Arizona's Revenge-Porn Bill, HB 2515

 Posted on February 18,2014 in Uncategorized

Arizona HB2515:

AN ACTAMENDING TITLE 13, CHAPTER 14, ARIZONA REVISED STATUTES, BY ADDING SECTION 13?1425; RELATING TO sexual offenses.Be it enacted by the Legislature of the State of Arizona:Section 1. Title 13, chapter 14, Arizona Revised Statutes, is amended by adding section 13-1425, to read:13-1425. Unlawful distribution of images; state of nudity; classification; definitionA. It is unlawful to knowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.B. This section does not apply to any of the following:1. Lawful and common practices of law enforcement, reporting criminal activity to law enforcement, or when permitted or required by law or rule in legal proceedings.2. Medical treatment.3. Images involving voluntary exposure in a public or commercial setting.C. A violation of this section is a class 5 felony, except that a violation of this section is a class 4 felony if the depicted person is recognizable.D. For the purposes of this section, "state of nudity" has the same meaning prescribed in section 11?811.

(H/T Adam Steinbaugh via Twitter.)

Incidentally:

"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.

So you take a picture of your wife in a nice dress with plenty of decolletage (revealing part of the breast lower than than the top of the areola), and you show it to someone without her written consent. If you're in Arizona, that's a felony.

Or you repost an image of Janis Jackson's 2004 Superbowl wardrobe malfunction (revealing a portion of the breast below the areola) on your blog. Boom, felony.

Doesn't pass the smell test. But let's do the First Amendment analysis.

Does it restrict speech? Yes: displaying, distributing or publishing a visual depiction ("reproduction"?) is speech.

Is it a content-based restriction? Yes: it forbids distributing images of another person "in a state of nudity," but not cat pictures.

Does the forbidden speech fall into one of the historically recognized categories of unprotected speech to which First Amendment protections do not apply?

1. Obscenity? Some of the depictions might coincidentally be obscene, but "might" is not good enough to invoke the exception.

2. Defamation? The images (reproductions?) are presumably true, and truth is a defense to defamation.

3. Fraud? Nope.

4. Incitement? Nope.

5. Speech integral to criminal conduct? Nope. Publishing the images might be part of the criminal conduct of extortion (for which revenge-porn purveyors are being prosecuted), but not necessarily and, again, "might" is not enough.

Since no heretofore-discovered category of historically unprotected speech covers the speech that the Arizona legislature would forbid, here we have a proposed law, short and sweet, that, to pass constitutional muster, would require the discovery of a new category of unprotected speech.

As I've said before, it might happen, but I'm not betting on it.