Arizona is one of a number of states that have recently passed what are commonly known as “revenge porn” laws. The laws criminalize the display of nude or sexually explicit photos of a person without that person’s consent. Their aim, generally, is to penalize the posting of, for example, nude photos of a former lover on a social media site or other place where they can be viewed by others. And in Arizona, a violation is a felony. Arizona law also now provides that revenge porn can be the basis of a domestic violence charge under A.R.S. 13-3601.

Well, the American Civil Liberties Union didn’t care much for the law, and filed a lawsuit seeking to block its enforcement. But before you go on a rant against the ACLU, and accuse the organization of being “pro-revenge porn,” we should tell you that the problem, according to the ACLU, is not that the law criminalizes revenge porn, it’s that in the process, the broad language of the statute also criminalizes a host of other behavior, including photos that are “newsworthy, artistic, educational or historic.” The plaintiffs in the case, a coalition of newspapers, bookstores, publishers, and others, claim that the law improperly criminalizes speech that is protected under the First Amendment. One of the arguments in a case like this is that when a law is overly broad on its face, and relates to the First Amendment, its mere existence on the books has a “chilling effect” on free speech.

Well, the ACLU’s position was shared by lots of others, including, apparently, the Attorney General of Arizona, the named defendant in the ACLU lawsuit. Everyone involved agreed that the legislature was just sloppy (or lazy) when the language of the new law was drafted; as a result, the parties entered into an agreement to hold off on the lawsuit, and on the enforcement of the existing law, until the legislature has a chance to review the language. The agreement is accompanied by an order, signed by Federal District Judge Susan R. Bolton, that enforcement of A.R.S. 13-1425 (the revenge porn law) is stayed pending further order of the court.

Around the same time, police say a Phoenix man posted nude pictures of a woman on his Facebook page, without the woman’s consent. They claim the man also illegally entered the woman’s home and left threatening messages on her cell phone. So the cops arrest the man for a number of felonies, including violation of the revenge porn law, enforcement of which had already been stayed under the court order.

Technical issues aside, we wonder why the cops would go out of their way to charge a suspect with violation of a law that, at best, is in purgatory at this point. Of course, at this point the prosecutor can’t charge a violation of that law, so the action of the police as it relates to revenge porn, we suppose, is effectively meaningless.

In the meantime, the federal case is still alive, and we believe that unless the legislature redrafts the law, there is a good chance that it will eventually be declared unconstitutional as currently written.

Law Offices of David A. Black
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