Arizona’s Revenge-Porn Bill, HB 2515

Arizona HB2515:

AN ACT

AMENDING 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; definition

A.  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?

  • Obscenity? Some of the depictions might coincidentally be obscene, but “might” is not good enough to invoke the exception.
  • Defamation? The images (reproductions?) are presumably true, and truth is a defense to defamation.
  • Fraud? Nope.
  • Incitement? Nope.
  • 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.

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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16 Responses to Arizona’s Revenge-Porn Bill, HB 2515

  1. Ross McMicken says:

    Wouldn’t the Janet Jackson incident be covered under the voluntary exposure in a public or commercial setting exception?

  2. Kaylei Elworth says:

    I think you’re oversimplifying the speech analysis. If the prohibited speech does not fall into one of the unprotected categories, then the law is analyzed under strict scrutiny. It’s not per se unconstitutional.

    • Mark Bennett says:

      No, Kaylei. If the law is a content-based restriction, then the law is analyzed under strict scrutiny. If, then, the restricted speech does not fall into one of the unprotected categories, then the law is unconstitutional.

  3. joshuaism says:

    No more sideboob? :(

  4. Matthew W. says:

    I am pretty sure sideboob will get an oscar nomination for American Hustle.

  5. Matthew W. says:

    Seriously, though, I think Kaylei is correct. Adam Winkler published an article on this very topic, finding 30% survival when federal courts apply strict scrutiny:

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=897360

    H/T to wikipedia.

    • Mark Bennett says:

      Don’t encourage her. There’s nothing correct about “If the prohibited speech does not fall into one of the unprotected categories, then the law is analyzed under strict scrutiny.” The law is analyzed under strict scrutiny to determine whether the speech falls into one of the unprotected categories.

      • Kaylei Elworth says:

        You’re being ridiculous. It takes two seconds to find a U.S. Supreme Court case stating that a content-based restriction is analyzed under strict scrutiny. There is no per se rule of unconstitutionality just because the speech does not fall into one of the traditionally unprotected categories.

        One of many examples is United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000). The Court clearly conducts a strict scrutiny analysis (compelling gov’t interest & no less restrictive alternatives) without any reference whatsoever to unprotected categories of speech.

        The only relevance that the unprotected categories of speech have is that they provide their own separate tests to determine if the speech falls within that category. You don’t analyze an obscenity statute under strict scrutiny, you analyze it under the Miller obscenity test. Same for defamation, and incitement, etc.

      • Mark Bennett says:

        You’re pathologically wrong.

        In Playboy (which says, “Since § 505 is a content-based speech restriction, it can stand only if it satisfies strict scrutiny”), the government lost.

        Find a single case in the last 15 years in which the Supreme Court upheld a content-based restriction on speech that didn’t fall into an untprotected category. When you fail to find that unicorn, read U.S. v. Stevens and U.S. v. Alvarez.

  6. Kaylei Elworth says:

    Of course the government lost. I never said it would win. I just said that content-based restrictions on speech, where that speech does not fall into one of the traditionally unprotected categories of speech, are analyzed under strict scrutiny. You’re shifting the goal line.

    U.S. v. Stevens rejected an argument that animal cruelty should be a new unprotected category of speech and then struck down the statute as overbroad. It did not say, “This law is a content-based restriction on speech that does not fall into an unprotected category; therefore, it is necessarily unconstitutional.” U.S. v. Alvarez applied strict scrutiny without saying it did that (calling it “exacting scrutiny” instead). In both of those cases, the Gov’t argued for a new category of unprotected speech, which is why the Court addressed that.

    Opinion by Scalia in 2011: “Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest.” Brown v. Entertainment Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011). Case released the same day by Roberts says the same thing. 131 S. Ct. 2806, 2817. Yeah, the government lost, because strict scrutiny is, well, strict. Almost all statutes analyzed under strict scrutiny fail.

    • Mark Bennett says:

      No. In Stevens—not an easy case—the Court applied a categorical approach. In Alvarez—not an easy case—the Court applied a categorical approach. If you can’t give examples of the rule cutting both ways, it’s probably because it’s not really the rule. Easy cases make for sloppy law.

      The Court might discover another category of unprotected speech. Absent that, this Court is not going to uphold the statute. They’re explicitly not going to do a balancing test.

      As Matthew pointed out trying to help you out, statutes pass strict scrutiny 30% of the time.

      I find that you don’t add anything positive to the discussion. In the future please choose a topic other than First Amendment law (about which you obviously have very strong feelings) to comment on.

  7. Ryan Rodgers says:

    Sharing historical photos of involuntarily nude holocaust victims would be a felony.

  8. Pingback: New Bad Proposals on Both Sides of the Pond | Valerie's Blog

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