ACLU Challenges Constitutionality Of Arizona's Revenge Porn Law

from the good-for-them dept

Back in May we wrote about a problematic new anti-revenge porn law in Arizona. As we’ve been detailing for a while, revenge porn is a horrible thing, done by disgusting people, but we’re quite reasonably worried about many of the legal attempts to “deal” with it, because they’re often overly broad, or create other problematic consequences. The Arizona law was immensely troubling in that it appeared to punish First Amendment protected activities, and turning them into a “sexual offense” that was considered on par with domestic violence in the law. Even posting something for a journalistic purpose could be considered a felony offense. We had trouble seeing how it could possibly be Constitutional.

It appears we weren’t the only ones alarmed by the breadth of Arizona’s law. The ACLU has now sued to argue that the law is an unconstitutional violation of the First Amendment. The ACLU, in its announcement about the lawsuit, details a number of situations in which the law would technically apply, creating criminals:

  • 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.

Note that none of those, even remotely, resemble “revenge porn.” And that’s a big part of the problem. Criminalizing speech is always going to create problems. In this case, the ACLU has signed up a large bunch of clients, including book sellers, newspapers, photographers and more. The full filing is well worth reading. It points out the simple fact that this law goes way too far:

The Act, however, is vastly overbroad in its reach. It is not limited to disclosures motivated by revenge; in fact, the motive of the person making the disclosure is irrelevant under the law. Nor is the law limited to pornography or obscene images. And the Act is not limited to digital speech: It equally criminalizes posting another?s private photograph on a widely-accessed Internet site, showing a printed image to one friend, publishing a newsworthy picture in a textbook, and including a nude photograph in an art exhibition.

The lawsuit goes through a rather thorough explanation of just how many problems there are with the law. While some may attack this lawsuit as somehow “defending” revenge porn (just as some have attacked us in that manner for merely worrying about how broad these laws are), but that’s ridiculous. A badly written and overly broad law is a problem that will be abused. That doesn’t take away from the fact that revenge porn is despicable and that those who run those sites (hell, anyone who uses those sites) are self-categorizing themselves as scum of the earth. But none of that means that we should ignore the First Amendment or otherwise create laws with significant unintended consequences for all sorts of otherwise legitimate activity.

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Companies: aclu

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Comments on “ACLU Challenges Constitutionality Of Arizona's Revenge Porn Law”

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14 Comments
Michael (profile) says:

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 picture that is embarrassing to the US government stopped, check.

A newspaper and magazine vendor in Arizona offering to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib.

Images that are embarrassing to the US government stopped, check.

An educator in Arizona using images, taken from the Internet, of breast-feeding mothers, in an education program for pregnant women

Educational material not given to the schools by the US government stopped, check.

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.

An end to the pirate-loving libraries, check.

A mother in Arizona sharing with her sister, in the privacy of her home, a nude image of her infant child.

An end to the SHARING of copyright material, check.

A sexual assault victim in Arizona showing a photograph of the naked assaulter to her mother.

An end to the young girls sexually abused by members of congress being able to confront their abuser, check.

I don’t know, I think this law works exactly like it is supposed to.

Trevor says:

Re: Re:

How do you get consent from girl in the picture from vietnam?

If it’s an art exhibit, do you have to get permission every time it’s displayed, or just once it’s taken? Does permission pass to subsequent users, or does it just apply to the first posting?

Can an infant give consent? Even if it’s just the mom showing her sister?

Does consent have to be in writing? If someone gives verbal consent and then later sues, how do you defend against the allegations?

What if it’s a historical picture that happens to show nudity in the background? Even if the original subject never gave consent?

These are real questions, I’m not trying to troll.

Anonymous Coward says:

Re: Re: Re:

Can an infant give consent? Even if it’s just the mom showing her sister?

The mother can let her sister or other person, assuming that they are a responsible person, look after the baby for a period, or let them help look after it. Therefore there is no harm to the infant in them seeing such photos, as they will probably have seen the infant, and possibly have cared for it, in various states of undress. To take any other line of reasoning is to insist that only the parents can have anything to do with the caring of babies and infants.

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