Privacy

Upskirt Photos, Free Speech, & Media Hysterics

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vlauria/Flickr

"Texas court upholds right to take upskirt photos," proclaimed headlines last week. And "Texas court says upskirt photos are art." To hear outlets such as The Guardian tell it, the state's court of criminal appeals held that a law banning "creepshots"—an umbrella term that includes both upskirts and "downblousing"—was a "'paternalistic' intrusion on a person's right to be aroused." Those skimming along at home would be forgiven for wondering how such an outrageous, privacy-disregarding decision came to be. 

The answer? It didn't—at least not in the way many media outlets have intimated. Techdirt's Mike Masnick points to the particular Texas statute in question, which says someone is guilty of "improper photography or visual recording" if they photograph, film, or otherwise record, broadcast, or transmit "a visual image of another at a location that is not a bathroom or private dressing room" without that person's consent and "with intent to arouse or gratify the sexual desire of any person."

The bold parts there are key. First, note that the decision has nothing to do with surreptitiously recording someone in a bathroom or dressing room stall, which is dealt with under another statute (and still perfectly illegal). It's the "intent to arouse or gratify sexual desire" part of the statute that the court found problematicly broad. Using such language, "this statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street," the court wrote

Ken White at Popehat delves further

How do we know it won't (be used to stop entertainment photographers)? We don't. We're supposed to rely on the discretion of cops and prosecutors. We're supposed to believe that when a statute allows the government to arrest and prosecute you for a wide range of conduct based on its subjective evaluation of your mental state, that they won't abuse it to go after people they don't like. But experience teaches that cops will, in fact, harass photographers given a chance.

But wait, you say. The Texas court didn't just say that! They said that upskirts are protected by the First Amendment! No. They didn't. In fact, they explicitly said they weren't saying that.

What the court did say is that 1) photography in general is protected by the First Amendment, and 2) the fact that a photo is designed to or may cause sexual arousal doesn't necessarily take it outside of First Amendment bounds. "Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought," the court noted, "and such a regulation is outside the government's power." 

This doesn't, however, mean that some forms of photography taken for sexual gratification purposes—such as upskirt photos—can't be criminalized. "The court explicitly suggests that a law banning upskirts may survive First Amendment analysis," White points out. From the court's decision: 

We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.

The court's position is merely that the Texas law as written infringes on the constitutionally protected rights of photographers, not that a more narrowly-tailored law against upskirt photos wouldn't be permissable. This is similar to a Massachusetts ruling on upskirt photo laws earlier this year. 

NEXT: Cops Take 'Highly Entertaining' Class to 'Win' Media After Shootings

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  1. All right …Ann-Margret and entourage are due here next week. I want someone to be there on the airfield and stick with her for a couple of days. Uh, Rafterman, you take it.

    RAFTERMAN

    Aye-aye, sir.

    LOCKHART
    Get me some good low-angle stuff. Don’t make it too obvious, but I want to see fur and early morning dew.

    RAFTERMAN
    Yes, sir.

    1. I’d rather see the downblouse pic on Ann-Margret!

  2. “this statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street,”

    Thus depriving the Daily Mail of half its content and a certain H&R poster of half his posts.

    1. “But, your honor, I took all these photos of the starlet in her bikini for a gay men’s magazine.”

  3. “But why did you risk prosecution in taking all those intimate photographs?”

    https://www.youtube.com/watch?v=nieszHz1itU

  4. “The court explicitly suggests that a law banning upskirts may survive First Amendment analysis,”

    I disagree. The mere presence of Benjamin Franklin at the Philadelphia Convention of 1787 allows us to assume that the First Amendment was written with the intention of protecting depictions of what’s up women’s petticoats, skirts, slips, and varied other products of corsetry.

  5. How do you enforce:

    “with intent to arouse or gratify the sexual desire of any person.”

    in a Rule 34 universe? I mean, if the photographer has a erection, you might be able to make a case, but you’re more likely to violate that taking pictures of “clothed” adult women at the beach or club, which wouldn’t violate this statute otherwise.

  6. The courts should rule whichever way makes it legal to take pictures of Christina Hendricks.

  7. Is this the thread where we post our creepshots?

    1. Yes. Yes it is.

      1. Well, I don’t have any creepshots since I’m not a sex offender like you. I can post some dick pics if you like though.

          1. Softies only plz

            Weirdo.

            1. Don’t start with the othering Mr. Shitlord.

    2. Well, obviously. Now get on with it!

    3. “Human photo safari”

      Get on board with the rebranding effort.

    4. Seems like it. Maybe some dick pics if the thread picks up.

      1. Well, obviously. Now get on with it!

          1. I’m impressed. You both managed to horrify me with the URLs alone.

            Stallman. *shudder*

  8. Every law with the phrase “with the intent to” should be stricken from the books.

    Either an action is illegal on its own merits or it’s not. The reasons for committing an act could, perhaps, be used to diminish or enhance a sentence (I’m straining to think of a case where it would, so I’ll leave it there) but they should never be used to determine if an otherwise legal act becomes illegal.

    1. The reasons for committing an act could, perhaps, be used to diminish or enhance a sentence (I’m straining to think of a case where it would, so I’ll leave it there)

      Manslaughter vs. murder?

      1. I was referring to laws that abolish behavior that is otherwise legal. It’s akin to hate crime billshit.

  9. This is similar to a Massachusetts ruling on upskirt photo laws earlier this year.

    Funny, I don’t seem to remember there being nearly as much furor over the MA ruling. I wonder why that is? Couldn’t possibly have anything to do with MA being a good TEAM BLUE proggie wonderland while TX is a TEAM RED conservative hellhole waging WAR ON WYMENZ, could it? Nah, that’s just crazy talk. I’m sure it’s just a coincidence.

  10. “”Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought,” the court noted, “and such a regulation is outside the government’s power.”

    Is the problem that the photos are for sexual gratifications or for the fact that they violate the privacy of the subject? I suppose a good rule would be that anything put “in plain sight” is fair game while shots requiring extraordinary measures to obtain are out of bounds.

    Though I suppose that means that any woman wearing provocative clothing and careless about her posture is “asking for it”.

    1. Agreed. And the difficulty of said about should be logically akin to “presumption of privacy”.

      IE – does a woman (or man) in public in a skirt have a presumption of privacy to what’s underneath?

      I’d say yes and would say the difficulty of getting said shot is up there.

      Whereas taking a picture of a woman in public in a skirt isn’t that difficult and therefore the presumption of privacy is low as well.

      Either way – tying it to intent is just stupid.

  11. Why can’t I get this out of my mind:
    ‘Marilyn’s Iconic Photo from “The Seven Year Itch”‘
    http://www.arts-stew.com/class…..year-itch/

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