Texas Court Makes Upskirts Mandatory, Outlaws Kittens, Hates Your Mother

Surely you've heard about this. A Texas court — full of old men, reeking of misogyny — has ruled that taking upskirt photos of unwilling women is free speech protected by the First Amendment!

How ridiculous! How despicable!

I mean, at least — that's what I think happened, based on how the story has been reported and talked about.

Consider, say — the Mary Sue, a really very good blog that deals with how pop culture treats women. Here's how they headlined and wrote about it:

Kansas City, Missouri May Soon Outlaw Catcalling; Texas Lifts Proposed Ban on Upskirt Photos

. . .

Just this week, Texas’ highest criminal court threw out a state law banning “improper photography” like upskirts and other invasive images taken without consent —in a decision ostensibly meant to protect “free speech” that will just protect perpetrators instead.

You think a blog is a bad example? OK, take The Guardian:

Texas court upholds right to take 'upskirt' pictures

A court has upheld the constitutional right of Texans to photograph strangers as an essential component of freedom of speech – even if those images should happen to be surreptitious “upskirt” pictures of women taken for the purposes of sexual gratification.

It's not all progressives. Look at Breitbart:

Texas Court: Ban on 'Upskirt' Photos Violates First Amendment Rights

HOUSTON, Texas — Texas' highest criminal court threw out a law on Wednesday banning "improper photography in public." Banning such photography, which includes "upskirting" or "downblousing" for the purpose of sexual gratification, would be considered a violation of free speech.

Or, on the other side, Salon:

Texas court throws out “upskirt” photo law, because banning creepshots is “paternalistic”

Texas’ highest criminal court struck down part of a law banning “upskirt” photos on Wednesday, arguing that photos taken without permission in public are entitled to First Amendment protections. Outlawing “improper photography or visual recording,” the Texas Court of Criminal Appeals panel ruled, would be a violation of federal free-speech rights and a “paternalistic” effort to regulate the photographers’ thoughts.

If you read those articles — if you read most of the coverage of this decision — you would conclude that (1) Texas had a law banning upskirt photos, and (2) a Texas court struck down the law because upskirt photos are protected by the First Amendment and can't be banned.

Or, you could, you know, read the actual court decision to see what the court said. Mike Masnick at Techdirt did so, and found that the decision didn't much resemble its coverage.

First, take the statute that was at issue. It's Texas Penal Code section 21.15(b)(1).

(b) A person commits an offense if the person:

(1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

(A) without the other person's consent; and

(B) with intent to arouse or gratify the sexual desire of any person.

That odd "not a bathroom" clause, by the way, is there because there's a separate part of the statute that deals with filming in bathrooms and dressing rooms — which the Texas court did not strike down.

So. Let's consider this a minute. Taking a picture of someone in public with the intent to gratify anyone sexually is a felony under this statute.

Is this picture a felony?

Vancouver-riot-kiss-coupl-001

That depends on whether a jury thinks that the photographer took it for anyone's sexual gratification. Could you get arrested for taking the picture? That would depend on whether a cop thinks that you are taking the picture for sexual gratification. The picture is iconic; it depends upon apparent juxtaposition of a heavily-policed riot and a passionate embrace. I'm sure the cops will have a nuanced view of it when you're standing there taking pictures. No doubt someone finds the picture sexually stimulating. If you take the picture, with the intent to put it on the internet, and you know what the internet is like, are you committing a felony? Does it depend on whether you intended that people would be stimulated by it, or merely knew that they would?

How about this picture?

Jyllenhaali

Various people find Jake and/or Maggie Gyllenhaal to be sexually stimulating. Many of these people probably read the papers and magazines that print pictures of them at the beach. The photographers know this, which is why they take the pictures, so they can sell them to the papers and magazines. Has the photographer committed a felony? Does it depend on how "hot" the picture is? Does whether it is a felony depend on whether Jake is wearing a rash guard?

Perhaps you think that's a ridiculous question, that I'm making up stupid slippery slopes. The Texas court doesn't think so.

This statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street.

