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Ariz. Senate Rejects Obscenity Bill

'Dangerous Or Obscene Material Liability' proposal struck down

Ariz. Senate Rejects Obscenity Bill
PHOENIX - The Arizona Senate's Judiciary Committee has rejected a bill offered by the legislature's lower chamber that would have created legal liability for any person who knowingly or negligently "produces, publishes or distributes written, audio, video or digital material" that is "dangerous or obscene" and that "was a cause in another person committing terrorism or a felony offense against a victim."

Worse still, the bill, HB2660, would have created the same liability for any third party who "benefited from the production, publishing or distribution of the material."

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The proposed law, which is clearly unconstitutionally vague - the First Amendment prohibits any governmental body from creating liability for speech that is "dangerous" - was opposed by everyone from Hollywood TV and movie producers to newspaper publishers to authors of video games to groups involved in telecommunications and beyond.

State Sen. Jim Waring (R-Phoenix) postulated that if popular author Tom Clancy wrote a book detailing a fictional terrorist plot against Arizona citizens, and someone actually tried to put that plot into effect, causing injury to any state resident, Clancy would be "a big walking target" under the law.

Regarding the "obscenity" prohibition, while it continues to be illegal to sell obscene material in the state, the new law would have allowed anyone claiming to be a "victim of pornography" - no shortage of those among the nation's pro-censorship groups! - to sue not only the producer of whatever material was claimed to have caused the "victim" harm, but also the retailer and possibly the distributor of the material as well. Such entities would also be responsible for the "victim's" attorney's fees.

The bill is the brainchild of attorney Keith Perkins, who runs the Never Again Foundation, which provides legal representation for rape victims in civil suits. Perkins noted that while it's currently possible for rape victims to sue their attackers, they rarely collect any financial award because rapists are usually indigent. HB2660 would have added liability for damages to the producer and seller of any literary or cinematic (or, conceivably, audio) work that could be shown to have possibly inspired the rapist to commit his act.

In justifying his position in favor of the bill, Rep. Warde Nichols (R-Chandler) said that he felt that it will be necessary for the legislature to eventually alter the First Amendment protections of artists to write, film and record their fictional creations and the (alleged) rights of crime victims to sue them if some criminal claims to have been influenced by the work to commit his/her crime. Such alteration, however, can only be accomplished by amending the federal Constitution.

According to an article in the East Valley Tribune, while Perkins conceded that "the sale of these items may be legal," that doesn't mean "they are protected by the First Amendment or that those involved should be shielded from lawsuits to pay for all of the damages suffered by crime victims."

However, as First Amendment jurisprudence currently stands, it does mean that.






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Mark Kernes

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