Arizona’s Revenge Porn Crime: So Much For Limits

When Mary Anne Franks began her Jihad against revenge porn, it was pointed out that her baby had a huge problem. In the zeal to “get” the evil revenge porn men, her law would also criminalize the revelation of Anthony Wiener’s dangerous selfie, and that was not merely a 1st Amendment problem, but one that undermined important public concerns.

Franks adamantly denied her law suffered from significant 1st Amendment deficiencies.  But quietly, while no one was looking, the law morphed to include a “lawful public interest” exception for what’s now been renamed the “Sydney Leathers exception” (which changes the name from the male to the female, even though few people know or care who Sydney Leathers is).

No, Franks didn’t send me a thank you note for pointing out this glaring failure in her law. No, she doesn’t even acknowledge it existed or was brought to her attention by the misogynist enablers she hates so dearly. But that’s okay. Mary Anne isn’t exactly a gracious woman. and changing an incredibly poorly conceived law into just a horribly bad one is more important than a concession that she was wrong all along.

Then came the viral twit “mistakenly” initiated by US Airways of a woman whose model plane strayed off course, which quickly made its way across the twittersphere, and some snarky lawyer pointed out that anyone who retwitted it may well have committed a crime under Franks’ law. Deniers strained to contend that could never happen, convincing no one.

But it didn’t take long before the worst fears came to fruition.  Arizona Governor Jan Brewer signed its flavor of a revenge porn crime into law, becoming the ninth state to do so.  The crime went from misdemeanor to felony. It criminalized images “of another person in a state of nudity,” whatever that means. And it has no “Anthony Weiner Sydney Leathers exception.”

There is much made of the level of mens rea required to commit the crime of revenge porn, with language like “intentional and knowing,” as a saving grace that would remove the innocent, non-revenge porn publishers of nude images of others from its purview.

These arguments are made by folks who have no experience in criminal law, which explains their unfortunate lack of grasp about how such elements are proven.  The law deems intent proven by the underlying conduct: you “intend” to do that which is the natural consequence of your conduct.

There is no magic where courts peer into the minds of the accused to see what their true purpose was. What it does, instead, is shift the burden to the defendant to disprove intent, to testify that he didn’t mean to do what he did.  Not only does this too have constitutional implications, but it rarely works.  The argument against it is that of course a defendant will deny bad intent because he doesn’t want to go to prison, but just look at the horrible smut he distributed!!! Burn the witch. We’ve been down this road too many times to pretend otherwise.

Do you have personal knowledge that the woman in the US Airways twit consented to your distribution of her image on twitter?  But you did know she was in a state of nudity, right?  And you did it anyway, right? And while it may have been “newsworthy” (or at least lulzworthy) that US Airways made this huge gaffe, there is no rational nexis between a corporate screw up and a woman’s right not to have her nude landing field spewed across the interwebz, right?

But isn’t it unconstitutional, since “[t]he Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment”?  Lawprof Danielle Citron debunks the “myth” (even though Citron doesn’t go as far as Franks in her zeal to get the evil men at any cost [see footnote 45]) because revenge porn is special, unlike the crush videos rejected in Stevens, by reasoning that aspires to sophistry. But since revenge porn is so evil, it isn’t subject to logic that would otherwise apply, so we can blindly leap over logical gaps in a single bound. Constitution, gone. Well, at least non-lawyer fans see no problem dismissing it.

So, you ready to take a felony hit for your retwit in Arizona?  But wait, there’s more! And this crime not only makes you a felon, even if the identity of the person can’t be discerned, but [5/10/14 edit] may requires* you to register as a sex offender, with the full panoply of restrictions on your life going forward.  Swell.

You’re probably wondering, but Mary Anne Franks is deeply and passionately concerned about civil rights, so she must be outraged at what Arizona is doing?  From the Christian Science Monitor (quoted at length because Mary Anne gets very angry if you don’t use all of her words):

Arizona’s law does not include a public-interest exception, but does include exceptions for law enforcement, medical treatment, or “images involving voluntary exposure in a public or commercial setting.”

One feature that makes Arizona’s law “conceptually different” and important, Professor Franks says, is that it classifies nonconsensual pornography as a sex offense, while many of the states classify it as disorderly conduct, privacy invasion, or harassment.

Unlike some of the other laws, Arizona’s also does not require proof that the defendant intended to cause emotional distress. That’s good, Franks says, because some people post nonconsensual pornography not out of revenge, but out of a desire to make money or to seek popularity. The fact that the images are out there, “that’s the harm. There shouldn’t have to be an additional motive,” Franks says.

That didn’t take long, now did it. Just as Mike Masnick was excoriated by Franks as a liar for using her words to conclusively prove her desire to circumvent Section 230 protections, her whole concern for the innocent, the Constitution, the accidental and incidental twitterer falls by the wayside as long as the crime gets the villain. So what if you, innocently, are turned into a felonious sex offender too?  Hey, every war has its collateral damage, so just suck it up.

