Antigone v. Horne

Local bookseller takes on Arizona's 'nude photo law' as another example of our state's crazyland anti-First Amendment goodness

If you're going to look through a lawsuit against state Attorney General Tom Horne and this great state he represents, nothing warms a Baja Arizona heart more than seeing Antigone Books listed as the lead plaintiffs.

The lawsuit, filed by the American Civil Liberties Union Tuesday, Sept. 23, challenges the state's "nude photo law," a law that is or at least was intended to deal with revenge porn, but the way it is written, could make it a felony and a potential sex offense, to share any image of nudity or sexuality unless you have explicit consent from the person pictured.

And if you happen to be a bookseller or hell, even a newspaper, you just never know if the state could overreach in how it executes this new law. At least that's what Trudy Mills says she was thinking when she was contacted by the American Booksellers Foundation for Free Expression, another plaintiff in the lawsuit.

Mills, who co-owns the independent locally-owned bookstore, a Fourth Avenue institution for most of its 40 years in Tucson, says she didn't know about the law and its flaws until she was contacted by the foundation.

"While I'm hopeful the state is not going to overreach, the law isn't clear," Mills says.

"If we sell a picture with a nude image in it, the law says we should have known that the author or artist got permission or we could be subject to a felony, which seems absurd."

Photography books are one example Mills gives. As a bookseller she would have no idea if the person in the pictures gave permission. She understands the law's intent, but how it reads is another story, she says.

Joining Antigone and the Foundation for Free Expression in the lawsuit, is Tucson's Mostly Books and Bookmans, as well as Changing Hands Bookstore, Copper New Book Store, Voice Media Group (Phoenix New Times), the Association of American Publishers, the Freedom to Read Foundation and the National Press Photographers Association.

Mills kindly gives the state and the law the benefit of the doubt, but with nothing in the law about bookstores or libraries, she's concerned.

HB 2515, called the revenge porn law, went into effect July 24, making it a felony to post a nude photo of the ex a felony—a minimum of six months to a year in prison and a $150,000 fine.

The law prohibits "a person from intentionally disclosing, displaying, distributing, publishing, advertising or offering a photograph, videotape, film or digital recording of a person in a state of nudity or engaged in specific sexual activities if the person knows or should have known that the depicted person has not consented to the disclosure."

But what troubles Mills and the other plaintiffs is that the only areas protected from the law are "Interactive computer services," such as service providers or hosts, as well as law enforcement, legal proceedings, and medical treatment. Nothing about bookstores, libraries, publishers or newspapers.

A few examples provided in the lawsuit:

• A college professor in Arizona, giving a lecture on the history of the Vietnam War, projects on a screen the iconic Pulitzer Prize-winning photograph, "Napalm Girl," which shows a girl, unclothed, running in horror from her village.

• A newspaper and magazine vendor in Arizona offers to sell a magazine which contains images of the abuse of unclothed prisoners at Abu Ghraib.

• A bookseller in Arizona offers for sale the books, "Edward Weston: 125 Photographs" (Ammo Books 2011) or "Imogen Cunningham: On the Body" (Bulfinch 1998), each of which contains nude images.

• A library in Arizona provides computers with Internet access to its patrons and, because no filters could effectively prevent this result, the library patrons are able to access nude or sexual images.

Part of the problem with the law, outlined in the lawsuit, is that it isn't limited to pornography or obscene images, or digital speech: "It equally criminalizes posting another's private photograph on a widely-accessed Internet site, showing a printed image to one friend, publishing a newsworthy picture in a textbook, and including a nude photograph in an art exhibition."

We called Horne's office for further comment, but the only reply back was from the press office asking for more information about the lawsuit because it didn't sound familiar. We'll keep you posted on what happens next.

Mills says she's grateful for the ACLU to take the case on, since there's no way a "little store like ours would know where to begin."

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