U.S. Judge Blocks Enforcement of Ariz. 'Revenge Porn' Law

Nov 28, 2014 11:30 AM PST

PHOENIX — A federal judge on Wednesday blocked from enforcement Arizona's new "revenge porn" law, which threatens criminal prosecution for posting and reposting content online without explicit consent and has been described as "vastly overbroad in its reach" by its opponents.

The order from U.S. District Judge Susan Bolton was part of an agreement between the Arizona attorney general's office and the groups that sued, including the American Civil Liberties Union, several book stores and alternative weeklies. 

Bolton's order blocks enforcement of the law to allow the Legislature time to work on changes to Arizona Revised Statutes Section 13-1425, which was passed into law in April.

The preliminary injunction is in effect until the governor signs a new version of the bill, or until the Legislature adjourns in late spring.

The ACLU sued in September, claiming the law violates the 1st Amendment and is so broadly written it makes anyone distributing or displaying a nude image without explicit permission guilty of a felony.

"It is not limited to disclosures motivated by revenge; in fact, the motive of the person making the disclosure is irrelevant under the law," the ACLU said in is original complaint. "Nor is the law limited to pornography or obscene images.

The ACLU also said that the Arizona law also creates criminal liability for negligent speech.

"A person who displays a restricted image risks criminal prosecution based on an allegation that he or she 'should have known' that there was no consent," the ACLU said. "Thus, a person who finds and reposts a restricted image online could be prosecuted on the grounds that the person 'should have known' that the depicted person did not consent; the 're-poster' would have the same criminal liability as a knowing privacy invader who posted the original image without consent."

Adult entertainment industry attorney Lawrence Walters told XBIZ on Friday that Bolton's order is consistent with what he predicted "when these first knee-jerk laws were first passed."

"Some lawmakers get worked up about a problem that requires surgical constitutional precision to address but end up using a jackhammer, instead, by imposing broad criminal penalties for engaging in expressive activity," Walters said. "Revenge porn is a problem that needs a nuanced legislative approach. Often the posters of these images have no idea that they were first created or published without the consent of the person depicted. Appropriate First Amendment protections need to be built into these statutes, or they will end up in the dust bin, like this Arizona statute.  

"I'm not convinced this activity warrants new criminal prohibitions in the first place. Laws that impose significant civil liability such as statutory damages and attorneys fees may be sufficient to motivate trial lawyers to take on the bulk of the enforcement burden" 

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