Perhaps a viable solution to the evil that Franks and her fan club sought to eliminate could have been crafted, had she not reacted with absurd defensiveness, attacks, lies and distortion.  But she was already dedicated to her baby, and couldn’t bear the fact that it’s ugly.

As politicians seize upon the latest hated group to prop up their bona fides as tough on crime and protectors of womanhood (much to the chagrin of feminists like Lee Rowland, who reject the notion that they are such delicate flowers that they need and deserve special protections for their fragile sensibilities), revenge porn is the latest misconceived crime to try to tame and silence the internet.

So Arizona took it a step further?  The sound you hear is Mary Anne Franks applauding as Crazy Joe Arpaio rounds up as many people on twitter as he can find. No spin, lies or attacks will change the fact that Franks couldn’t care less who is turned into a felony sex offender, as long as some variation of her pet law is enacted, the hated men go down along with the innocent, and she gets credit for it.

Should Franks’ dream come to pass, and Rep. Jackie Speiers champions a federal crime to hold all of the internet culpable for images posted by users, one thing is certain: The sound of her self-congratulatory applause won’t drown out the cries of the innocent who are swept into this misbegotten crusade or the deafening silence of an internet afraid of being branded a felonious sex offender.  Welcome to Arizona, where Franks says “that’s good.”

* Mary Anne Franks has been writing and twitting about how I was WRONG!!! in this post, but since she neither explained what she was talking about nor alerted me (she no longer mentions my name, though she obsessively twists about me) to her issue, I had no clue what her point was. Had she wanted to me to correct the error, she could have said something, but it was more useful to her to use it to attack me.  What else is new?

As it turns out, I wrote that the Arizona law required sex offender registration, which is incorrect. While it may be imposed, per § 13-3821(C), it is not required at this time.  So she is correct that I made an error. Whether it was worthy of her hysteria, I leave to you to decide.  Whether it’s comparable to the array of “errors” she’s made is irrelevant. Franks is not the measure of my accuracy, and now that I have learned what she’s talking about, I correct it because that’s why I do. And Franks will no doubt harp on it, because that’s what she does.

14 comments on “Arizona’s Revenge Porn Crime: So Much For Limits

  1. Tim Cushing

    Maybe I’m seeing something that’s not there, but it looks like the law could be used to punish people who post photos/videos of porn artists without permission. What used to be just copyright infringement could now be a felony and put the infringing poster on the sex offender registry. Surely, that would be more of a deterrent than copyright law. Why settle for possible statutory damages when you can get the infringer on the same list with statutory rapists?

    The exception says: IMAGES INVOLVING VOLUNTARY EXPOSURE IN A PUBLIC OR COMMERCIAL SETTING. This would seem to exclude professional porn. (Without even getting into amateur porn — itself its own tangled web in the context of this law — I’ll move on.)

    But the language above that says: …IF THE PERSON KNOWS OR SHOULD HAVE KNOWN THAT THE DEPICTED PERSON HAS NOT CONSENTED TO THE DISCLOSURE.

    Certainly, any infringement would be (by definition) non-consensual disclosure. As it’s worded now, it looks like a nicely-sized loophole for porn creators to pursue Arizonans who post porn clips, etc. to their tumblr or whatever.

    But I may just be reading that wrong. It seems like some additional wording is needed to clarify whether or not someone can re-post porn pics without running afoul of the revenge porn law. But maybe those pushing this law also believe that it’s perfectly fine to punish copyright infringement with a lifetime on the sex offender registry.

    Amateur porn makes this even more problematic, obviously. While consenting adults may have posted their own pics/videos on the web for “popularity” or to “make money,” what happens when one party revokes consent? Or if someone reposts the amateur work elsewhere, other than the creators’ chosen venue? It very much looks like more little red dots popping up on Arizonan sex offender maps, even though everyone involved was an adult and consented at some point during the creation of the post facto “revenge porn.”

    1. SHG Post author

      Part of the nature of unintended (or, to be more precise, who cares) consequences is that one can’t be clear on what they will be until after they come to pass. When laws are written, they are crafted to attack a specific problem with language that is directed toward that goal. Since the writers (and supporters) know what they want to do, their vision and understanding are myopic: they know what they mean.

      The problem is that the language of a law speaks for itself, regardless of what someone may have intended or whether any current target was originally meant to be a target. Laws invariably suffer from mission creep, as prosecutors seek to find ways to prosecute and do their best to wedge a fact pattern into an existing law. This one has huge gaps all over the place, rank vagaries that are easily applied to a great many circumstances having nothing to do with revenge porn, and with a huge hammer to beat speech to death.

      So yes, there is a significant potential for this law to be used by porn producers in lieu of copyright to scare, silence and extort from others. And no attenuated arguments will change the threatened impact of such use and its chilling effect, another reality ignored by its proponents.

