Arizona’s Well Intentioned Revenge Porn Law Totally Misses the Point

You can’t make everyone happy all the time. That’s an old principle that Arizona is learning this week as its new revenge porn law draws ire, outrage, and even a few lawsuits. Most critics are claiming that the law is way too broad and will criminalize people for things that probably don’t qualify as revenge porn.

Revenge porn is absolutely a real problem. There are countless stories of women whose jilted exes, or men they rejected, submit nude photos of them to be ridiculed by the denizens of the internet. Or the women whose faces are flawlessly photoshopped onto naked bodies. Or the women who have their emails hacked, and their nude photos stolen for no apparent reason other than that the hacker wanted to shame, ridicule, or ogle them.

Revenge porn has made headlines recently because its victims have gotten notably more high profile. Two releases of nude photos in the past month have targeted celebrities such as Jennifer Lawrence, Gabrielle Union, and Ariana Grande. Sometimes a threat of revenge porn is enough to make headlines. After Emma Watson’s inspirational speech on feminism earlier this week, internet trolls have been threatening to release nude photos of her…because speaking out about inequality is clearly a crime punishable by public humiliation and degradation.

It’s within this context that Arizona passed a new revenge porn bill this week. The idea behind the bill is good, truly. But the execution is a little rough. As Wired summed it up:

The law makes it criminal to disclose, display, publish, or advertise any images of a person who is ‘in a state of nudity or engaged in specific sexual activities’ if the person who shares or publishes the images ‘knows or should have known’ that the person depicted in the image did not consent to ‘the disclosure.’

The worry is that this could criminalize a whole bunch of stuff — for example a picture of a woman whose breast is partially exposed while breast feeding, or a historical book that includes a nude photo, or that iconic image of the “Napalm girl” from the Vietnam War, or hundreds of other things that certainly aren’t revenge porn. It also will cause problems for book stores and libraries, as they’ll have to make sure that everything they receive, including magazines, have pictures with specific consent. While they probably do, the off chance that this law could be accidentally broken will probably make book sellers air on the side of caution.

The American Civil Liberties Union (ACLU) has now filed a suit against the Arizona law. The organization claims that the law violates the First Amendment. Legal Director of the Arizona ACLU Dan Pochoda, stated,

On its face it will affect a goodly amount of protected speech that has nothing to do with the prototypical revenge porn scenario. There’s a reason why so many media folks, bookseller folks, have joined (the lawsuit,) because a number of things they do in a normal course would be criminalized by this law.

On Arizona’s part, it really does get an A for effort. In an environment where many people are not only accepting but encouraging the release of the nude photos of those young female celebrities, it’s important that states take serious action against revenge porn. But the issue with this law is that it seems to fundamentally misunderstand what revenge porn is.

Revenge porn isn’t just about the sharing of nude photos without explicit consent — that seems to be more of a copyright issue. Revenge porn is about the intent behind it, and that’s usually revenge. It’s used to put a woman in her place, or shame her for being sexual, or put her in a compromising position with family and friends and work. It’s not necessarily about the nakedness, it’s about the vulnerability and helplessness that comes with it. So while Arizona’s law is a really, really great start, it fails to focus the criminalization, and instead criminalizes everything. Some narrowing could fix these problems; let’s hope that Arizona gets that and focuses on what really matters: making sure those who legitimately distribute revenge porn are punished.

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.