How do we know it won't? 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.

Here's what the court did. Faced with a challenge to the statute, it first addressed whether photography in general is protected by the First Amendment. The answer — which I hope you will be happy to hear — is yes.

The second question is a bit trickier. Is photography an inherently expressive act that triggers the First Amendment, or does it depend on whether any given photograph has a "particularized message?" The Texas court weighed the precedents — parades are inherently expressive, flag-burning may or may not be expressive depending on the circumstances — and decided that photography is inherently expressive. The court quoted Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which pointed out that demanding an individualized show of "particularized message" tends to chill and suppress speech:

As some of these examples show, a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a "particularized message," cf. Spence v. Washington, 418 U.S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll.

The third question is also tricky. Even if photography is generally protected, is this statute limited at only specifically unprotected types of photography? That's what the state argued — that because the statute only applied to photography intended to cause sexual gratification, it only applied to unprotected photography. Not so, said the court. Not everything designed for sexual gratification is unprotected. In fact, a large amount of sexual expression is protected. Here, the law bans both protected expression — say, taking a photograph of an attractive celebrity on the street — and unprotected expression, like child pornography or obscenity. The fact that something is designed to cause sexual arousal doesn't take it outside the protections of the First Amendment:

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

But what about the "without consent" clause? Can the government ban non-consensual photographs? The state thought so — they argued that the lack of consent makes the ban constitutional, even though it would still apply to the hypothetical celebrity on the street. But, as the Texas court points out, the state is vague on the details. The state conceded in this case that we all effectively consent to being photographed when we go out in public to some extent, but argues there are some circumstances — which it can't define — in which that consent is no longer implied. But the First Amendment doesn't permit such ambiguity. Here the Texas court found that the state's definition of consent was so vague that it wasn't clear whether or not the defendant's conduct (taking pictures of women and children in bathing suits at a water park) would be illegal or not.

So, does that resolve the issue? No, it does not. That merely means that the statute bans some protected conduct. The next question is whether the state has a sufficiently compelling reason to ban that conduct. Here's where the coverage was the most woefully misleading. The court explicitly suggests that a law banning upskirts may survive First Amendment analysis:

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.

But this statute doesn't do that. This statute bans non-consensual photography (with a definition of consent that is not clear even to the state prosecuting under the statute) if someone has sexual intent. As the court points out, the state is perfectly capable of drafting a narrower statute, and does so in the next subsection by banning nonconsensual photography in bathrooms and private dressing rooms.

So — shouldn't the court just uphold convictions when they are for clearly unprotected conduct (say, a photo of a child that qualifies as child pornography, or a picture that qualifies as obscenity, or an unquestionable invasion of privacy like an upskirt), and strike down the ones that are for protected conduct? That's not how First Amendment analysis works. Under the overbreadth doctrine, if a statute poses a "realistic" risk of banning a "substantial" amount of protected speech, the whole thing fails. Here, the court found that the statute's reach was "breathtaking." Therefore, even though there might be some constitutional applications, the statute is unconstitutional.

But wait. What about that extremely douchey part where the Texas court said that banning non-consensual pervy photography was "paternalistic" to the women it sought to protect? What assholes!

Well, actually, that's not what they said at all.

Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of “paternalistic interest in regulating the defendant’s mind” that the First Amendment was designed to guard against. [emphasis added by irritable blogger]

The court was talking about being paternalistic to defendants by regulating sexual thoughts, not paternalistic to victims of creepshots.

So, to sum up, allow me to mainsplain:

Zoidberg

Sometimes the rule of law — due process, application of established rules, procedures, and rights — result in nasty people getting away with bad things. That makes us angry. But it's not about how we feel.

The Texas court didn't say upskirts are protected by the First Amendment. Texas could probably ban upskirts, if it did a halfway-competent job of drafting a sufficiently narrow statute.

But who's going to get outraged about that?

If you're wondering why I give a shit, consider this: our freedoms are recognized or denied based on court rulings. Our understanding of those court rulings often derives from media coverage of them. When we do a lousy job of covering law, or when we put up with journalists doing so, we're doing a lousy job as citizens.

