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

Legal Issues

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.

Filed Under: arizona, free speech, intent, jd mesnard, revenge porn