On Friday, July 10, a federal judge in Phoenix permanently blocked Arizona officials from enforcing a 2014 law restricting the display of nude pictures in books, newspapers, magazines, and on the Internet.
The judge approved a jointly agreed upon settlement between the Arizona attorney general and a coalition of Arizona booksellers, book and newspaper publishers, librarians, and photographers, who filed a lawsuit challenging the law. The order resolves all claims in the lawsuit Antigone Books v. Brnovich and states that the plaintiffs are entitled to attorney’s fees.
“This is a complete victory for publishers, booksellers, librarians, photographers, and others against an unconstitutional law,” said Media Coalition Executive Director David Horowitz, whose members include plaintiffs in the suit. “Now they won’t have to worry about being charged with a felony for offering newsworthy and artistic images.”
Five bookstores were plaintiffs in the case: Antigone Books in Tucson; Bookmans, which has stores in Tucson, Phoenix, Mesa, and Flagstaff; Changing Hands Bookstore, which has locations in Tempe and Phoenix; Copper News Book Store in Ajo; and Mostly Books in Tucson. The American Booksellers for Free Expression (ABFE) was also a plaintiff.
“Booksellers played an important role in this case by demonstrating to the judge the broad range of titles that would be affected by the law,” ABFE Director Chris Finan said. “They showed great courage in defending First Amendment rights.”
The law, Arizona Revised Statute 13-1425, was initially passed with the stated intent of combating “revenge porn,” a term popularly understood to describe a person’s malicious posting of an identifiable, private image online with the intent and effect of harming an ex-lover.
But, as the plaintiffs maintained in their suit, the law wasn’t limited to revenge and it criminalized far more than offensive acts. The statute could have led to the conviction of someone posting a nude photo with no intent to harm the person depicted. This would include, for example, an artistic photographer who creates an anthology of his images of nudes — as well as the book’s publisher and seller or a librarian.
Likewise, a person sharing a photograph could have been charged with a felony even if the subject depicted had no expectation that the image would be kept private and suffered no harm. As a result, the law applied to any person selling a nude image, no matter how newsworthy, artistic, educational, or historic.
“This is an important vindication of the First Amendment and a great resolution for our clients,” said ACLU Staff Attorney Lee Rowland, who, along with lawyers from the ACLU of Arizona and Dentons US LLP, represents the plaintiffs. “We commend the state for agreeing not to enforce a broad statute that chilled and criminalized speech unquestionably protected by the Constitution.”