Last 5 posts by Ken White

Comments

  1. drij says

    Thanks for clarifying this like a rational human being and not a knee-jerk reactionary. It's quite refreshing ;)

    (A side note: you misspelled "mansplain")

  2. Rick says

    If you're wondering why I give a shit, consider this: our freedoms are recognized or denied based on court rulings. Our understanding of those court rulings often derives from media coverage of them.

    Deep analysis doesn't garner clicks; breathless hysteria does. To be fair, though, most reporters aren't lawyers and can't do the kind of analysis you did, nor can the average "I have a computer therefore I blog" blogger. One could say "Well, don't write about what you don't know…." but that leads right back to what gets clicks.

  3. Kapitan says

    This brings to mind the story about some upskirt photo taking guy who was acquitted in Massachusetts, which set off quite the controversy-I think most of the headlines were to the effect of "Mass Supreme Court Rules Upskirt Photos Legal". IIRC, the reason he was acquitted was that the law as written only prohibited photographing nude or partially nude people, which the women in question were not. However, a law specifically prohibiting such behavior was passed the very next day by the Mass legislature.

  4. white male says

    But wait. What about that extremely douchey part where the Texas court said that banning non-consensual pervy photography was "paternalistic" to the women it sought to protect? What assholes!

    This characterizes none of the coverage you quote at the beginning of the article. In fact, the Salon excerpt seems to get it right. Who are you responding to? Or did you just need a way to mock "mansplain"?

  5. TimL says

    This is a serious, not a snarky, question:

    I don't understand why photography would be protected by the First Amendment. That is, if I took a photo, but didn't communicate it to others in any way, then would that be covered by the First Amendment?

    For example, I took an upskirt photo and used it solely for my own enjoyment.

    Anyway, another good post… and another example of "people want what they want even more than they want to do it the right way."

  6. Chris Upchurch says

    Very nice explanation of the ruling, Ken.

    Interestingly, I actually hadn't previously heard any of the overwrought, ignorant mainstream media coverage of this case. The only story I'd previously read on this was Eugene Volokh's post on the case (and given that he wrote an amicus brief in favor of striking down the law, he was very positive about the decision). The coverage you quote is a good example of why I tend to ignore mainstream media coverage of legal issues in favor of places like the Volokh Conspiracy, SCOTUSBlog, and, of course, Popehat.

  7. says

    I, for one, appreciate very much that you give a shit and go to the effort of explaining how things actually work, taking away so much of the sensationalism most of the "press" indulge in.

  8. JonCB says

    @TimL
    My reading of what Ken is saying is that when a law is being challenged in this way the correct question is not about whether this law can be a good boy but the inverse question of "is it possible for this law to be a bad boy?" So in your particular example, If the law was specifically written to only apply to defendants who had not distributed the material it might have survived the challenge but instead the law applied whether or not you distributed the photo and thus the court had to consider the "worst possible" scenario.

    (Note: IANAL nor am I American, so for god sake don't consider this at all meaningful about any legal system, least of all the american system)

  9. NI says

    I remember once being outraged to read a newspaper story that a candidate for the bar was being denied a law license because he had opposed the Vietnam war. I then actually read the case and discovered a fairly significant fact that hadn't made it into the newspaper article: His "opposition" to the war had consisted of blowing up a building with several people inside. That incident taught me everything I need to know about journalists getting court holdings right.

  10. says

    @Rick:

    To be fair, though, most reporters aren't lawyers and can't do the kind of analysis you did, nor can the average "I have a computer therefore I blog" blogger.

    No disrespect to Ken, whose knowledge of First Amendment law is clearly far superior to my own, but I'm pretty confident I, as a layman, could easily have read the ruling and determined that the language was thrown out for being overbroad.

    Indeed, I think anyone reporting on any First Amendment issues whatsoever should START by asking the very simple question, "Was this ban on X thrown out because it could also have inadvertently banned Y and Z?" Because the answer is usually Yes.

