State holds off on enforcement of 'revenge porn' bill
Posted: Friday, November 28, 2014 10:30 am
By Howard Fischer, Capitol Media Services
State officials have agreed not to pursue anyone from book sellers to Internet posters under a new “revenge porn” law, at least not for the time being.
The order signed late Wednesday by U.S. District Court Judge Susan Bolton gives Rep. J.D. Mesnard, R-Chandler, a chance to recraft the controversial measure to see if he can address the concerns of challengers that the law violates the First Amendment. If Mesnard is successful, the lawsuit goes away.
Mesnard told Capitol Media Services he's willing to give it a try. And he already has some ideas in mind.
He said some of the concerns raised by the American Civil Liberties Union and others are “pretty far fetched.” Mesnard said he does not want to dilute the legislation to the point where it is no longer meaningful.
The law approved earlier this year makes it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” The legislation covers not just images of nudity but also anyone engaged in any sex act.
Offenders could end up in prison for up to 2 1/2 years — or 3 3/4 years if the person is recognizable.
The target is so-called “revenge porn” where someone may have taken a compromising photo during a relationship that was not meant to be shared with others. Mesnard said it becomes an entirely different situation when the relationship ends, often badly, and the images get posted online.
The ACLU and a private law firm representing booksellers sued, charging the law would make criminals out of those who sell, display or simply show images of others who are naked but have not granted specific permission. ACLU attorney Lee Rowland said the result is a “chilling effect” on merchants, causing them to pull books from their shelves for fear that some prosecutors will use the law against them.
Rowland said the law is so broad that a mother who shows a naked photo of her baby to a neighbor also could be charged with breaking the law.
The deal approved by Bolton is based on a promise by Robert Ellman, the state's solicitor general, not to use the new law while efforts to rework it are underway. The attorneys for 14 of the 15 counties also signed the agreement; Yuma County is expected to join the pact after Thanksgiving.
Mesnard said he already is looking at changes. One might be to come up with a more restrictive definition of “nudity” to exclude some images that otherwise might result in criminal charges. Mesnard also said he will explore a “public interest” exception.
In essence, anyone whose publication or distribution of an image that would otherwise fit under the law could escape prosecution if there is a legitimate public purpose. That would cover things like the news photo of a Vietnamese girl running down the road naked after her clothes were burned off with napalm.
Mesnard said he's not convinced all the issues raised by challengers are legitimate. That includes the claim that a mother could end up behind bars for showing off the naked picture of her baby.
“That's an example of something that really wouldn't apply,” he said.
“The mother would give consent of any nudity of their child,” Mesnard explained, meeting the existing exception in the law for situations where there is consent.
Somewhat trickier is the question of books which may have photos or images of someone who is naked. But Mesnard said he believes challengers are looking for problems where none exist.
“The bill only applies when a bookstore knew or should have known they haven't consent,” he said. “I don't know why a bookstore would be expected to know that.”
Mesnard said he's willing to make adjustments — but only up to a point.
“We've just got to be careful to where we don't water this down to where the bill becomes meaningless and is simply a feel-good statement,” he said, and the people who are posting those images of their former lovers no longer feel at risk.
“We're seeing this more and more,” Mesnard said. “And if at the end of the day we just put something in statute that has no teeth and has a net that's so narrow that few, if any cases will ever come under it, well, then we've just wasted everybody's time.”
In accepting the agreement, Bolton rejected a separate bid by challengers for a preliminary injunction to block enforcement of the law. But the judge said they can make the request again if efforts to work out an acceptable version of the law prove unacceptable.
Follow Howard Fischer on Twitter at @azcapmedia.