A decision from the highest criminal
court in Texas is the latest seeking to define the line between privacy and
constitutionally protected speech. Last
month, the Texas
Court of Criminal appeals struck down a portion of a state law that
prevented people from taking “upskirt” pictures, holding that the law was
unconstitutional on its face because it violated free-speech rights and
penalized people’s thoughts at the expense of trying to protect people from
harassment. The case involved a Texas statute,
which made it a felony crime to photograph or record someone without the other
person’s consent and “with the intent to arouse or gratify the sexual desire of
any person.”
The Texas court
found this statute to be unconstitutional under the Texas Constitution, and the
U.S. Constitution’s First Amendment’s right to free speech and individual
thought. The law was meant in part to
protect against predatory
photographers who covertly take pictures under women’s skirts or down their
blouses than then post them on the Internet. Complaints of such incidents have become
common across the nation as mobile phones equipped with cameras are on the
rise.
The case that prompted reversal of the
law involved Ronald Thompson, a man
charged in 2011 with twenty-six counts of improper photography after taking
pictures of young children in their swimsuits underwater without parental
permission. Thompson tried deleting the
photographs before his camera was seized, but a police examination revealed seventy-three
images of children “with most of the photographs targeting the children’s
breast and buttocks areas.” Thompson
argued that the law was unconstitutional because it threatened to impose
criminal charges against entertainment journalists, photographers, or “even the
harmless eccentric” solely based on their thoughts. He
also argued that the statute “impermissibly penalized not just the
expressive act of photography, but also the ‘right to receive the public
expression of others.’”
Prosecutors argued that the
constitutional right to public photography should not be a shield that
lawbreakers can hide behind, and that the type of activity the law was intended
to prevent placed it outside the type of “expressive
activity” the First Amendment was designed to protect. The prosecution’s argument was not enough for
the court. The court ultimately found
that the state’s goal of protecting citizens from these “creepshots”
to be an unacceptable extension of the government’s power, saying
that:
“The government cannot constitutionally
premise legislation on the desirability of controlling a person’s private
thoughts … [constitutional] freedoms are most in danger when the government
seeks to control or to justify its laws for that impermissible end. The right to think is the beginning of
freedom, and speech must be protected from the government because speech is the
beginning of thought.”
In an 8-1 ruling by the Texas Court of
Criminal Appeals, the court ultimately ruled that photos, just like movies,
books, and paintings, are “inherently expressive” and therefore,
constitutionally protected. The court
found that “[t]he camera is essentially the photographer’s pen and
paintbrush … A person’s purposeful creation of photographs and visual
recordings themselves.” Once the court
decided that the photography was protected under the First Amendment, it addressed
the statute’s “intent” element, which the court described as “paternalistic.” The court said that “[p]rotecting 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.’”
The court reaffirmed the U.S. Supreme
Court decision in Ashcroft v. Free Speech
Coalition, which held that conduct protected by the First Amendment does
not lose its protection even when the photographer intends to arouse or gratify
sexual desires, and that the First Amendment protects “freedom of thought.”
It is widely agreed on that pictures,
movies, and books are protected under the First Amendment, but the decision has
nonetheless stunned many. It has also
left people begging the question, when does self-expression cross the line into
infringing upon a person’s own personal privacy? Essentially, the decision left the impression
that people like Thompson have a right to take improper and unsolicited
photographs, but the subject of the photograph does not have the right to exist
in a public place without having his/her personal privacy infringed upon.
The decision reaffirms the gray area in
privacy law, where on one hand, there are “Peeping
Tom” statutes designed to protect people from being photographed in
bathrooms and dressing rooms, but on the other hand, the U.S. Supreme Court has
held that people have no reasonable expectation of privacy in public places. There is no word yet on what Texas plans to do
with the law now; however, the hope is that the state attempts to clarify what
criminal activity is without having to depend on what is going on in the
defendant’s mind.
In March, the Massachusetts’
Supreme Judicial Court similarly ruled in favor of a lewd photographer,
holding that state law does not protect a woman’s privacy from a man with a
cellphone who took up-skirt photos on a Boston trolley. However, Massachusetts lawmakers came back
quickly with a revised law to protect privacy, which resulted in arrests. The new
law was created to be more specific, laying out in plain terms that “the
secret photographing, videotaping, or electronically surveilling of another
person’s sexual or other intimate parts … is a crime.” This new provision now speaks specifically to
images under or around a person’s clothing “when a reasonable person would
believe that the person’s sexual or other intimate parts would not be visible
to the public.” The provision’s
intent is to shift the expectation of privacy from a person’s surroundings
to the person’s body.
Arizona
took a similar approach as the state recently passed a law making it a
felony, and potentially a sex offense, to share any image of nudity or
sexuality before getting consent from every person pictured. The distinguishing factor here though, is that
it does not prevent the photo from being taken in the first place; the law
applies only once the photo is transferred or shared with a third party without
the subject’s consent. However, even
this law has prompted numerous lawsuits, including one from the American Civil
Liberties Union.
The decisions establish that privacy only
extends so far, and it does not extend to another person’s thoughts. A legal
scholar commented on the Texas ruling, saying that it “cannot be made a
crime in the United States” to look at someone in public and think lewd
thoughts about them; however this analysis misunderstands the difference
between looking at someone in a public place, and photographing them without
their consent. While the Texas law’s
purpose was to prevent the violation of a person’s personal privacy in a public
place as well as sexual harassment, the State’s mistake was including the
“intent” element. States with similar
laws making photography criminal contingent on the photographer’s intent may
need to reevaluate and amend the law, similar to Massachusetts’ approach. Otherwise, such lawsuits can be expected
along with many angry victims who have been exploited.
Mahira N. Khan
Staffer, Criminal Law Practitioner
Photo by Agacha via
Flickr
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