Court Tells AZ Legislator To Fix His Unconstitutional Revenge Porn Bill; He Immediately Makes It Much Worse

from the Y-CAN'T-MESNARD-LEGISLATE? dept

When something's broken, you fix it. You don't make it worse.

Arizona's "revenge porn" law is bad. So bad it was challenged by the ACLU -- along with a number of journalistic entities -- who pointed out the overbroad wording would make all sorts of free speech criminal. Like publishing photos of the atrocities committed on naked prisoners at Abu Gharib. Or pictures of women breastfeeding. Or a sexual assault victim showing nude pictures of her assaulter to friends or family.

The court agreed, finding the law as written, unconstitutional. It temporarily blocked it from going into effect until it could be rewritten with a more narrow focus, so as not to criminalize protected speech. So, legislator J.D. Mesnard took his law and amended it. And made it worse and less constitutional. Amanda Levendowski, who has been following this law since its genesis, noted that one of the amendments strips out a much-needed First Amendment protection.
So, Arizona revised its revenge porn law to remove the public interest exception:

http://www.azleg.gov/legtext/52leg/1r/adopted/2561jdm.pdf
Sure enough, Mesnard is breaking what's fixed and "fixing" what isn't broken. It appears Mesnard doesn't like the idea of a narrowly-crafted revenge porn law. Interviewed shortly after the court shot down his law, Mesnard stated that it's too much to expect the state to prove accused revenge pornographers are actually revenge pornographers before charging them with felonies.
And they [law opponents, including the ACLU and the Media Coalition] want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.

Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create "a big old loophole."

"I'm definitely hesitant to go down that road because it will in my view make the law nearly meaningless," he said. "Because someone could say `I thought it was funny, I didn't mean to cause harm, I was proud of my ex-girlfriend and the way she looks.' They can come up with all sorts of excuses, and suddenly the very same action which in one circumstance is a crime in another circumstance isn't."
Mesnard wants to divorce criminal activity from criminal intent. He wants a law that makes the accused immediately guilty. Not only did he strip more free speech protections from his law, but he's trying to make eye-of-the-beholder the legal standard for revenge porn cases.

Intent is important. It's what separates murder from homicide. It's what separates security researchers and bug hunters from cybercriminals. It's what keeps every offhand, stupid remark on social media from being punishable as a "true threat." Or, that's the way it should be. The government -- at all levels -- seemingly has very little interest in determining intent. It's more comfortable in criminalizing non-criminal activity than fulfilling its obligations as a prosecutorial force.

Mesnard is no different. It's "hard" to prove intent so let's just write a law that doesn't require any additional thought or legwork. Guilty until proven guilty.

A court tells Mesnard his law is bad and must be fixed. And Mesnard makes it even worse. "Revenge porn is bad," he explains. Someone needs to do Mesnard a favor and put down his crippled hobby horse. The only upside here is that there's no way the court is going to find this version any better than the one it rejected a few months ago. And if he and his fellow legislators can't actually fix it, hopefully it will be overturned. But Mesnard remains an eternal optimist, despite being unable to compose a constitutional law.
"I'm confident that we'll come up with something that will be even clearer and cleaner that what we came up with last year and something that even if the ACLU continues to challenge in court will be upheld," Mesnard said.
Maybe he could start by asking the ACLU how this should be written. As the article points out, 13 other states have implemented "revenge porn" laws, but only Mesnard's have been challenged by the ACLU. It is possible to write a narrowly-crafted law that will survive legal challenges, but Mesnard is clearly uninterested in doing this. He's hoping to just muscle his free speech-threatening law past challengers and the court itself. Mesnard may view himself as tenacious, but if he continues to keep doing the same thing over and over again and expecting different results, he'll find another, much less flattering term being applied.

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  • icon
    Adam Steinbaugh (profile), 6 Mar 2015 @ 11:52am

    One note: the court never found the law unconstitutional. Rather, before there was any motion practice at all, the state's attorney agreed that the law was probably unenforceable and negotiated a stay while the legislature re-works the law. Once the new iteration is passed, the plaintiffs will have the option of continuing their case, at which point the court will be able to proceed with reviewing the statute.

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

    • identicon
      Anonymous Coward, 6 Mar 2015 @ 12:35pm

      Re:

      Arguably that makes it even worse since even the state's attorney found it "probably unenforceable". This kind of junk slipping through is often a sign of a far too non-critical approach to the majoritys laws politically and subpar legal advise.

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

  • icon
    Dave Cortright (profile), 6 Mar 2015 @ 12:09pm

    Narcotics Anonymous, NOT Einstein

    That last link is a misattribution. The real quote is:

    Insanity is repeating the same mistakes and expecting different results.
    Narcotics Anonymous

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

    • identicon
      Anonymous Coward, 6 Mar 2015 @ 12:33pm

      Re: Narcotics Anonymous, NOT Einstein

      Even the link you cite as evidence for Narcotics Anonymous being the author of this quote says that the quote was in oral use before it appeared in their literature...

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

    • identicon
      Anonymous Coward, 6 Mar 2015 @ 12:34pm

      Re: Narcotics Anonymous, NOT Einstein

      Even the link you cite as evidence for Narcotics Anonymous being the author of this quote says that the quote was in oral use before it appeared in their literature...

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

    • identicon
      Anonymous Coward, 6 Mar 2015 @ 12:36pm

      Re: Narcotics Anonymous, NOT Einstein

      You claim the quote originated with Narcotics Anonymous ... but even the link you shared says that the quote was in oral use before it appeared in NA's literature.

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

      • icon
        orbitalinsertion (profile), 6 Mar 2015 @ 3:42pm

        Re: Re: Narcotics Anonymous, NOT Einstein

        Yes and no: The non-profit organization Narcotics Anonymous actually takes it's name from a writer of the Classical Greek period in Asia Minor of the same name, who originated the phrase.

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

  • identicon
    Lord Binky, 6 Mar 2015 @ 12:24pm

    Context Matters!

    "the very same action which in one circumstance is a crime in another circumstance isn't"

    That's not how our laws work. It shouldn't be either. Otherwise a person killing someone because you want their wallet is the same as the person being attacked killing the person who is trying to kill them for their wallet.

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

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 12:42pm

    > but he's trying to make eye-of-the-beholder the legal standard for revenge porn cases.

    Sorry, folks. I was sneaking up on the bill from behind, while it's Anti-Magic central eye was on the ACLU, but I slipped, and it whipped its petrification eyestalk in my direction and I missed my saving throw.

    Anyone got a Stone-to-flesh scroll?

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

  • identicon
    RR, 6 Mar 2015 @ 1:40pm

    Intent

    I think it's this article that doesn't understand intent. Mesnard is doing this to buy votes in the next election, not to fight revenge porn.

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

  • identicon
    Anonymous Coward, 6 Mar 2015 @ 2:23pm

    I would start with the federal stalking statute and tailor it specifically to revenge porn. Then call it a sex offense if they see fit. I'm pretty sure revenge porn already violates the federal stalking statute anyway.

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

  • identicon
    AnonCow, 7 Mar 2015 @ 10:00am

    There has yet to be a "Revenge Porn" law written that would withstand a Supreme Court challenge.

    Why? Because as horrible as it is, it isn't illegal and no number of poorly written laws can make it illegal without obvious Constitutional violations.

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

  • identicon
    Pragmatic, 9 Mar 2015 @ 6:13am

    J.D. Mesnard, repeat after me: "Due process is not an impediment to justice."

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


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