Federal Judge Temporarily Blocks Arizona's Revenge Porn Law Over First Amendment Concerns

from the going-after-bad-people-with-worse-laws dept

Arizona's revenge porn law is one (of many) hamfisted attempts to address a specific problem with an overbroad solution. Its supporters' zealousness to stamp out revenge porn left footprints all over the First Amendment, turning something as innocuous as an ill-advised retweet into a crime on par with domestic violence.

The law contains no exception for "newsworthy disclosures" and requires "explicit permission" for any posting of images, etc. of a "person in a state of nudity or engaged in specific sexual activities." While this law would have made revenge porn illegal, it also made plenty of protected speech a criminal act.

The ACLU challenged the legislation, providing a list of non-revenge-porn speech that would be considered criminal under the new law.
  • 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.
Fortunately, a federal judge has (for now) halted enforcement of this terrible law until it can be rewritten.
The order from U.S. District Judge Susan Bolton came as part of an agreement between the Arizona attorney general's office and the groups that sued. The order blocks enforcement of the law to allow the Legislature time to work on changes.
Those objecting to the law include not only expected civil liberties defenders like the ACLU, but also several bookstores, publishing associations and the National Press Photographers Association. The legislator behind the bill, J.D. Mesnard, says he'll work on it but can't promise he'll make opponents happy.
"Given my willingness to do that, it made sense to say, well let's see if we can get an agreement to hold off on the bill for now and make some changes in the next session," Mesnard said. "We may end up right back where we are now because some of the issues the ACLU brought up, I don't think they'll ever be satisfied."
In short, the Constitution will continue to be violated because the ACLU (and others) want too much free speech. This doesn't sound like someone willing to accept the fact that the law is badly and broadly written, but more like someone who thinks the ACLU's demands are impossible to satisfy. It also doesn't sound like someone who's interested in scrapping a law simply because the federal government has stepped in and basically declared it unconstitutional.

We can probably expect another showdown after Mesnard and his fellow legislators make a few token concessions. However, if it remains largely unchanged, Mesnard may find himself with no revenge porn law at all. The groups behind this legal challenge have vowed to seek a permanent injunction if there isn't a significant overhaul.

As has been pointed out before, revenge porn can often be tackled with existing laws. The process can be cumbersome, but the solution shouldn't be the crafting of broadly-written, unconstitutional legislation to address a specific issue -- legislation that will criminalize protected speech if allowed to proceed unchallenged.

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  • identicon
    Anonymous Coward, 1 Dec 2014 @ 9:16am

    Dammit Arizona, first you give us wonderful examples of humanity like Joe Arpaio, then you pass idiotic immigration bills and now this. I don't I will ever set foot there in the near future.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 1 Dec 2014 @ 9:37am

      Re:

      Dammit Arizona ...
      Cut 'em some slack. The heat down there cooks their brains.

      They got good god-damned reason to be crazy—they get broiled in that desert.

      reply to this | link to this | view in chronology ]

    • identicon
      Captive Audience, 2 Dec 2014 @ 7:32am

      Re:

      Maricopa County, where Joe Arpaio serves encompasses the cit;y of Phoenix. I assure you it's a very nice place to visit especially in winter in spite of that scenile, incompetent, blowhard of a sheriff.

      reply to this | link to this | view in chronology ]

  • icon
    Chris Rhodes (profile), 1 Dec 2014 @ 9:33am

    Implied Dichotomy

    While this law would have made revenge porn illegal, it also made plenty of protected speech a criminal act.
    I'm not sure that those two things are necessarily separate categories, which is most of the problem with these sorts of laws in the first place.

    reply to this | link to this | view in chronology ]

  • icon
    orbitalinsertion (profile), 1 Dec 2014 @ 10:11am

    turning something as innocuous as an ill-advised retweet into a crime on par with domestic violence.


    Oh, well you shouldn't have to worry about them enforcing it all that much in the first place, then.

    But yeah, the whole thing is ridiculous. These laws are designed to remove freedoms (some kind of Victorian repression) as well as make things into crimes that are easily acted on by police that just want to run in and crack heads and generally just be authoritarian. None of this messy sorting things out between individuals, which they have failed to do well at pretty much any time.

    They could streamline the legal process for dealing with some of the elements in cases where a person's privacy is being violated by unauthorized public reproduction of private images. Or, you know, use images of criminal acts where the exposed person was not a willing participant to convict the perpetrators.

