Arizona’s Naked Photo Law Makes Free Speech a Felony

Which of the following could land you a felony conviction in Arizona?

1. Showing images of naked prisoners tortured at Abu Ghraib;
2. Linking to the iconic Pulitzer Prize-winning photograph of “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack;
3. Sharing a close-up photo of a woman’s breast with a breastfeeding support group;
4. Waving a friend over to see a cute naked baby pic — like the one you see on this page.

Unfortunately, the answer is all of the above. That’s because Arizona recently passed a law that makes it a felony — and potentially a sex offense — to share any image of nudity or sexuality before you get consent from every person pictured.

Protecting personal privacy is, without doubt, a laudable goal. Indeed, the ACLU works tirelessly to protect your private data. But Arizona’s “nude photo law” is a seriously misguided attempt to achieve that goal. This new crime is broad and confusing. It applies to anyone who shares a nude image, not just to bad actors who intentionally invade another’s privacy. A prosecutor need not demonstrate that a person had an expectation of privacy in an image before charging you with a crime for sharing it. And the law applies equally to a private person’s hacked naked photo and a beautiful nude at a photography exhibit — because the law’s breadth encompasses truly newsworthy, artistic, and historical images.

As a result, the nude photo law creates bizarre and troubling burdens on speech fully protected by the First Amendment.

For proof that this law goes way too far and criminalizes innocent and valuable speech, you need look no further than the august group of bookstores, newspapers, photographers, publishers, and librarians that challenged the law together today (web page on case and complaint). Many of them belong to our stalwart First Amendment allies at the Media Coalition, whose members include the plaintiff associations of publishers, librarians and booksellers. Represented by the ACLU and Dentons US LLP, the plaintiffs just want to be able to offer books, art, news, and history without risking a criminal conviction in Arizona. That doesn’t seem too much to ask.

Proponents of the law indicated that it was intended to address the harms of “revenge porn” — a digital phenomenon typified by a scorned lover who maliciously posts private images of an ex online, often alongside her personal details. The harms of such conduct can be very real, and they predominately impact women. There are true horror stories about women who have suffered extreme humiliation and harassment, had intimate photos sent to relatives and coworkers, and lost job opportunities.

States can address these harms without treading on free speech, if and only if those laws are tailored to addressing malicious invasions of privacy. Arizona’s is not. And we’re not going to blindly trust that the government will apply this broad law responsibly, only against the “bad guys.” The photo above literally illustrates why.

One of the plaintiffs in our lawsuit, the Voice Media Group, publishes the newsweekly Phoenix New Times. The New Times published a series of images from a local art show by Arizona artist and Arizona State University Professor Betsy Schneider. One of the images from that art show is the great image above – documenting a month in Schneider’s infant son’s life.

Maricopa County publicly considered opening a police investigation into the New Times’ publications of these images, after police requested an investigation. A Phoenix city attorney told the press that if the photos were found to be illegal, “Everybody who picked up one those issues [of the New Times] could be prosecuted for possessing child pornography.” That’s what can happen when law enforcement officials wield problematic laws as broadly as they’re written.

The First Amendment just doesn’t permit that kind of carelessness. Laws meant to address real horrors need to do just that – without serving as Trojan Horses that erode our hallowed free speech rights.