Texas Court Strikes Down Law; “Upskirting” Legal Due to Ruling

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Summary: A Texas court has ruled that a law prohibiting “improper photography” is unconstitutional.

If you’re a woman in Texas, you may want to rethink your wardrobe: the highest criminal court in the state struck down a state law that prohibited citizens from taking photos up women’s skirts in public, Vice News reports.

  

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The language of the statute provided a ban on “improper photography or visual recording” with the “intent to arouse or gratify the sexual desire of any person.” The court ruled the law was an unconstitutional violation of the First Amendment, specifically the rights to free speech and individual thought.

The incident that triggered the overturning of the law involved Ronald Thompson. Thompson, a man in his middle 50s, was allegedly taking photos of children in their swimsuits in a San Antonio water park in 2011. Thompson tried to clear the photos off of his camera before the police obtained it, but officers were still able to charge Thompson with 26 counts of “improper photography.”

Secret photography, typically aimed up women’s skirts, is known as “upskirting,” with the photos sometimes known as “creepshots.” Due to the Texas ruling, it’s now legal for individuals to sneak their cameras up women’s skirts to take private photographs.

The 4^th Court of Appeals, based in San Antonio, struck down Thompson’s conviction, and the recent ruling by the Court of Criminal appeals upheld that decision in an 8-1 ruling.

Presiding Judge Sharon Keller ruled, “The camera is essentially the photographer’s pen and paintbrush…A person’s creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves.”

The Court added while “upskirting” is intolerable, that malicious intent cannot always be proven, and attempting to police the practice could lead to “Orwellian overreach.” Judge Keller opined, “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.”

Understandably, many are outraged at the ruling. The Bexar County District Attorney’s Office argued that self-expression can go too far, and that doing something unlawful can trump someone’s First Amendment rights. However, the arguments failed to persuade the judges to allow the law to stand.

Thompson’s attorneys had argued a “plain reading” of the law could risk arrests of the “street photographer, the entertainment reporter, patrons of the arts, attendees to a parade or a pep-rally, [and] even the harmless eccentric.”

However, citizens can rest assured that it remains illegal in Texas to take pictures of someone in private without their consent, for example in a bathroom or dressing room. Also, using x-ray cameras without consent is forbidden.

There are 15 cases of inappropriate photography under review in the Harris County Court. These 15 cases, plus 136 other cases from the past 13 years will likely be impacted by the ruling as defendants seek appeals or dismissals.

Photo credit: blogs.valpo.edu