2:14cv2100 (D. Ariz. July 10, 2015)
Summary
In July 2015, U.S. District Court Judge Susan Bolton permanently ordered Arizona state prosecutors to halt enforcement of a law that criminalized distribution of nude photos without the consent of the person depicted in the photo.
The order approved a joint final settlement between the Arizona attorney general and the plaintiffs, resolving all claims in the lawsuit and stating that the plaintiffs are entitled to attorney’s fees.
Previous case name: Antigone Books v. Horne
History
Arizona enacts H.B. 2515
On April 30, 2014, Arizona Gov. Jan Brewer signed House Bill 2515 [7] into law. It made it a crime to “intentionally disclose, display, distribute, publish, advertise or offer” an image or recording of another person in a state of nudity or engaged in sexual activity, if the person knows or should have known that the depicted person has not consented to the disclosure of the image.
Media Coalition files lawsuit
On September 23, 2014, Media Coalition and the ACLU filed a lawsuit [2] on behalf of some Media Coalition members, Arizona booksellers and other media organizations, challenging the constitutionality of the law.
The plaintiffs are: Antigone Books, Intergalactic (d.b.a. Bookmans), Changing Hands Bookstore, Copper News Book Store, Mostly Books, American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, Voice Media Group and National Press Photographers Association
The complaint argues that the law violates the First Amendment because it is an overbroad content-based restriction on speech. It criminalizes a wide range of newsworthy, artistic, educational and historical images, such as:
- The Pulitzer Prize-winning photograph, “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack
- Newsworthy images such as the videos and images of prisoners in Abu Ghraib and Anthony Weiner‘s photos of himself
- Artistic images from renowned photographers, such as Edward Weston, Imogen Cunningham and Robert Mapplethorpe
Publishing, distributing or lending these photos would be a felony under the new law, punishable by almost four years in prison. The law forces booksellers, publishers, photographers and librarians to risk going to prison or engage in self-censorship, even though these images are all protected by the First Amendment.
On November 3, 2014, the plaintiffs filed a motion for preliminary injunction [4], asking the U.S. District Court to block enforcement of the law while the lawsuit is pending.
Court stays enforcement of the law
On November 26, 2014, Judge Bolton entered an order [5] staying enforcement of the Arizona law, pending the state legislature’s possible reconsideration of the law. The order also puts the lawsuit on hold. It was issued at the joint request of the Arizona attorney general and the coalition of Arizona booksellers, book and newspaper publishers, librarians and photographers challenging the law.
Legislature considers amendment
On February 24, 2015, Rep. J.D. Mesnard introduced Arizona House Bill 2561, which would amend the existing nude photo law. The bill addressed some but not all of the concerns raised in the lawsuit. The Arizona House passed the bill on March 3, 2015 and sent it to the Senate for consideration.
The Senate amended the bill, but it still did not address all of the constitutional issues raised in the lawsuit. The Senate passed their version of the bill on March 31, 2015.
The Arizona House and Senate went to a conference committee to resolve the differences in the bill. The bill was amended to limit the law’s application to photos where the person is identifiable and had a reasonable expectation of privacy and distributed with the intent “to harm, harass, intimidate, threaten or coerce” the person in the photo. The House passed the new version of the bill on April 2, 2015. However, the Arizona Senate adjourned before passing the new version of the bill.
Settlement reached
Judge Bolton issued an order staying enforcement of the law, as both parties continued to discuss the next steps in the litigation. On May 18, 2015, the plaintiffs renewed their motion for a preliminary injunction and asked the court to continue the stay of the law’s enforcement, in order to give the parties an opportunity to explore settlement possibilities. Judge Bolton granted the extension on the stay [6], setting the oral argument at August 31, 2015 if a settlement is not reached.
The Arizona attorney general and the plaintiffs agreed to a joint final settlement, resolving all claims in the lawsuit and stating that the plaintiffs are entitled to attorneys’ fees. Judge Bolton signed the final decree on July 10, 2015, which permanently ordered [1] Arizona state prosecutors to halt enforcement of the law.
Arizona passes new law
On March 11, 2016, H.B. 2001 was enacted replacing the law that was permanently blocked by Judge Bolton. The new law includes an intent to harm element.