The proposal, HB 26606, would have amended Arizona law to state that “a person is liable for damages if the person produces, publishes or distributes written, audio, video or digital material and ... the material is dangerous or obscene [and] the person benefited from the production, publishing or distribution of the material [and] the person knew, should have known or recklessly disregarded a significant risk that the material would substantially assist, encourage or result in another person committing terrorism or a felony offense [and] the material was a cause in another person committing terrorism or a felony offense against a victim.”
The bill failed by a 4-2 vote in the Judiciary Committee, after passing the state’s House of Representatives by 36-23 vote in late March.
Under the bill, “dangerous” material was defined as “material that is found by clear and convincing evidence to incite or produce an imminent act of terrorism or a felony offense,” while the definition of “obscene” material mirrored the three-prong Miller Test for obscenity.
Several senators expressed concern about the bill’s constitutionality, saying that its wording was vague and overly broad.
“[T]his bill is so broad based ... we have to be careful about unintended consequences,” said Sen. Ken Cheuvront, D-Phoenix.
The bill was sponsored in the House by Rep. Warde Nichols, R-Gilbert, and written by Chandler-based attorney Keith Perkins, who runs the Never Again Foundation, a group that represents victims of rape in civil lawsuits.
In addressing questions from critics of the bill concerning its scope, Perkins said that the line separating what materials could and could not be said to have contributed to crimes might have to be sorted out in court on a case-by-case basis.
Sen. Ron Gould, R-Havasu City, asked about “The Turner Diaries,” a novel by white supremacist author William Luther Pierce in 1978, which depicts a violent revolution in the U.S. that includes a section in which a character blows up a federal building with a homemade explosive.
Timothy McVeigh, who was convicted of 1995 bombing the Alfred P. Murrah federal building in Oklahoma City, had excerpts from “The Turner Diaries” in his possession when he was arrested, and was known to have sold copies of the book at gun shows.
Nichols said that he did not believe that the publishers of “The Turner Diaries” would be liable under his bill, but he would not rule out the possibility that some rappers could be targeted if their raps included lyrics about rape and murder.
“If it is promoting and persuading someone to commit a felony … then I have no problem holding them accountable, as well,” Perkins said.
Perkins said that producers of pornography would not be targeted under the law, so long as what their work portrayed was consensual sexual activity.
“There is nothing in there designed to persuade somebody to go out and commit a felony,” Perkins said. “The stuff that we’re talking about here is the violent, nonconsensual, brutal, tortuous, I-will-take-you-regardless-of-what-you want [material].”
Attorney Jeffrey Douglas, chairman of the Free Speech Coalition, told XBIZ proposals similar to 2660 have been made many times throughout the years, and have consistently failed to stand up to legal challenge.
“There are so many problems with the attempt to establish a causal chain,” Douglas said. “The bottom line is that imposing liability on a company not because of their own action, but because of the effect that their products might have on a third party … that’s just never going to fly. There’s no amount of embroidery, and no amount of bullshit disclaimers — like ‘it wouldn’t apply to depictions of consensual sex’ — that will make it fly.”
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