Does Arizona’s Revenge Porn Law Criminalize Notable Nudity?

Governor Jan Brewer signed HB 2515 into law, making Arizona the ninth state to criminalize revenge porn. Here’s what the law says:

Unlawful to intentionally disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording of another person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure.

The law has four disclosure exceptions for:

1. Lawful and common practices of law enforcement, reporting unlawful activity, or when permitted or required by law or rule in legal proceedings.
2. Lawful and common practices of medical treatment.
3. Images involving voluntary exposure in a public or commercial setting.
4. An interactive computer service, as defined in 47 United States Code Section 230(f)(2), or an information service, as defined in 47 United States Code Section 153, with regard to content provided by another person.

Read the full text of HB 2515 here.

An earlier draft of the law provided fewer exceptions and required written permission prior to disclosure. Another change that many folks expected to see in the final version of the law was an exception for something along the lines of “newsworthy disclosure.” But there isn’t one. Which means that legitimate media coverage of newsworthy events that include sexually explicit images could fall within the scope of the Arizona revenge porn bill.

The law could apply to the snaps of Anthony Weiner’s dangerzone that he didn’t publicly tweet (which Buzzfeed included in its July 25, 2013 story). Or US Airway’s gaff-tweet of a woman’s landing strip* and the subsequent sharing of the image (as HuffPo did in its story about the tweet on April 14, 2014), which is the very issue I blogged about last week.

I’m intentionally not linking to these sites: It doesn’t look like the statute defines disclosure, and who knows what a determined prosecutor might interpret “distribution” to mean.

I’ve been writing about revenge porn for the better part of a year now. Revenge porn is a problem in desperate need of a solution, one that may well need to come from the legislature. But a solution can’t come in the form of an overbroad law that sweeps up legitimate, newsworthy speech.

The Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment. Generally, laws that regulate speech based on its content have a pretty high constitutional hurdle to overcome. And it’s not at all clear that Arizona’s revenge porn law can do that.

*Note: Jezebel reported that the image US Airways tweeted was from a German amateur porn website, but I haven’t confirmed that.

Update: NPR’s TLDR ran this post on its website today!