Arizona makes deal with ACLU, won’t enforce bad law on “revenge porn”

A lawsuit filed in September by the American Civil Liberties Union, along with a group of booksellers and publishers, has put a stop to Arizona's "revenge porn" law.

The lawsuit argued that the Arizona "revenge porn" law went too far and violated the First Amendment. The statute widely banned the posting of nude images without consent, but it had no requirement that the person distributing the images be intending to harm the person portrayed. The ACLU and the Media Coalition argued that could have led to criminal charges against artistic photographers or those who take newsworthy or historic photographs.

In their complaint, ACLU lawyers said the law could get newspapers or academics in trouble for showing images with political and historical significance, like images of Abu Ghraib prisoners or a photo like the iconic 1972 "Napalm Girl" photo.

The Arizona Attorney General (AG) agreed to a temporary stay of the case in November. Once the 2015 legislative session began, lawmakers considered a possible fix to the law's language. However, the legislature adjourned in April without passing the change.

On Friday, US District Judge Susan Bolton published a final decree (PDF) stating that the state AG and all of Arizona's County Attorneys cannot enforce the law in its current form.

Arizona Attorney General Mark Brnovich, who was elected after the lawsuit was filed and took office in January, didn't fight the ACLU lawsuit. In an interview yesterday, a spokesperson for Brnovich's office said parts of the law had "ambiguities that raise legitimate constitutional concerns."

"Through good-faith negotiations, we came to this consensus [with the ACLU]," Ryan Anderson, Brnovich's Director of Communications, told Ars. "They were great to work with. Our office hopes that the 2016 legislature will amend the relevant statute to address the concerns that were identified."

The Attorney General also agreed to pay the plaintiffs' legal costs. Bolton asked the two sides to try to reach agreement on what those costs should be in the next two weeks.

"This is a complete victory for publishers, booksellers, librarians, photographers, and others against an unconstitutional law," said Media Coalition Executive Director David Horowitz. Media Coalition's members include plaintiffs in the suit.

What remains to be seen is if free-speech activists challenge "revenge porn" laws in other states for having gone too far. Several states have passed laws seeking to outlaw "revenge porn" while staying within the bounds of the First Amendment. In California, one high-profile case that involved revenge porn, identity theft, and extortion led to a conviction and an 18-year prison sentence.

In a brief interview with Ars, ACLU Staff Attorney Lee Rowland declined to comment on possible future actions. The lawyer instead said that some states have passed broad laws that the ACLU has opposed.

"We're taking a look at all the laws to see if any go too far," Rowland said. "The ACLU isn't out to attack revenge porn laws. There are some laws that have been passed to criminalize revenge porn that don't create the acute problems [of the Arizona law]."