Bookstores, Publishers Fight Nude Photo Ban

     PHOENIX (CN) – An Arizona law making it a felony to distribute nude photos of someone without his or her consent is unconstitutional, a coalition of booksellers, photographers and news media claimed Tuesday in Federal Court.
     Antigone Books and 10 other plaintiffs, including the Association of American Publishers, sued Arizona Attorney General Tom Horne and all of Arizona’s county attorneys.
     The law, which took effect in July, allegedly targets “revenge porn,” but also criminalizes artists, publishes and journalists, the booksellers say.
     Arizona House Bill 2515 makes it a crime 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 a sexual act if the person knows or should have known that the person depicted has not consented to the disclosure.”
     Violation is a felony punishable by up to 3 years and 9 months in prison.
     The booksellers say the law would criminalize a number of constitutionally protected scenarios, such as a college professor who shows students “Napalm Girl,” Nick Ut’s Pulitzer-Prize winning photograph depicting a naked girl fleeing her village in Vietnam, a newspaper that publishes images of prisoners at Abu Ghraib, or an educator who uses photos of breast-feeding mothers.
     Or a bookseller or librarian who offer books by classic photographers such as Edward Weston, which contain nude photos.
     Or a mother who shares with her sister a nude photo of her baby.
     “This law puts us at risk for prosecution,” Gayle Shanks, owner of plaintiff Changing Hands Bookstore, said in a statement. “There are books on my shelves right now that might be illegal to sell under this law. How am I supposed to know whether the subjects of these photos gave their permission?”
     The Arizona Legislature justified H.B. 2515 as an attempt stop “revenge porn” – “a term popularly understood to describe conduct typified by a person knowingly and maliciously posting an identifiable, private image of an ex-lover online with the intent and effect of harming her reputation and damaging her personal and professional relationships,” according to the complaint. But it is unconstitutionally overbroad, since it is not limited to pornography or obscene images.
     “It equally criminalizes posting another’s private photograph on a widely-accessed Internet site, showing a printed image to one friend, publishing a newsworthy picture in a textbook, and including a nude photograph in an art exhibition,” the lawsuit states.
     Lee Rowland, staff attorney with the ACLU’s Speech, Privacy, and Technology Project, says the law criminalizes free speech.
     “States can address malicious invasions of privacy without treading on free speech, with laws that are carefully tailored to address real harms. Arizona’s is not,” Rowland said.
     The coalition seeks declaratory judgment that the law is unconstitutional, and an injunction stopping its enforcement law.
     Its lead counsel is Dan Pochoda with the ACLU Foundation of Arizona.

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