  2. ppnl

    Maybe the answer is to have the photographer and the model share the copyright on explicit art unless there is a signed contract. That gives the model the power to take down and maybe even sue.

    1. SHG Post author

      Maybe that will work for one of a million fact pattern variations. Now just 999,999 answers to go.

      1. Jim Tyre

        Even just for the one, the number of copyright problems created far exceed the “solution.” See the huge controversy surrounding Google v. Garcia

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  4. bill

    This post dovetails perfectly with your post on the unanticipated cost of regulation. The one thing that’s been totally lost in the Revenge Porn debate is that if you factor in items that were actually distributed as ‘revenge’, the number is almost non-existent. In the VASTLY overwhelming # of the cases, the pictures came from a known vulnerability in Photobucket that they refused to fix for almost a month. Pics on lost/stolen computers/smartphones/tablets are another big chunk. The rest came from social engineering dating ads, pretending to be looking for another partner (in most cases, for a 3 some) or “Trade you my pics for yours” This bill does nothing to address either case – it doesn’t hold companies liable for damage inflicted from refusal to fix a bug (I’m not saying it should) nor does it address the procurement of the images by illegitimate means. This isn’t me rambling off topic even though it may seem like it. The law is terrible even if you take it at face value that it was a means to ‘fix’ the problem – the fact it doesn’t do anything to address the core issues makes it even more of a nightmare. (for the record, there is no ‘fix’ at the moment that could even come close to fixing the problem without dragging in all of unexpected consequences.

    So you’ll just have the sites hosted in other countries (like the old ones were) or as Tor sites, they’ll employ the (you have to commit a crime too in order to participate like WinByState) and they’ll just have people scape the EXIF data and post them through proxy servers. All sorts of collateral damage will happen here (if you’ll forgive my phrase, “It’s an absolute certainty”) as you illustrate, but it will do absolutely nothing to fix the problem. And let’s not forget that while the damage they caused was substantial, Revenge Porn is slimy stuff, so much so the only people willing to be associated with it are pariahs.

    There have been what, 6 actual sites, maybe 7? Randazza, Steinbaugh and a few other attorneys FIXED the problem (and as someone who helped several of the victims, I know this firsthand). For all their bluster, when it came to being named, shamed and sued, all of the vendors capitulated. Randazza alone did more good than this and every other law like it will ever do.

    1. SHG Post author

      Interesting. Adam’s efforts seem to be chugging along unabated, though the “Steinbaugh profile” by Kash Hill in Forbes inexplicably morphed into an infomercial about Franks and revenge porn laws, which is all about Kash’s agenda and has nothing to do with Adam. From a cynical view, one might suspect that Adam was used by Kash and Franks, since he’s accomplished some significant success in deterring the “real” evil, while Franks has accomplished nothing substantive.

      As for Randazza, it’s even more interesting. He’s had great success in helping victims of revenge porn, and similar thinks Franks’ law is garbage. But, he does so pro bono, which means the time he spends helping revenge porn victims while Franks and Citron are busy self-promoting comes out of the time he could be using for paying clients.

      So why aren’t the lawprofs and their chest-thumping friends out there in court helping real revenge porn victims rather than pounding at this ill-conceived law? All talk, no action. Maybe it’s time for Franks, Citron, et al., to start representing real people and accomplishing something rather than leave it to the Randazza and Steinbaugh to do all the heavy lifting? Of course, Franks can’t, since she isn’t a lawyer, but it’s time for the others who make so much noise to put away the magazine glamor shots and google map their way to the courthouse.

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  7. Twerker

    One thing you didn’t mention is that it criminalizes publishing photos that would not fall within what the common person would consider “nudity”. Section 11-811 of the Arizona code defines nudity as the female breast below a point immediately above the top of the areola. This would seem to criminalize publishing photos that show side boob or photo’s of women in half shirts that show the bottom of their boobs. (would post link to “half shirt boob” photo but not allowed)

    Further if I take a picture of my pregnant wife recreating the Demi Moore pregnant nude Vanity Fair cover, then later post it to the internet without her approval I would fall within the definition of this law and be a felon and sex offender. (would provide link to photo but not allowed, search it yourself if interested)

    From Section 11-811 found at (crap just noticed hyperlinks are not allowed)

    14. “Nude”, “nudity” or “state of nudity” means any of the following:

    (a) The appearance of a human anus, genitals or a female breast below a point immediately above the top of the areola.

    (b) A state of dress that fails to opaquely cover a human anus, genitals or a female breast below a point immediately above the top of the areola.

    1. SHG Post author

      The list of things that would conceivably be a crime that have nothing to do with the evil they speak to is limited only by imagination. The breadth of the Arizona law will sweep in a huge number of innocent images. But as I note, they don’t care about the collateral damage, and just deny that unintended consequences will happen or matter.

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