    Now, it's entirely possible that I'm overestimating the intelligence and basic critical thinking skills of "most reporters". It wouldn't be the first time.

    But I'm more inclined to go with your first theory: that they're in it for the clicks, not the facts.

  11. En Passant says

    Rick September 21, 2014 at 5:09 pm:

    Deep analysis doesn't garner clicks; breathless hysteria does.

    This. And readers are not the publication's customers; readers are the product. Advertisers are the customers.

    Bad journalists feel bad about bad journalism, all the way to the bank.

  12. Rob says

    @TimL
    So in your particular example, If the law was specifically written to only apply to defendants who had not distributed the material it might have survived the challenge…

    It would not have survived the challenge. You don't have to transmit, share, or publish anything for it to be considered protected speech under the First Amendment. Doing so would allow the government a very large loophole to prosecute speech that would normally be protected simply by charging the author with a crime before they've published. And of course, just because it hasn't been shared doesn't mean it doesn't have meaning or value.

  13. That Anonymous Coward says

    Never let the truth get in the way of clickbait.
    The law is like a drop of water hitting a puddle. Sometimes you have to actually deal with the ripples it causes that reach well beyond the initial impact point.
    But keeping people focused on the "upskirting" portion makes for more traffic & outrage they can tap into.
    For some stupid reason, despite historical evidence proving otherwise, people seem to think the media (or their preferred media source) never makes mistakes.
    They will lock onto something, and to their dying breath, will claim that is the REAL truth.
    See also: Vaccination, Hawaiian Birth Certificates, Climate Change, etc.

    Media reporting is no longer the "golden age" we once had after a very long time of "yellow journalism".
    People forget how very powerful men who controlled the media used it to destroy people they didn't like, making things up and breathlessly reporting on scandal they invented.
    Now there are some laws that are supposed to keep this in check, but very rarely are they used as intended or make things better by being there.

    People need to be informed about what is happening around them, but they really need to stop blindly following the "truth" and find it for themselves.
    Perhaps if they took off their blinders, they might notice that much of the "reporting" on serious issues always contains slants that support a narrative being sold by a group.
    A group that needs you listening to them, ready to jump into action, without any critical thinking beyond doing what they tell you to do.
    That perhaps the group doesn't have your best interests at heart, but needs you following what they want no matter the personal cost.

  14. steve says

    The media coverage may be off base. But, as long as the judges keep getting it right we are fine. ….Uh Oh!

  15. stakkalee says

    Thanks for another informative article Ken, although I bet saying "the media gets it wrong again!" must get tiring after a while.

    On a related note, I remember Massachusetts had a similar problem with upskirt photos earlier this year after the pervert Michael Robertson's conviction was overturned. After the outcry surrounding that situation the MA legislature acted quickly to close the loophole in the law, and they came up with House Bill H3934. I'm curious if the changes they made satisfy you that they've threaded the needle between protecting speech and protecting people from creepers?

  16. Fasolt says

    (b) A person commits an offense if the person:

    (1) photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room:

    (A) without the other person's consent; and

    (B) with intent to arouse or gratify the sexual desire of any person.

    I noticed that all important "and" at the end of 21.15(b)(1)(a). Imagine what would have happened if that had been an "or" instead. Any street photography that included people would have required a model release for each person in the photo. An exception might have been made for person(s) that were unrecognizable due to being obscured or out of focus.

    That "or" could have also made red-light enforcement camera cases interesting. Unless they decided your driving on the roads as implied consent to be photographed by red-light cameras.

    Those (ahem) journalists are going with the usual methodology. Never let the facts get in the way of a good story.

  17. Dion Starfire says

    I'm probably wrong about this, but didn't SCOTUS make material intended solely for sexual gratification unprotected, when they defined obscenity (specifically the part about "appeals to the prurient interest")?

    Given that background the simple addition of "solely" before "with intent …", and some exceptions for material with social/cultural/artistic/etc. merit would make the statute perfectly acceptable.

