Antigone Books v. Horne: Frequently Asked Questions

Some of our members, media organizations and local booksellers have filed a lawsuit challenging Arizona House Bill 2515, a law that criminalizes the distribution or disclosure of nude images without the consent of the person in the image. The lawsuit argues that H.B. 2515 violates the First Amendment because it criminalizes the distribution of constitutionally protected material.

Q1: What does the law do?
A: Arizona House Bill 2515 makes it a crime to publish, sell, loan or disclose images that include nudity without the consent of the person in the picture. There is an exception to the law for pictures that depict “voluntary exposure in a public setting” or were taken in a commercial setting. There are also exceptions to the law for the use of the images in law enforcement and in medical procedures.

Q2: Who is challenging this law?
A: The plaintiffs in the case are:

Q3: Why are they challenging the law?
A: The law violates the First Amendment by criminalizing photos and videos with artistic, educational, historic and otherwise newsworthy value but were published or distributed without the consent of the person depicted or consent could not be obtained. These photos are created and distributed by news photographers, produced by publishers, distributed at bookstores and libraries, and viewed by the general public. In addition to violating the First Amendment, the law will cause a substantial “chilling effect” on booksellers, librarians, publishers and photographers who will be afraid to exercise their free speech rights out of fear of being prosecuted. We believe that journalists, publishers, booksellers and librarians should not fear going to jail for producing and distributing material protected by the Constitution.

Q4: What are some examples of pictures that could be subjected to this law?
A: Here are examples of situations that could result in someone going to prison:

  • A college professor showing the “Napalm Girl” photo during a lecture about the Vietnam War;
  • Vendors selling a newspaper that includes images of the abuse of nude prisoners at Abu Ghraib;
  • A photographer showing an editor images he or she took of unclothed victims of a natural disaster, even if the photo is not used in publication;
  • Retweeting a story that includes Anthony Weiner’s photos of himself;
  • Bookstores or libraries carrying the collections of nude images from renowned photographers, like Edward Weston: 125 Photographs or Imogen Cunningham: On the Body;
  • A person buying or borrowing one of the aforementioned books and giving it to someone as a gift;
  • Museums showing an exhibit on photos of auctions of slaves including photos of women who do not wear clothes;
  • A woman showing to her friend an unsolicited nude photo she received on her cell phone.

Q5: Why is the law unconstitutional?
A: In legal terms, the law is an overbroad content-based restriction on speech that criminalizes a substantial amount of material that is fully protected by the First Amendment. It is not narrowly tailored to the state’s interest in protecting the privacy of those depicted in the images.

Q6: Is it a serious offense if you break the law?
A: Yes. Anyone who breaks the law could be sentenced to almost four years in prison for each image and could be forced to register as a sex offender. A bookseller who is forced to register as a sex offender would also lose his or her business license.

Q7: What can booksellers and librarians do to comply with the law?
A: The threat of going to prison means every bookseller and librarian is responsible for every book, magazine newspaper and video they carry. To follow the law, they would have to review each picture in every book and magazine they carry, which would be an almost impossible task. They would also have to determine whether each picture violates the law, without knowing the circumstances surrounding each photograph. Many booksellers and librarians will decline to carry material that includes nude images, rather than risk prosecution, even though they have a constitutional right to sell this material.

The law also affects their customers and patrons. If booksellers and librarians are forced to remove any material that includes a nude photo, customers and patrons are deprived of their right to purchase and borrow these materials. That means you would not be able to purchase an issue of National Geographic at the bookstore and you won’t be able to borrow art books that include nude images from the library.

Q8: Are there any other problems with the law?
A: The law is vague in three important ways. There is no definition of “consent.” It doesn’t explain if the consent stays with the image or with the person depicted in the image. In other words, must consent be obtained each time a picture is published or disseminated? Similarly, the law does not explain if consent can be withdrawn after a photo was published. This lack of clarity means a publisher or bookseller cannot rely on consent to be in a picture as consent to distribute the picture.

