Judge Issues Permanent Restraint on Arizona Revenge Porn Law
U.S. District Judge Susan Bolton issued a decree Friday making a temporary restraint on Arizona’s revenge porn law permanent, at least until the state legislature can address the constitutional issues presented by the language of the law. Issues for the state’s revenge porn law began after the American Civil Liberties Union filed a lawsuit on Sept. 23 challenging its constitutionality; the ACLU and its clients described the law as “overbroad” and containing a “viewpoint-based restriction on protected speech.” Arizona Attorney General Mark Brnovich agreed to a temporary stay of the case in November and hoped lawmakers would fix the law’s language, but the legislature adjourned in April without passing any changes.
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ACLU Speech, Privacy & Technology Project Staff Attorney Lee Rowland wrote a blog post Friday about the court’s decision, saying “Arizona is a little bit freer today.” The state’s revenge porn law “made our clients -- booksellers, photographers, publishers, and librarians -- risk a felony record for publishing images fully protected by the First Amendment,” Rowland said. In its suit against the law, the ACLU represented the American Booksellers Foundation for Free Expression; the Association of American Publishers; Changing Hands Bookstore; Copper News Book Store; Freedom to Read Foundation; the National Press Photographers Association; and Voice Media Group, which publishes news weeklies.
Many county attorneys felt the law was a necessary tool to go after the more serious crimes that have emerged as more people use the Internet and other technologies, said Ryan Anderson, communications director-Office of the Arizona Attorney General. He said that Brnovich was happy with the judge’s decision to restrain the law. The decision was a result of stakeholder meetings Brnovich had with the bill’s sponsors and the ACLU, Anderson said. Hopefully, the legislature will amend the relevant statute to address constitutional concerns during the 2016 session, he said.
The Arizona law was a concern because it banned publishing any photo showing nudity or sexual activity, “which was so broadly defined it included fully clothed simulated groping, without getting the permission of anyone pictured in the image,” Rowland said. “You shouldn’t need a permission slip to post images of horrific torture from Abu Ghraib or the ‘Napalm Girl’ photograph that contributed mightily to changing American attitudes about the Vietnam War,” she said. “In drafting new laws -- particularly new nonviolent crimes that regulate speech, threaten prison time, and can ruin a life -- the details matter hugely.”
Rowland said that revenge porn is a critical issue that must be addressed, but without First Amendment implications. She called Google's and reddit’s offers to remove revenge porn a “huge victory.”
Maricopa County Attorney Bill Montgomery wrote an opinion piece for AZCentral.com published Saturday that said lawmakers should put fixes to the state’s revenge porn law “at the top of their to-do list when they return in the fall.” The law, which was “drafted in response to countless victims, mainly women, who have been subjected to shame, harassment and exploitation by former partners and others who have posted nude or sexually explicit images of them on the Internet without their permission,” contains penalties ranging from probation to three years in prison, depending on the circumstances and criminal history of the defendant, Montgomery said.
“Since last year, my office has reviewed multiple cases that could have been charged under the statute but which had to be either turned down or charged under alternative, often lesser, offenses,” Montgomery said. “It's a safe bet that many more such incidents are either going unreported or are not submitted by police due to known problems with the law.” Until the constitutional concerns can be addressed, Montgomery said, “prosecutors will use every currently available tool to ensure that those who seek to subject others to this online form of torment will pay a price.” Young people should remember that sending nude images to someone can result in unintended consequences, especially when a relationship sours, Montgomery said. “Feelings may be fleeting, but electronic images can last forever.”