  18. Jacob Schmidt says

    Meh, I'm less incensed than one might hope. I sincerely doubt that law would be used to any significant deleterious effect; the only serious ramification of the law would be to outlaw upskirts, and was likely intended to be such. It's lazy as all hell, but "Texas strikes down anti-upskirt law to protect first amendment rights" isn't so far off the mark. Mostly, it's the implication that the ban wrt to upskirts is what's being protected, rather than that the ban was overbroad.*

    *The Guardian is the exception here: "…the constitutional right of Texans to photograph strangers as an essential component of freedom of speech – even if those images should happen to be surreptitious “upskirt” pictures of women…"

  19. says

    The part where you mentioned that the photographer is aware of the shots he's taking, well of course he would risk committing a felony because that is his bread and butter and the government doesn't give a crap about celebrities being photographed, it's an occupational hazard same goes with the paparazzi.

  20. Mercury says

    Another bad ruling/law that seems needlessly to be both too narrow and too broad at the same time. What about the creep on the subway with mirrors on the tips of his shoes? "Photography" isn't really the crux of the issue in the proverbial "upskirt" scenario.

    Developers at Apple working on the beta version of the iShoe will be watching this space closely however – actually I think Apple has already incorperated some such considerations into the functionalities of the Aplle Watch.

    Also, 'Occupy' chicks are easy.

  21. GoSign says

    So in short: The law banned upskirts, which is good, but it also ("accidentally"?) banned other things which it shouldn't have. The law needed to be struck down. We should probably have a law against upskirting, but this particular law was bad at doing so.

  22. wodun says

    "Consider, say — the Mary Sue, a really very good blog that deals with how pop culture treats women."

    It isn't a very professional blog. They don't due much if any due diligence on the accuracy of their posts. They will often be three or more links removed from the original content and provide no new information and only make comments about people making comments about other comments.

    Just recently they accused a game developer of encouraging, endorsing, and promoting rape without even bothering to speak to the developer.

    Also, while their profession is writing, they do not honor the first amendment. Comments that do not adhere to their political ideology or that point out errors the blog authors make are deleted. I am sure they have some wacko justifications for the censorship but it just boils down to censoring those who think differently than them.

  23. Trent says

    I'm probably wrong about this, but didn't SCOTUS make material intended solely for sexual gratification unprotected, when they defined obscenity (specifically the part about "appeals to the prurient interest")?

    The obscenity exception has been dramatically reduced by juries, not the court. Which IMO is exactly how it should be. Shortly after the Bush administration took office they planned a big push against pornography. They were delayed by 9/11 but IIRC about 2006 they made a push, arrested half a dozen major pornographers after getting them to send material to very conservative states, including my own Utah. This pornography included things on Larry Flint's obscene pornography list (if you google a phrase like that you will find what I'm talking about, basically the major mens magazines throughout the years have produced a list of stuff they wouldn't show to avoid prosecution) that all the major publications like Hustler avoided such as anal sex, bondage, etc. The Bush prosecutors dutifully took these half a dozen cases to trial and lost in all but one because the Juries didn't believe the material rose to the level of obscene material (it's a rather strong definition). The only pornographer that ultimately went to jail was Max Hardcore and if you know anything about the material he produced you would be hardly surprised he was convicted as it's composed of basically simulated rape and female degradation.

    American attitudes to pornography have changed in the last 50 years, quite dramatically even if the most conservative states.

  24. sinij says

    At this point in socio-history, anything that touches gender issues and is not an immediate appeasement or apologia is treated as an outrage material by the certain kind of internet lynch mob. It is "in" to be over-top outraged, no matter how misplaced the outrage is.

    In other words, Ken you have not checked your privilege, and voiced latent-rapist views in a public forum. As a result of such conduct you now must report to your local social justic officer to get directed to reeducation camps.

  25. Will says

    @white male, If all Ken wanted to do was mock the term "mansplain", he could have just pointed out that it is LITERAL Orwellian 'Newspeak' and thus doubleplus ungood.

