians and is therefore unconstitutional, the American Civil Liberties Union of Arizona said in a federal lawsuit filed Tuesday.
The civil rights group said the law can make any person who distributes or displays a nude image without explicit permission guilty of a felony. The group says that violates the First Amendment.
"On its face it will affect a goodly amount of protected speech that has nothing to do with the prototypical revenge pornography scenario," said Dan Pochoda, legal director for the state ACLU. "There's a reason why so many media folks, bookseller folks, have joined (the lawsuit,) because a number of things they do in a normal course would be criminalized by this law."
The suit was filed in U.S. District Court in Phoenix on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.
Among the examples of acts they say would be criminalized by the law would be a college professor's use of a Pulitzer Prize-winning Vietnam war photo of a burned and nude little girl running from her bombed village.
"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."
According to the National Conference of State Legislatures, 13 states have adopted revenge pornography laws in the last two years, but most are very narrowly written. The Arizona law is the only one that has been challenged by the ACLU.
Gov. Jan Brewer signed House Bill 2515 into law in April after it unanimously passed the Senate and House.
Republican Rep. J.D. Mesnard of Chandler crafted the bill in response to the growth of "revenge porn" posted online by jilted lovers. The typical scenario is of a person taking nude photos to share with their lover, and after a breakup having the lover post it online in an act of revenge.
Mesnard said he doubts any prosecutor would use the law as the ACLU imagines but is willing to change it to provide exemptions "as long as it's not opening Pandora's box."
"It seems incredible to believe that a prosecutor is going to go after something like that unless he wants to end his career," Mesnard said. "Because that's obviously not what the intent of the bill is."
Pochoda said Arizona prosecutors have a history of threatening to do just that. And he said the mere fear of being prosecuted will stop many from taking the chance of facing a felony charge.
"There's clearly some puritanical urges amongst the prosecutorial folks, including against any demonstrations of nudity, even if it's not with a malicious intent," Pochoda said. "I have no doubt there will be very likely prosecutors who will like to, some who will. And nobody should be put in the position of taking that risk of being prosecuted for what is otherwise protected speech and expression."
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