Arizona's Revenge Porn Law Punishes First Amendment-Protected Activity By Making It A Sex Offense [Updated]

Free Speech

from the 'solving'-a-problem-by-creating-new-problems dept

[Update to the update: when writing this post, I misread Chapter 14 of Arizona’s laws to mean that a sexual offense of this nature (revenge porn) would require registration as a sex offender. Not everything listed under “Sexual Offenses” is punishable in this fashion (which includes bestiality, inappropriate contact with a minor, violent sexual assault, etc.) and as Amanda Levendowski (whose post on the law is quoted below) pointed out on Twitter, the law equates revenge porn with domestic violence, which is not an offense requiring registration. My sincerest apologies to everyone for my error. — Tim Cushing]

Updates have been added to the post to clarify that those found guilty under this law don’t end up on the sexual offenders list — instead the crime is considered the equivalent of “domestic violence.”

Another revenge porn law has just gone into effect. This time it’s Arizona seeking to create a new brand of criminal already covered by existing laws. But Arizona’s law does make an effort to be the worst of the worst, what with its removal of wording related to “newsworthy disclosure” and the addition of violators to the state’s sex offender registry making it sexual offense on par with domestic violence (Update: earlier reports saying that it required you to be put on the sex offender’s list are incorrect).

Those jokes about retweeting US Airways’ model-plane-as-‘marital-aid’ gaffe from a few weeks back putting certain states’ residents on the wrong side of newly-minted revenge porn laws aren’t really jokes. Or, at least, they’re the kind of “funny” that kills off your amusement in mid-laugh. The wording of Arizona’s law would (much like New Jersey’s) make violators out of every Arizonan who passed that photo along, as New York defense lawyer Scott Greenfield points out.

Do you have personal knowledge that the woman in the US Airways tweet consented to your distribution of her image on twitter? But you did know she was in a state of nudity, right? And you did it anyway, right? And while it may have been “newsworthy” (or at least lulzworthy) that US Airways made this huge gaffe, there is no rational nexis between a corporate screw up and a woman’s right not to have her nude landing field spewed across the interwebz, right?

Here’s the law in its totality:

Be it enacted by the Legislature of the State of Arizona: Section 1. Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read: 13-1425. Unlawful distribution of images; state of nudity; classification; definitions.

A. IT IS UNLAWFUL TO INTENTIONALLY DISCLOSE, DISPLAY, DISTRIBUTE, PUBLISH, ADVERTISE OR OFFER A PHOTOGRAPH, VIDEOTAPE, FILM OR DIGITAL RECORDING OF ANOTHER PERSON IN A STATE OF NUDITY OR ENGAGED IN SPECIFIC SEXUAL ACTIVITIES IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE.

B. THIS SECTION DOES NOT APPLY TO ANY OF THE FOLLOWING:

1. LAWFUL AND COMMON PRACTICES OF LAW ENFORCEMENT, REPORTING UNLAWFUL ACTIVITY, OR WHEN PERMITTED OR REQUIRED BY LAW OR RULE IN LEGAL PROCEEDINGS.
2. LAWFUL AND COMMON PRACTICES OF MEDICAL TREATMENT.
3. IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING. 4. AN INTERACTIVE COMPUTER SERVICE, AS DEFINED IN 47 UNITED STATES CODE SECTION 230(f)(2), OR AN INFORMATION SERVICE, AS DEFINED IN 47 UNITED STATES CODE SECTION 153, WITH REGARD TO CONTENT PROVIDED BY ANOTHER PERSON.

C. A VIOLATION OF THIS SECTION IS A CLASS 5 FELONY, EXCEPT THAT A VIOLATION OF THIS SECTION IS A CLASS 4 FELONY IF THE DEPICTED PERSON IS RECOGNIZABLE.

D. FOR THE PURPOSES OF THIS SECTION, “STATE OF NUDITY” AND “SPECIFIC SEXUAL ACTIVITIES” HAVE THE SAME MEANINGS PRESCRIBED IN SECTION 11-811.

Section 14 is Arizona’s catchall for sexual offenses, which pushes this law past the usual expansions of stalking or harassment laws and puts violators on the state’s sex offender registries and makes an offense the equivalent of a “domestic violence” offense. This is what happens when legislators mistake themselves for crusaders. Constitutionally-protected speech takes the hit while witches get burned.

But isn’t it unconstitutional, since “[t]he Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment”? Lawprof Danielle Citron debunks the “myth” (even though Citron doesn’t go as far as [Mary Anne] Franks in her zeal to get the evil men at any cost [see footnote 45]) because revenge porn is special, unlike the crush videos rejected in Stevens, by reasoning that aspires to sophistry.) But since revenge porn is so evil, it isn’t subject to logic that would otherwise apply, so we can blindly leap over logical gaps in a single bound. Constitution, gone. Well, at least non-lawyer fans see no problem dismissing it.

Beyond the fact that the bill criminalizes First Amendment activity, and beyond the fact that it makes it a criminal offense to post newsworthy/notable photos as part of a journalistic endeavor, there’s the all-encompassing language at the beginning of the law that will (if given over to zealous interpretation — and what part of this bill isn’t marked by zealotry?) make sex offenders out of people who’ve never posted a nude pic in their life. Amanda Levendowski’s writeup of Arizona’s new law purposefully excludes links to supporting information specifically because of the law’s first paragraph.

The law could apply to the snaps of Anthony Weiner’s dangerzone that he didn’t publicly tweet (which Buzzfeed included in its July 25, 2013 story). Or US Airway’s gaff-tweet of a woman’s landing strip* and the subsequent sharing of the image (as HuffPo did in its story about the tweet on April 14, 2014), which is the very issue I blogged about last week.

I’m intentionally NOT linking to these sites: It doesn’t look like the statute defines disclosure, and who knows what a determined prosecutor might interpret “distribution” to mean.

People who intentionally post “revenge porn” are inveterate assholes, but their actions hardly fit under a sexual offender law. And there are plenty of existing laws that tackle what they do. (Most revenge porn sites seem to be run by people who have no problem with breaking other laws as well.) People who inadvertently wander into the oncoming path of the DO SOMETHING Express aren’t criminals in any sense of the word. But a whole lot of other complications (including limited/no employment) await Arizonans who post the wrong picture online. About the only positive in the bill is that it doesn’t screw with Section 230 protections.

Just because the activity depicted can be described as “sexual” does not make this a sexual offense on the order of domestic violence. It’s more closely aligned with harassment/stalking and should have stayed that way. This law will be abused. There can be no question about that. Revenge porn aficionados shouldn’t walk away unscathed, but First Amendment-protected activity shouldn’t be steamrolled simply to make the path to shutting down revenge porn as smooth as possible.

Filed Under: arizona, first amendment, revenge porn, sex offenders