  26. Kevin Kirkpatrick says

    I'm neither a lawyer nor a legislator, so this may seem clumsy, but I'd like to try formulating a law which cleanly slices the question of "upskirt" and related areas of photography into "where the rights of the photographer start and where the rights of the photograph-ee end."

    I would put it as follows (and humbly request the feedback of first-amendment scholars to determine if I fail to strike a reasonable balance between the rights of either party).

    "Viewership of a person's body, and any clothing, jewelry, or other coverings with which it is adorned, shall be considered a commodity owned by that person. As owners of this commodity (much like ownership of other forms of property), people have the right to determine with whom they wish to give it, share it, or sell it. In private spaces (homes, restrooms, changing areas, etc), direct viewership of any part of that person's body or attire may only be obtained with that persons implicit consent, and any recordings thereof may only be made/distributed with that person's explicit consent. When entering a public space, a person is consenting to public sharing of exactly (and only) viewership of those portions of their body which their clothing choices are (by reasonable-person evaluation) intended to reveal. Thus, in public spaces, a person has implicitly consented to shared viewership of only those areas of their body their clothing is intended to reveal. This consent entails the right of other citizens to record / photograph the person in question, so long as their recordings capture imagery of only the intentionally-visible body parts.

    In situations where mitigating circumstances reveal parts of a person's body or attire they intended to cover with their clothing selections, two situations need to be addressed: 1) bystanders who view those exposed body parts directly and 2) bystanders who make recordings of those body parts. These aspects shall be resolved as analogous to a "dropped wallet". If somebody accidentally drops their wallet, it is not a crime to pick the wallet up and hand it back to them (it stretches the analogy a bit, but the situation of accidental exposure may be best thought of as dropping a wallet into the lap of another person, leaving them with no choice but to do *something* with the wallet). Averting one's eyes may be interpreted as a good-faith equivalence to handing a person's dropped wallet back to them. Deliberate / prolonged gazing or leering may be interpreted as a poor-faith equivalence to picking up a dropped wallet, but delaying returning it to the person while engaging in potentially nefarious activities (i.e. counting the money therein). Exact criteria could be drawn up to punish such offenders with appropriate levels of misdemeanor and/or open the offender to civil charges. Deliberately photographing the exposed body parts or attire is equivalent to theft: such recordings constitute the stealing of a person's "viewership commodity" – and would be analogous to grabbing the dropped wallet and running off with it. Distributing such recordings would be the equivalent of actually spending money or using credit cards from the stolen wallet.

    With these guidelines in place, I think a fair-and-balanced set of consequences could be established; ranging from protection of photographing a nude streaker at a ballgame to punishing a person who photographs a muslim woman's face after her burqa was snagged and pulled from her head. Misdemeanors may apply to circumstances surrounding accidental exposures: staring at a woman whose bikini top was pulled off by a wave might be determined to be a punishable misdemeanor; photographing her a felony. "Upskirt photos" are clearly in the realm of felony activity.

    Are there any glaring omissions or holes in treating the topic in this way? Would laws, written to legislative standards, but cast in the spirit of this sentiment, violate any obvious first-amendment rights of photographers?

  27. David C says

    Kevin: Your proposal would make it a crime to so much as look at (let alone photograph) someone who suffered a wardrobe malfunction – even a minor one that exposed some skin but not any critical areas. I think you've made this so broad because you're aiming to criminalize photographing (or looking at) a woman who lost her burqa, but you're also criminalizing photographing (or looking at) a man who lost his hat.

    I can't go along with that. Excessive criminalization is a problem in and of itself. You don't want to send people to jail because they were going about their business and something unexpectedly happened to someone else and they reacted by staring. And I can just imagine the scams that could happen if people were legally required to look away… one "accidental" clothing slip, and your accomplices are free to do whatever nefarious activities they like for the next few seconds and nobody is allowed to look.

    Beyond that, you would criminalize all in-home photography without *explicit* consent? Really? So I can't throw someone a surprise party and snap a photo of their reaction? Can I take a picture of my baby and just say that I give consent on his behalf? What about my 17 year old? My 18 year old? My spouse?

