09/23/2014
By Lee Rowland
Which of the following could land you a felony conviction in Arizona?
- Showing images of naked prisoners tortured at Abu Ghraib;
- Linking to the iconic Pulitzer Prize-winning photograph of “Napalm Girl,” showing an unclothed Vietnamese girl running from a napalm attack;
- Sharing a close-up photo of a woman’s breast with a breastfeeding support group;
- Waving a friend over to see a cute naked baby pic — like the one you see on this page.
Unfortunately, the answer is all of the above. That’s because Arizona recently passed a law that makes it a felony — and potentially a sex offense — to share any image of nudity or sexuality before you get consent from every person pictured.
Protecting personal privacy is, without doubt, a laudable goal. Indeed, the ACLU works tirelessly to protect your private data. But Arizona’s “nude photo law” is a seriously misguided attempt to achieve that goal. This new crime is broad and confusing. It applies to anyone who shares a nude image, not just to bad actors who intentionally invade another’s privacy. A prosecutor need not demonstrate that a person had an expectation of privacy in an image before charging you with a crime for sharing it. And the law applies equally to a private person’s hacked naked photo and a beautiful nude at a photography exhibit — because the law’s breadth encompasses truly newsworthy, artistic, and historical images.
As a result, the nude photo law creates bizarre and troubling burdens on speech fully protected by the First Amendment.
