Ensuring that creeps will still be allowed to slip their camera phones under unsuspecting women's skirts, snap photos, then plaster them all over the Internet, Texas' highest criminal court struck down part of a law that would have banned “upskirt” photos this week. The Texas Court of Criminal Appeals ruled that banning "improper photography or visual recording," goes against First Amendment freedom of speech rights. It argued that photos taken without permission in public are protected, and went as far as to say that such a ban was "paternalistic" as it would attempt to regulate photographers' thoughts.
In the court’s 8-1 opinion Judge Sharon Keller wrote:
“The camera is essentially the photographer’s pen and paintbrush. A person’s purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.”
I guess it didn't occur to the judge that the area hidden beneath a person's clothing isn't public space. But who would expect a woman's right to her own bodily privacy to be a priority in a state that's famous for hacking away at pro-choice healthcare rights?
As the Houston Chronicle reported, "The case involved Ronald Thompson, who was charged in 2011 with 26 counts of improper photography after taking underwater pictures of clothed children—most wearing swimsuits—at a San Antonio water park. He appealed the law's constitutionality before his trial. He contended that a plain reading of the law would place street photographers, entertainment journalists, arts patrons, pep rally attendees and 'even the harmless eccentric' at risk of incarceration."
The Bexar County District Attorney's Office argued that a person's intent is important. If your plan is to do something unlawful, the First Amendment protections no longer apply. The court did not agree.
As Salon's Jenny Kutner put it:
"A legal scholar told the Chronicle that the court issued a sound ruling, saying that it 'cannot be made a crime in the United States' to look at someone in public and think lascivious thoughts about them. But such an analysis fundamentally misunderstands the difference between looking at someone in a public space and photographing them without consent. The thinking of lascivious thoughts is irrelevant, because that’s not what laws against taking 'upskirt' photos and other illicit creepshots are meant to prevent. They are meant to prevent the violation of people’s physical autonomy in public spaces; they are meant to prevent sexual harassment. Apparently, though, it’s not harassment when it’s just a surreptitious photo — that’s art."
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