PHOENIX — Arizona is headed back to federal court to defend a possibly unconstitutional law designed to protect people from their former lovers.
State lawmakers approved changes to a so-called “revenge porn” bill in the final days and hours of the legislative session, modifications intended to head off a lawsuit filed over last year’s version of the law.
But the Senate never acted on the final version of the measure before going home early Friday morning. So the fix crafted by Rep. J.D. Mesnard, R-Chandler, never got enacted.
That sends the case back to U.S. District Judge Susan Bolton, who agreed in November to give lawmakers time to fix what challengers said are legal problems with the original law. In the interim, the Attorney General’s Office had agreed not to try to enforce the statute.
Mesnard said Wednesday he believes the changes would have satisfied the challengers and made the lawsuit go away.
But all that is academic, as the failure to act means the measure remains in the form the American Civil Liberties Union and others found flawed.
What’s next is unclear.
ACLU attorney Lee Rowland noted that when Bolton put the case on hold last year, she told both challengers and the state that if a fix failed, they should get together and report to the judge.
“We’re evaluating our options,” Rowlands said.
Mesnard said he believes the original version of the law is legally defensible, even though the Attorney General’s Office did agree not to try to enforce it while negotiations were taking place.
“Our office is prepared to defend the law,” said Attorney General Mark Brnovich, who took over in January.
But Brnovich said he would prefer the law be fixed ahead of a full-blown trial. He promised to work with legislators and those who filed suit “in the hope that they can resolve ambiguities in the statute and avoid unnecessary litigation.”
The law approved last 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 2½ years — or 3¾ years if the person is recognizable.
The target is “revenge porn” in which someone may have taken a compromising photo during a relationship that was not meant to be shared with others. Mesnard said it becomes an entirely different situation when the relationship ends, often badly, and the images get posted online.
The ACLU and a private law firm representing booksellers sued, charging the law would make criminals out of those who sell, display or simply show images of others who are naked but have not granted specific permission.
Rowland said the result is a “chilling effect” on merchants, causing them to pull books from their shelves for fear prosecutors will use the law against them. She said the law is so broad a mother who shows a naked photo of her baby to a neighbor could be charged.
The deal approved in November by Bolton is based on a promise by Robert Ellman, who was then the state’s solicitor general, not to use the new law while efforts to rework it are underway. County attorneys also signed the agreement.
The changes would have tightened up on who could be prosecuted.
Aside from saying a person has to be naked or engaged in sexual activity, prosecution could take place only if the person had a “reasonable expectation of privacy” and that the image was disclosed “with the intent to harm, harass, intimidate, threaten or coerce the depicted person.”
It also would have limited “harm” to physical injury, financial injury or “serious emotional distress.”
