State asks judge to toss challenge to ‘revenge porn’ law

Attorneys for the state are asking a federal judge to throw out a challenge to the state’s new “revenge porn” law.

Assistant Attorney General David Weinzweig is arguing there is no legal basis for the lawsuit. He said the state is looking at a series of defenses, including that no one has been charged with breaking the law or is even being threatened.

Weinzweig also told U.S. District Court Judge Susan Bolton there are other legal problems with the claim filed last month by the American Civil Liberties Union on behalf of bookstores. That includes his contention that the lawsuit is about a purely political issue and seeks to involve the courts “in areas of government reserved to the legislative and executive branches.”

But ACLU attorney Lee Rowland said it’s not necessary for a bookstore owner, photographer, librarian or newspaper publisher to get arrested to challenge the law. And she brushed aside Weinzweig’s contention that the question is strictly political and beyond the reach of the courts.

“This is a First Amendment case,” Rowland said. “This is fundamentally about constitutional rights and whether or not our plaintiffs’ rights are being violated by this broad law. That is emphatically a question for the courts.”

Whether Bolton accepts any of that remains to be seen.

The law approved earlier this year makes it a felony to “intentionally disclose, display, distribute, publish, advertise or offer” a photo, video, film or digital recording of someone else who is naked “if the person knows or should have known that the depicted person has not consented to the disclosure.” The legislation covers not just images of nudity but also anyone engaged in any sex act.

Offenders could end up in prison for up to 2 1/2 years — or 3 3/4 years if the person is recognizable.

The target is so-called “revenge porn” where someone may have taken a compromising photo during a relationship that was not meant to be shared with others. Rep. J.D. Mesnard, R-Chandler, who sponsored the measure, said it becomes an entirely different situation when the relationship ends, often badly, and the images get posted online.

“As technology changes, people invent new ways of hurting folks,” he said.

The challengers, however, have other concerns. Rowland said the law is overly broad and can make criminals out of those who sell, display or simply show images of others who are naked but have not granted specific written permission. Of particular concern, Rowland said, are art books that may have a photo of someone who is no longer alive, meaning there is no way for a bookseller to know if permission was granted.

And she said it is not necessary to wait until someone has been arrested to challenge the law. She said the law itself has a “chilling effect” that courts have said provides legal standing.

“The plaintiffs have to reasonably fear that their actions could bring them within the scope of the law which here I believe we’ve amply demonstrated,” Rowland said. She said that results in a form of self-censorship where they do not sell or display certain items because of a fear that some prosecutor may bring felony charges against them.

Beyond the question of booksellers and others, Rowland said the law is so broad that a mother who shows a naked photo of her baby to a neighbor also could be charged with breaking the law.

No date has been set for Bolton to consider the issues.