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Arizona AG Agrees to Stay Enforcement of 'Revenge Porn' Law

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By Mark Wilson, Esq. on December 01, 2014 2:49 PM

Back in May, Arizona joined a host of other states in criminalizing "revenge porn," defined there as the distribution of a nude depiction of another adult without the other's consent. Arizona's law made it a class 5 felony, and a class 4 if the person was recognizable, meaning a sentence of six months to three years depending on the offense.

Such laws have been introduced, or enacted, in 28 states. Civil liberties groups, however, contend that, as written, they suffer from some serious constitutional defects. Right before Thanksgiving, the Arizona Attorney General, recognizing these problems, agreed to stay enforcement of Arizona's law pending further developments.

Finally, Someone Cutting Down on Litigation

These developments, according to the motion, which was agreed on by the Attorney General and the plaintiffs in the case, include new legislation that would amend the law to address its flaws. The Attorney General said the stay would "spar[e] the parties from spending unnecessary time and expense continuing to litigate whether Ariz. Rev. Stat. § 13-1425 is constitutional, only for it to be modified in the upcoming legislative session." They agreed that a stay would remain in effect until the end of the legislature's first regular session, in order to give the legislature time to vote on the amendment.

The ACLU filed suit in September on behalf of a bookstore claiming books featuring the Abu Ghraib photographs would no longer be permissible to sell, as well as reproductions of the famous Vietnam War-era "Napalm Girl" photo, or retweets of Anthony Weiner's sexually explicit tweets (links not provided; you can go find them yourself, I'm sure).

Basically, according to the ACLU, nothing in the law limits its scope only to pornography or only to those photos distributed out of a motivation for revenge. It also makes negligent distribution a crime, as the law prohibits distribution of a photo if the distributor knows that the person in the photo hasn't consented to its distribution, but also if the distributor should have known.

But Would This Law Ever Work?

Sarah Jeong, who wrote about the Arizona law for Forbes back in September, when the ACLU first filed suit, pointed out that the law can't do much to address the much larger problem of the distribution networks for "revenge porn" thanks to a federal law, the Communications Decency Act. The CDA would have prevented celebrities whose nude photos were leaked on Reddit and other websites from taking action against the websites; they instead would have had to take action against the original publisher of the photos, who still remains unknown.

Consequently, even if a website should have known that the photos it publishes were distributed without the consent of the person depicted, there's still the CDA safe harbor provision, so long as the operator of the website wasn't the one who put them up there. So it is that a little rewriting might save the Arizona statute, but only in the specific circumstance of a person who posts a photo after a relationship goes south. If the victim has no idea who posted the photo, or if the photo was taken via hacking, then there may be no relief in sight.

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