Not that any pass constitutional muster, but of the knee-jerk laws passed to criminalize revenge porn, Arizona’s was among the worst. On behalf of bookstores, libraries, newspapers and other lawful and First Amendment protected people and entities who would prefer not to be imprisoned for the exercise of a constitutional right, the ACLU and the Media Coalition have challenged the law.
Protecting personal privacy is, without doubt, a laudable goal. Indeed, the ACLU works tirelessly to protect your private data. But Arizona’s “nude photo law” is a seriously misguided attempt to achieve that goal. This new crime is broad and confusing. It applies to anyone who shares a nude image, not just to bad actors who intentionally invade another’s privacy. A prosecutor need not demonstrate that a person had an expectation of privacy in an image before charging you with a crime for sharing it. And the law applies equally to a private person’s hacked naked photo and a beautiful nude at a photography exhibit — because the law’s breadth encompasses truly newsworthy, artistic, and historical images.
As a result, the nude photo law creates bizarre and troubling burdens on speech fully protected by the First Amendment.
To drive home the point, Lee Rowland gives a pop quiz:
Which of the following could land you a felony conviction in Arizona?
- Showing images of naked prisoners tortured at Abu Ghraib;
- Linking to the iconic Pulitzer Prize-winning photograph of “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack;
- Sharing a close-up photo of a woman’s breast with a breastfeeding support group;
- Waving a friend over to see a cute naked baby pic — like the one you see on this page.
Unfortunately, the answer is all of the above.
The law is that bad, that overbroad. Would it suffice to nail the men who are cast as the evil villain in the stories of revenge porn trauma. Sure. The problem is that to make sure it gets them all, every single one, and offers no chance of letting one get away on some “technicality,” like intent, it sweeps a great many innocents into its grasp as well.
People like Lee Rowland contend that can’t be allowed. Proponents of laws like this shrug, happily prepared to suffer the collateral damage, as long as they get the people they want. Well, truth is they won’t suffer at all. Maybe you will. Maybe others will. And that’s fine with them. When an innocent gets caught in the net, they will explain that he sheds “sad male tears” and should take one for the team. Suck it up to end revenge porn, brah.
To counter the deceitful efforts to characterize anyone who doesn’t support the criminalization of revenge porn as misogynists, Lee makes the point (as does pretty much everyone else) that the victims of what is properly described as revenge porn do indeed suffer from this blight.
Proponents of the law indicated that it was intended to address the harms of “revenge porn” — a digital phenomenon typified by a scorned lover who maliciously posts private images of an ex online, often alongside her personal details. The harms of such conduct can be very real, and they predominately impact women. There are true horror stories about women who have suffered extreme humiliation and harassment, had intimate photos sent to relatives and coworkers, and lost job opportunities.
Every argument by proponents tells of the stories of harm, knowing that the appeal to emotion is strong and tends to overcome the appeal to reason. It’s never been that the harm isn’t real, but that the logic fails. It’s been a successful tactic, as some usually intelligent people have been sucked in, letting their tears blind them from the flagrant constitutional deficits.
States can address these harms without treading on free speech, if and only if those laws are tailored to addressing malicious invasions of privacy. Arizona’s is not. And we’re not going to blindly trust that the government will apply this broad law responsibly, only against the “bad guys.”
By this, Lee argues that any attempt to stop revenge porn can only be permissible if it doesn’t impair free speech. Yet, a primary advocate of criminalizing revenge porn immediately sought to spin this to suggest that Lee was saying something very different.
@ACLU admits#revengeporn harm is real & that laws can prohibit it w/o violating#FreeSpeech – we agree!
This is the nature of advocacy, where deception and manipulation are the stock in trade. By no stretch of the English language did Lee, who is now spokesperson for the ACLU apparently, “admit” that laws “can prohibit” revenge porn without violating free speech. Clearly, her point was that such a law can only be constitutional if it is so narrowly tailored that it addresses only the “malicious invasions of privacy.” It’s a world of difference.
We agree?
While the ACLU and the Media Coalition challenge the constitutionality of the Arizona law, a leading proponent praised this law.
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.
The broader the better, lest anyone escape, even if that means the First Amendment slams shut like a prison door.
Could there be a viable law crafted that would pass constitutional muster by limiting its breadth to only those miscreants who cause the malicious harm proponents spend so much time extolling? That remains to be seen, as no one has as yet come close.
Then again, the law promoted by proponents isn’t meant to concern itself any more with free speech than it must to slip-slide its way into the hearts of legislators. After all, any real concern for passing constitutional muster might let a bad guy get away. They couldn’t bear that happening.