Alia Beard Rau

The Republic | azcentral.com

House Bill 2515 passed the Legislature unanimously and went into effect in July.

The ACLU alleges the law could criminalize booksellers, news photographers and media.

The bill sponsor said it protects people, particularly women, from someone posting nude photos or videos of them without their consent.

A group of local bookstore owners, librarians, publishers and photographers has filed a federal lawsuit challenging Arizona's new "revenge porn" law, saying it goes far beyond protecting people from vindictive former significant others.

The plaintiffs, including the owners of Changing Hands and Bookmans bookstores, say the law has a chilling effect on First Amendment-protected speech and could land them in prison for merely displaying, publishing or selling some nude images.

"There are books on my shelves right now that might be illegal to sell under this law," Changing Hands Bookstore owner Gayle Shanks said in a statement. "How am I supposed to know whether the subjects of these photos gave their permission?"

House Bill 2515 , which passed the Legislature unanimously and went into effect in July, makes it a felony to intentionally disclose, display, distribute, publish, advertise or give a photo or digital recording of another person in a state of nudity or engaged in sexual activities if the person knows or should have known that the person depicted did not give consent.

The law states that it does not apply to "images involving voluntary exposure in a public or commercial setting."

But even with the exceptions, American Civil Liberties Union of Arizona Legal Director Dan Pochoda said the law could be used to criminally charge a bookseller who sells a book with a nude photo on the cover without realizing that the subject didn't give consent.

He said it could be used to criminalize news or historical photos like the iconic Vietnam War photo of a young girl running naked from napalm bombs.

"If I took a picture of a 3-year-old grandchild without clothes on and passed it on even to another relative without the child's consent, that's covered," he said.

He said Arizona's law, unlike similar laws in about a dozen other states, includes no requirement of malicious intent. "So, there's no exception for things like artistic or even public interest, like a photo in a newspaper," he said. "We call it the anti-nudity bill."

Pochoda admitted it's not likely that prosecutors are eager to start charging booksellers or artists with a felony punishable by up to four years in prison.

"But in our neck of the woods, there are certainly some with a puritanical streak," he said. "And whether it's a one in a million chance or a 10 percent chance, you don't want to take that risk."

Rep. J.D. Mesnard, R-Chandler, the bill's sponsor, said the law does what it is intended to do and would not apply in many of the situations the ACLU alleges.

"The intent is to go after harmful behavior when someone comes into possession of a photo, usually of a loved one, and decides they are going to post it online either to embarrass them or to get some other sort of gratification from doing so," Mesnard said. "It's often used against women and in violation of their privacy."

He said it would not apply to something like a news photograph taken in a public place. Among the plaintiffs are the National Press Photographers Association, the Association of American Publishers and Phoenix New Times publisher Voice Media Group.

"They are raising some pretty hypothetical situations, and even those hypothetical situations don't seem to apply," he said.

Mesnard said he may be willing to tweak the law's wording to include an exception for public interest. But, he said, there is no existing definition in state law of public interest, so that would "turn a black-and-white law gray."

He said he would not support adding a clause requiring malicious intent to prosecute.

"When you get into a situation where the exact same action is OK in one circumstance but not OK in another circumstance, that's called viewpoint discrimination," he said. "The law should be focused on an action. It really shouldn't matter whether someone thought it would be funny."

Mesnard said such a clause would make it too easy for someone to avoid prosecution by simply saying they meant no harm.

"This was what we thought was the best public policy to protect the state," he said of the law as it is written. "I stand by it."