    You may or may not have also criminalized all security cameras, since your wording requires that "recordings capture imagery of only the intentionally-visible body parts". Any security camera is bound to eventually record something that was not intentionally visible.

  28. Bruce says

    Thank you for a rational post on a topic that was very badly reported. In early March, the Massachusetts Supreme Judicial Court, consisting of 3 women and 4 men, 5 of whom were appointed by Democrat and Ultra-liberal Deval Patrick, unanimously reversed the conviction of a perv who was taking "upskirt" pics on women on the trolleys. The law was held unconstitutional on technical grounds similar to the Texas statute. The State legislature passed a new statute that passed constitutional muster THE VERY NEXT DAY

  29. princessartemis says

    @Kevin, in addition to criminalizing looking at a man who has lost his hat, you've also criminalized walking into the family bathroom only to discover it's in use. That's embarassing enough for all involved without also making it a criminal activity.

  30. says

    wodun said:

    Also, while their profession is writing, they do not honor the first amendment. Comments that do not adhere to their political ideology or that point out errors the blog authors make are deleted.

    The Mary Sue is a private web site. Their willingness or failure to publish anything at all on their site has precisly fuck-all to do with "honoring the first amendment." The First Amendment protects your right to express yourself in public– there is no right, protected by the that amendment or anything else, to express yourself in someone else's venue.

  31. Crazy Canuck says

    I found the talk about that picture of the couple in the riot quite funny especially when talking about how people take things out of context. A lot of people thought that was a couple making out when in fact it was a boyfriend that was trying to provide care to his girlfriend after she was injured. This was during the Vancouver hockey riots and I hate that I need to also clarify that it was the second one in 2011, not the one that happened in 1994.

    citation: http://www.cbc.ca/news/canada/british-columbia/vancouver-riot-s-kissing-couple-tell-their-story-1.983560

  32. David C says

    Gretchen: True, but it does seem like it's at least a good policy to not delete comments merely because they disagree. You're going to completely turn off that commenter to your point of view, if nothing else. And it makes it look like you can't defend your points fairly.

    If they were a baseball team, it would be like they told their opponents that they're trespassing and need to leave the field in the middle of the second inning – maybe they have the technical right to do so because it's their field (and not, say, a public park) but everyone would consider them to have lost.

  33. Richard Hung says

    First of all, let me say that this is not my real identity. Fuck Facebook for trying to pigeonhole me.

    Second, let me say that I have a traumatized childhood filled with regular occurrances of "Friday Flip-up Day". Boys would grab a girl's skirt and flip it up, and sometimes grab panties and pull them down. I don't wear skirts anymore. I'm mortified by the prospect of some asshole's "prank" violating basic limits. Before you get all huffy and claim this is an isolated incident, I grew up on Army bases. It happened everywhere. Later on I was discriminated against for wearing pants to job interviews. Apparently I'm supposed to let go of my right to control views of my coochie.

    So this isn't just a small thing. Just as a catcall or overture on the street can lead to kidnapping, upskirt violations are no fun for us either. I'm constantly amazed at how often women are told that they're not entitled to set basic understandable limits to physical access to their persons.

  34. says

    Interesting post indeed. Women can possibly still find some judicial relief in civil court. Depending on state law and the circumstances of a particular event, a creep shot can qualify as assault and/or invasion of privacy. Thanks anyway for sharing this article and happy holidays!

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  1. […] Ken White has delivered another masterpiece, expertly debunking the news media's criminally ignorant analysis of a Texas Court opinion. I must admit, when I saw the headline "Texas Court: Ban on 'Upskirt' Photos Violates First Amendment Rights" and its ilk around the web, I just assumed that reporters were being sensational and dumb as usual, and moved on to other things. Thank goodness Ken was on the case, and properly flagged the danger in lawyers reacting this way. We have a tendency as a profession to think, "Well, there they go again, completely misunderstanding the law, poor dears" when we should be working overtime to set the record straight. I admonish my seminar attendees for doing this regarding the public's distorted view of legal ethics, and fell into the same trap myself. […]