    The problem is they want a damn cookie-cutter solution to seem like they are doing something about what might be a moral outrage in some cases, while also satisfying the authoritarian and sexually repressed sectors.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 1 Dec 2014 @ 10:21am

    * A mother in Arizona sharing with her sister, in the privacy of her home, a nude image of her infant child.
    Isn't this also illegal under the badly written "child pornography" statutes?

    reply to this | link to this | view in chronology ]

  • icon
    tqk (profile), 1 Dec 2014 @ 10:30am

    "We may end up right back where we are now because some of the issues the ACLU brought up, I don't think they'll ever be satisfied."

    This doesn't sound like someone willing to accept the fact that the law is badly and broadly written, but more like someone who thinks the ACLU's demands are impossible to satisfy.

    I don't know Mesnard, but that does sound like he knows they'll end up right back here, with an unconstitutional law which can't be enforced. I'd give him the benefit of doubt and believe he understands he's been correctly smacked down for proposing a bad law.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Anonymous Coward, 1 Dec 2014 @ 10:59am

    Goal in Progress

    Goal = Government Controlled Speech

    Methodology = Any way we can, even incrementally.

    Opportunity = Moral outrage over teenage behavior (nothing new) in adults, or at least ones old enough to use electronic devices.

    Incident Report = Another attempt at a toe in
    .....Status: in progress
    .....Dependencies: Multitudinous hoodwinking and newspeak.

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 1 Dec 2014 @ 11:09am

    This doesn't sound like someone willing to accept the fact that the law is badly and broadly written, but more like someone who thinks the ACLU's demands are impossible to satisfy

    Well, to be fair, that's not an unreasonable assumption given their history. They've gotten a lot better in the last few years, taking on a bunch of cases where they actually try to fix problems rather than making them worse, but when a good deal of their existence before the turn of the millennium was devoted to the sort of horrible stuff they're infamous for, like using a bad interpretation of the First Amendment to chip away at religious freedom at every turn, you can see why people in a conservative state like Arizona might be suspicious of their involvement.

    reply to this | link to this | view in chronology ]

    • icon
      Blue Sweater (profile), 2 Dec 2014 @ 6:30am

      Re:

      "using a bad interpretation of the First Amendment to chip away at religious freedom at every turn"

      I'd be interested to see what cases you are referring to. When I went looking I could only find cases where they were fighting for religious freedom.

      reply to this | link to this | view in chronology ]

  • identicon
    Rudyard Holmbast, 1 Dec 2014 @ 2:03pm

    Given this site's wholehearted support of First Amendment-quashing "campaign finance" laws, it is absolutely hilarious to read bullshit about how the Arizona legislature now needs to show due deference to the courts concerning this law. The same goes for the unintentionally hilarious(for its sheer hypocrisy) comment about the ACLU and other groups that want too much free speech for some people's taste. Correct me if I'm wrong, but the ACLU also opposes the ridiculous campaign finance laws supported by those who run this site.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 1 Dec 2014 @ 2:52pm

      Re:

      Nice job of presenting your opinion that campaign finance == speech as if it were unbiased fact!

      Personally, I do think that campaign finance and free speech are linked. I also think that free speech is not an absolute right. It can be (and is) restricted in situations where the societal cost of the speech is so great that it unduly infringes on other rights. I think that campaign finance clearly falls into that category -- the damage done by money in politics actually is an existential threat to the US.

      The overly broad revenge porn law does not fall into that category. If the law were properly written, then we wouldn't be having this discussion.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Dec 2014 @ 1:13am

      Re:

      I'll correct you - your sole aim here is to troll the site relentlessly. Ergo, your shit-for-commentary isn't worth taking seriously, not even with the whole shaker of salt.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Dec 2014 @ 3:27am

      Re:

      Nobody believes you, bobmail.

      reply to this | link to this | view in chronology ]

    • identicon
      Zonker, 3 Dec 2014 @ 1:00pm

      Re:

      Money (campaign finance) is not speech. If it were speech, then poverty would be unconstitutional as the penniless would be denied their right to free speech since they would effectively have none. Thus we would have to make money available without limit to all in order to protect the right to free speech.

      Even if you argue that money is only speech when spent on political campaigns, then you would still have to grant money freely to any person for that specific use. Currency is a federally issued, regulated, and recognized commodity after all, and denying it to some would abridge their use of it.

      "Congress shall make no law... abridging the freedom of speech"

      reply to this | link to this | view in chronology ]


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