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‘Revenge porn’ bill stalled by lawsuit; lawmaker proposes revisions

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Prompted by a lawsuit that has put the law on hold, a state lawmaker is proposing changes he hopes will please critics of his plan to keep people from sharing pornographic images and other media as revenge.

Rep. J.D. Mesnard, R-Chandler, said HB 2561 is a nod to objections raised by the ACLU of Arizona in a U.S. District Court lawsuit alleging that the so-called revenge porn law is overly broad.

In the suit, Antigone Books in Tucson made a First Amendment argument that the law could apply books containing newsworthy or artistic photos taken without a subject’s consent, such as a history of the Abu Ghraib prison in Iraq. The ACLU also raised concerns about images in which the subject’s identity isn’t clear.

Judge Susan Bolton stayed the lawsuit in November to give Mesnard the opportunity to make changes to the law.

Mesnard’s bill seeks to clarify that the law applies to a photograph, video or any other type of recording of anyone “who is identifiable from the image itself or from information displayed in connection with the image” and who is “in a state of nudity or engaged in specific sexual activities.”

“I will say that some of the arguments put forth in the lawsuit are ridiculous, but nevertheless certainly there are always ways to improve upon legislation,” Mesnard said.

The House Judiciary Committee unanimously endorsed the bill Wednesday, forwarding it to House floor by way of the Rules Committee.

Mesnard said that something of historical significance, of public interest or important to the political landscape would be illegal under the original law but legal under his proposed revision. As an example, he pointed to the scandal involving Anthony Weiner, the former U.S. representative from New York who destroyed his political career by sending a lewd photo of himself.

“Apparently people really want to see that, and maybe that has some relevance to society as a whole,” Mesnard said.

The bill also adds more specific definitions to the term “state of nudity.”

In response to a request for comment, Alessandra Soler, executive director of the ACLU of Arizona, shared a letter in which lawyers and representatives of Antigone Books told the House Judiciary Committee they continue to have concerns.

“While HB 2561 would remedy some of these infirmities, it does not address all of the infirmities, and the act, if amended by HB 2561, would remain unconstitutional,” the letter said.

Specifically, the letter said that even as amended the law would go far beyond addressing malicious invasions of privacy and criminalize “a substantial amount of material” protected by the First Amendment.

Mesnard expects further changes to the bill before it’s put to vote on the floor.

“I want to accomplish two things: I want something that will actually be upheld, that will be able to withstand legal scrutiny, but also I want something that is going to make a difference,” he said.