Tag Archives: obscenity

Arizona Obscenity Law 40 Years After The Last Picture Show Ban

I had a discussion with a family member over the phone the other day about modern movies and obscenity.  “Joe, have you heard about the movie 50 Shades of Grey coming out?” Because of my female friends and acquaintances I have some passing familiarity with the subject matter.  “Do you think it could be considered obscenity?  Some people are saying it is kinda like pornography for women.” Inquired my family member.  Well that is some food for thought…

It turns out that city of Phoenix has banned a movie before because of obscenity.  Could it try to do it again?  Using the movie 50 Shades of Grey as an example, I will analyze if a commercial movie with national appeal could be considered obscenity or not.

Phoenix’s Last Picture Show Ban

Almost forty-one years ago, the city of Phoenix, Arizona banned The Last Picture Show from its theaters because of obscenity. BBS Productions, Inc v. Purcell, 360 F. Supp 801 (D. Ariz 1973). The Phoenix City Attorney objected to “total frontal nudity of a female swimmer,” lasting approximately four seconds. Id. Apparently the scene in question involved Cybil Shepherd skinny-dipping.  The film received an R (restricted) from the MPAA (Motion Picture Association of America).  The Phoenix City Attorney said the film could be played if that four seconds of nudity was deleted from the film.  Id. Phoenix claimed the movie violated Ariz. Rev. Stat. § 13-537 (1971), which defined and banned obscenity.  “It is unlawful for any person knowingly to place explicit sexual material upon public display, or knowingly to fail to take prompt action to remove such a display from property . . under his control after learning of its existence.”  Id. (quoting Ariz. Rev. Stat. § 13-537 (1971)).

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Revenge Porn Legislation

Technology allows scorned lovers to easily extract retribution by posting nude photos or videos with the intent to humiliate.  Arizona is among the many states whose legislature has proposed bills to outlaw ‘revenge porn.’  The Arizona bill would make it unlawful to:

[K]nowingly disclose, display, distribute, publish, advertise or offer a photograph, videotape, film or digital recording or other reproduction of another person in a state of nudity or engaged in a sexual act without obtaining the written consent of the depicted person.

The language of each bill is different, which in turn effects how it is implemented. As some critics have noted this particular bill does not allow for any exceptions.  It precludes revenge porn in all circumstances.  University of Arizona law professor Derek Bambauer, says the the bill is “almost certainly” unconstitutional because of the breadth of the scope.  For example, if former Rep. Anthony Weiner did not release the picture of underwear-covered genitals, and instead a journalist broke the picture and the story it may be illegal under this proposed law.  This piece of legislation could violate the First Amendment by restricting the Press’ ability to report on issues of public concern.

A personal concern I have of the legislation is that the bill only requires written consent.  Probably just mere consent is too low of a standard because it does not take into account a person’s knowledge of how the picture will be used.  A better standard might be informed consent of the scope of use.  This would cause the subject of the photos to be educated about the intended use.  There is a saying that the internet is forever.  It can be impossible to erase something off of the internet once it is posted, and as technology continues to advance to make it easier to post things online this can be a vexing problem for revenge porn.  That is why it is important that a person understands what will be done with the photos when consenting, rather than just giving consent itself.

This is a relatively new phenomenon and the constitutionality of legislation outlawing revenge porn is currently being debated by legal academics. I think it will be really interesting to see how privacy concerns are addressed with the First Amendment when dealing with revenge porn.