The ACLU sued on behalf of several bookstores and publishing associations, the owner of the Village Voice and 12 other alternative newsweeklies nationwide, and the National Press Photographers Association.
The groups sent Mesnard and legislative leaders a letter early this month suggesting changes to the law to address its concerns that the law was overly broad. …
“In our view, we’re just trying to ask them to add some elements that first of all protect the media with respect to images that are important historically or have news value or artistic image,” said David Horowitz, executive director of the Media Coalition, whose members include publishers, librarians and booksellers. “And trying to really focus this again on the kind of malicious invasion of privacy everyone agrees is bad behavior.”
The letter suggested that Mesnard change the law to narrow its scope to address only “revenge porn” without interfering with free speech rights. Specifically, they don’t want it to apply when the publication was in the public interest or newsworthy.
And they want it to apply only to someone who was in an intimate relationship and displays a photo that their partner expected would be private with the intent to embarrass, harass or otherwise harm the person.
Mesnard said that language would be a deal-breaker because of the need to prove intent to harm, which he said would create “a big old loophole.”
“Newsworthy,” like “in the public interest,” is a subjective test that state actors could use to decide whom to arrest and whom not to. As Professor Neil Richards has written, “The power to declare facts or topics to be off limits to public discussion is in a very real sense the power to censor[.]”
Criminalization advocate Danielle Citron agrees with the Arizona plaintiffs and disagrees with Arizona Republican Representative J.D. Mesnard:
Revenge porn laws should also make clear that to win a conviction, prosecutors must show that the poster of the revenge porn intended to do harm.
There’s going to be a “big old loophole” in any revenge-porn statute; that loophole is called “free speech.” It is not possible to “address only ‘revenge porn’ without interfering with free speech rights.”
If the statute requires an intent to harm and has a newsworthiness or public-interest exception, it may be narrow enough to satisfy the booksellers’ interests, but it’s still going to be unconstitutional. “Everyone agrees it’s bad behavior” is not a category of unprotected speech.
Shame on the ACLU if they put their imprimatur on such a statute.