Bookstores, Publishers File Suit to Protect Free Speech in Arizona

The American Booksellers Foundation for Free Expression and five independent bookstores are among the plaintiffs in a lawsuit filed in federal court on Tuesday, September 23, challenging a new Arizona law that makes the display, publication, or sale of nude or sexual images without the subject’s explicit consent a felony punishable by nearly four years in prison. The bookseller plantiffs include 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.

Arizona Revised Statutes Section 13-1425, which was passed with the intent of combating “revenge porn,” criminalizes far more than these offensive acts, the groups said. The law could be applied to any person who distributes or displays an image of nudity — including those that are newsworthy, artistic, educational, or historic — without the depicted person’s consent, even if consent is impossible to obtain or is difficult to prove.

The plaintiffs, who are represented by the ACLU and the Media Coalition, noted that a bookseller who sells a history book containing an iconic image such as the Pulitzer Prize-winning photograph “Napalm Girl,” the unclothed Vietnamese girl running from a napalm attack, could be prosecuted under the Arizona law. A library lending a photo book about breast-feeding to a new mother, a newspaper publishing pictures of abuse at the Abu Ghraib prison, or a newsweekly running a story about a local art show could all be convicted of a felony.

“This law puts us at risk for prosecution,” said Changing Hands co-owner Gayle Shanks. “There are books on my shelves right now that might be illegal to sell under this law. How am I supposed to know whether the subjects of these photos gave their permission?”

David Horowitz, executive director of the Media Coalition, stressed that the law will have a chilling effect on free speech. “To comply with the law, booksellers and librarians will have to spend countless hours looking over books, magazines, and newspapers to determine if a nude picture was distributed with consent,” he said. “Many store owners will simply decline to carry any materials containing nude images to avoid the risk of going to prison.”

ABFFE President Chris Finan said, “Threatening booksellers with a felony conviction for distributing books that include nude images clearly violates the First Amendment. States can address the problem of revenge porn, but they can’t infringe on the right of free speech in doing so.”

Under the law, a prosecutor need not prove that the person publishing the photograph intended to harm the person depicted. Likewise, a person who shares a photograph can be convicted of a felony even if the person depicted had no expectation of privacy in the image and suffered no harm. The law applies even when the person in the picture is not recognizable. And the law is not limited to “porn” — it criminalizes publication of nude and sexual images that could not possibly be considered pornography, let alone obscene, the plaintiffs said.

The case, Antigone Books v. Horne, is available on both the Media Coalition and ACLU websites.

Other plaintiffs in the the case include Voice Media Group, the Association of American Publishers, the Freedom to Read Foundation, and the National Press Photographers Association.