September 25, 2014

Arizona Booksellers and Librarians Sue State over Revenge Porn Law

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This flag represents a state whose legislators don’t write laws very well.

As a rule, state legislators tend to devote their efforts to issues that are not always of the foremost public urgency—issues like how to maximally enrich state legislators. But every once in awhile—perhaps in order to maintain the illusion of the United States as a functioning representative democracy—lawmakers respond to their constituents, or at least to public opinion.

The most recent outburst of actual, non-evil legislative productivity has been centered on revenge porn, the practice of posting sexually explicit photos online without the consent of the photos’ subject. Since 2013, thirteen states have passed laws that ban revenge porn, another thirteen have introduced similar legislation, and Jackie Speier, a Democratic congresswoman from California, is preparing to make this a federal issue, which is probably something Tommy Lee Jones says at one point in U.S. Marshals.

But on Tuesday, Arizona’s version of the legislation hit a roadblock, when the American Civil Liberties Union filed a federal lawsuit against the state over House Bill 2515, which was signed into law by not-at-all-controversial Republican governor Jan Brewer earlier this year. The ACLU’s statement argues that:

As written, the law could be applied to any person who distributes or displays an image of nudity—including pictures that are newsworthy, artistic, educational, or historic— without the depicted person’s consent, even images for which consent was impossible to obtain or is difficult to prove.

The ACLU’s opposition to the law is not surprising in and of itself—as the movement against revenge porn has grown across the country, the group has said that these laws are often written too broadly. Earlier this year, the ACLU’s Lee Rowland told NPR that “the reality is that revenge porn laws tend to criminalize the sharing of nude images that people lawfully own. That treads on very thin ice constitutionally.”

What’s more surprising is who exactly is doing the suing. The legendary Phoenix and Tempe bookstore Changing Hands; Antigone, of Tucson; Mostly Books, also of Tucson; Copper News, of Ajo; and Bookmans, which has a number of locations throughout the state, are all plaintiffs. Why would bookstores take an interest in a law designed to shield victims of internet abuse? As Changing Hands owner Gayle Shanks said in the ACLU statement, “There are books on my shelves right now that might be illegal to sell under this law. How am I supposed to know whether the subjects of these photos gave their permission?” The ACLU argues that a book that contains an image like the Pulitzer Prize-winning “Napalm Girl” could get a bookstore like Changing Hands in trouble. 

And it’s not just booksellers. Other plaintiffs include the American Library Association’s Freedom to Read Foundation, the Association of American Publishers, and the Voice Media Group, which publishes the alt-weekly Phoenix New Times. The coalition’s diversity suggests how significant the law’s unintended consequences may be. The ACLU’s Dan Pochoda told the Arizona Republic that while felony charges for booksellers are unlikely, “in our neck of the woods, there are certainly some with a puritanical streak. And whether it’s a one in a million chance or a 10 percent chance, you don’t want to take that risk.”

The bill’s sponsor, Republican state representative J.D. Mensard, disputed the plaintiffs’ contentions, telling the Los Angeles Times that the suit was “a little bit of [a] stretch”:

“We are talking specifically about images like a sexual act that are portrayed without a person’s consent. I know they [the plaintiffs] are talking about exceptions and I am open to that. The law has some exceptions, such as medical images, but it does get tricky.”

It’s worth reading the ACLU’s statement in full, because it offers a number of excellent hypotheticals that reveal just how “tricky” (and flawed) the Arizona law is. And on the Forbes website, Sarah Jeong has a very thoughtful post on the larger issues that make revenge porn legislation so complicated, though almost everyone, including the ACLU, is sympathetic to its aims.

As for Arizona’s response? Nothing yet. The state has thirty days to file an answer in court.

Correction: This post originally stated that the lawsuit was filed on behalf of the Media Coalition, an organization that defends the first amendment rights of media industries. While some of the Media Coalition’s members (the Arizona booksellers, the Voice Media Group, the AAP, etc.) are plaintiffs in the lawsuit, the Media Coalition is not itself a plaintiff, but co-counsel in the suit.

Mark Krotov was a senior editor at Melville House.

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