The law makes it a crime to disclose a picture that was published without consent but does not define what disclose means. The dictionary definition of “disclose” means to make knowledge of something known to another person. Using this definition, merely posting a link to an article that includes such photos would be illegal.

Finally, there is an exception to the law for photos of someone “voluntarily in a public setting.” The law does not say if this refers to a person who is voluntarily in public or someone who is voluntarily nude in public. Also, it does not define what it means to be in public.

Q9: Would prosecutors really imprison news photographers, booksellers, librarians or publishers under a law intended to criminalize “revenge porn”?
A: A law’s good intention does not remove the risk that a news photographer, bookseller, librarian or publisher could be unfairly targeted under this law by an overzealous prosecutor. Even if the state assures that the law would not imprison people beyond those who post photos for revenge, it still violates people’s First Amendment rights. As Supreme Court Chief Justice John Roberts wrote in a recent First Amendment case, “We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.” (United States v. Stevens, 130 S.Ct. 1577, 1591 (2010)).

Q10: What’s the problem with requiring someone to ask for permission before they publish your photo?
A: There are many images published without the consent of the person in the photo. In some cases, a person may not want the picture published but it is on a matter of public importance like the pictures of Anthony Weiner. In other cases, like war or natural disasters, a photographer or publisher may not be able to obtain a person’s permission, such as the Pulitzer Prize-winning photo of the “Napalm Girl,” which depicts a girl running unclothed as she flees from her village. There are other times when the person depicted in the photograph is unable to give permission, as is the case if the person is deceased. Finally, there are instances where consent may be impossible to prove, such as historic images of indigenous tribes or photos taken by photographers who are now deceased.

Q11: What’s wrong with a law that bans “revenge porn”?
A: States can address the problem of a scorned lover who maliciously posts private images of an ex online, often alongside her personal details. There are horror stories about women who have suffered from this harassment. However, this law goes far beyond these efforts to humiliate an ex. It isn’t limited to photographs disclosed by lovers. It isn’t limited to photographs that are published in an attempt to humiliate the person in the photo or to damage his or her personal or professional relationships. The law is not limited to private images taken when the person in the picture had a reasonable expectation of privacy. It isn’t even limited to images where the person in the picture can be identified.

Q12: If the court rejects this law, is there anything that can be done about someone publishing pictures for revenge?
A: There are existing laws that can be used to prosecute “revenge porn” without violating the First Amendment.

Harassment and stalking can be used to prosecute many of the offenders for disrupting the life of the person in the picture or making her or him feel threatened by publishing personal information or encouraging others to contact her or him.

There are laws to prosecute anyone who hacks someone’s email or Internet account to steal these pictures.  The most notorious of these “revenge porn” website owners was indicted earlier this year by the federal government for hacking and identity theft. In another case, a California man who operates one of these websites is being prosecuted for extorting money from people to have their images removed from his website.

“Peeping Tom” laws could be used to prosecute anyone who captures a nude image by spying using technology or in a location we generally assume is private.

Taking, posting or possessing nude photos of anyone under 18 is already illegal under child pornography laws if the pictures are sexually oriented.

Q13: Is there anything else a victim can do?
A: If you take a picture of yourself, a “selfie,” you can make a copyright claim to have the photo removed from publication. Under copyright law, the person who took the picture can make every website remove it. The Arizona law does not apply to websites that host these pictures unless the people who run the site posted it. So Tumblr, Instagram and other hosting sites cannot be forced to remove the photo under the Arizona law but can under copyright law. A recent article in The Washington Post explained why copyright law is the best tool to get pictures removed from websites.

Victims of “revenge porn” can also file a civil suit against the person who posted their photos. Earlier this year, a Texas woman was awarded half a million dollars for “emotional distress” after her photo was posted on a “revenge porn” website. In another case, a judge ordered an “indefinite lock” on a revenge porn website due to a civil lawsuit.

Q14: Have other states passed “revenge porn” laws?
A: Other states have passed laws to address this problem, but they are more narrowly focused on malicious disclosures of private images of an ex-lover intended to harass and humiliate the other person. These state laws also exempt images that are newsworthy. Again, this law does is much broader and does not have these limitations.