ARIZONA — A state law created to protect people from “revenge porn” has drawn criticism and a federal lawsuit from bookstores, publishers and news media groups, who claim they could be punished because the law is overly broad and violates constitutionally guaranteed free speech.
The law, which went into effect in July, prohibits the disclosure, publication or recording of “another person in a state of nudity or engaged in a sexual act” if the person depicted has not given consent for disclosure. Violators could be incarcerated for three years and nine months.
On Tuesday, the complaint was filed against Tom Horne, the state’s attorney general, as well as the state’s county attorneys. The plaintiffs — which include local bookstores and organizations such as the American Booksellers Foundation for Free Expression and the National Press Photographers Association — claim the law violates their First Amendment rights.
For members of the press, the law could prevent them from photographing and publishing images of newsworthy events of subjects that are not voluntarily exposed. For the bookstore owners, they could violate the law if they did not know if nude subjects in books they’re selling had their pictures taken involuntarily.
While a spokesman in Horne’s office declined to comment on the lawsuit, the office has 30 days to file an answer in court.
Mickey Osterreicher, NPPA’s general counsel, said that although the law has good intentions, it could create a “chilling effect” for photojournalists.
“I really don’t know what they could do to save this bill but clearly, as written, we believe it’s unconstitutional,” he said.
Trudy Mills, co-owner of Antigone Books, one of the plaintiffs in the lawsuit, said he is concerned with the law “because it just seems so vague in terms of the books we sell, and whether I know about the origin of every nude picture that appears in them.”
The American Civil Liberties Union of Arizona, which is representing the plaintiffs, has opposed the law since the last legislative session.
“Given the poor drafting of this particular law, where it wasn’t targeted at the alleged harms they were trying to get at, it went way beyond those to get much, much more behavior that is clearly not revenge porn and is protected by the First Amendment,” said Dan Pochoda, ACLU of Arizona’s legal director.
While the law does include an exception to any images involving “voluntary exposure in a public or commercial setting,” Pochoda said that exception is limited, adding that a “public interest exception” is also necessary.
One example frequently cited for exception of public interest, Pochoda said, is the Pulitzer-Prize winning “Napalm Girl” photograph taken by Nick Ut during the Vietnam war. The complaint also cites the images of naked prisoners in Abu Ghraib that would be deemed illegal under the current law because the subjects did not have their photos taken voluntarily.
Contact SPLC staff writer Michael Bragg by email or at (703) 807-1904 ext. 119.