Texas rules up-the-skirt photos are legal in freedom of speech tussle that’s not as clear cut as you think.

I’ve been saying for a geological era that women in the west have a burqa imposed on us. It’s just that ours is invisible.

The Texas Court of Appeal ruling legalising up-the-skirt shots — where a perv can thrust his camera up your skirt to take the image for sexual gratification — seems on the surface like another mind-boggling manifestation of how patriarchy rools.

However, sensationalist reports have ignored the genuine concern that, in its current form, the improper photography statute has enough wiggle-room for abuse by the State. It is actually an interesting legal dilemma that requires closer examination than my own initial harrumphing shock-horror allowed. As ever, going back to the source rather than relying on press reports yields nuances that get missed.

The Independent reports:

The Texas Court of Appeals ruled 8-1 to strike down part of a law which bans taking images of another person in public without their consent and with the intention to “arouse or gratify the sexual desire of any person”, criticising the “paternalistic” intrusion into peoples’ private right to be aroused.

To stop someone using you as a masturbatory aid is not something the Founding Fathers had in mind when they penned their First Ammendment, says Sharon Keller (for the judge be a she, sistahs).

“Orwellian thoughtcrime”, yelled lawyers for the perp Ronald Thomas, sounding like they never read any Gorgeous George in their lives. (Alexander Pope wasn’t wrong when he wrote “a little learning is a dangerous thing”.) After an alarming 2011 incident at Sea World in San Antonio, Thomas was found with 73 T & A shots of swimsuited children on his camera but, hey, this is his constitutional right.

In Wednesday’s judgement the State argued, defending the improper photography statute in its present form:

The State further contends that the lack-of-consent requirement means that the statute does not apply to a photograph of a person in public as long as the photograph is of an area of that person that was exposed to the public. … any person who appears in public and exposes a certain part of the body to the public has necessarily consented to that part being photographed, and therefore, the improper-photography statute would not apply. But, the State reasons, if the person is not in public, or the photograph is of an area of the person that is not exposed to the public—such as the use of an X-Ray camera that can see through clothing or a photograph taken up a woman’s skirt—then the improper-photography statute would criminalize such behavior if done with the requisite intent [italics mine]. … the statute serves the important government interest of protecting privacy by “protecting individuals from invasive covert photography” and “protecting individuals from having their images unconsensually exploited for the sexual gratifications of others.”

But the defence argued:

… the improper-photography statute prohibits not merely the act of photography but photography with intent to arouse or gratify sexual desire, and the latter is expressive. … While the legislature may have a legitimate interest in prohibiting “peeping tom” and “up-skirt” photography, appellant contends that the language of the statute “utterly fails to achieve that interest because it fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” Appellant argues that the “street photographer, the entertainment reporter, patrons of the arts, attendees to a parade or a pep-rally, [and] even the harmless eccentric are all at risk of incarceration under a plain reading of this statute.” … The amicus also states that the statute “covers only those photographs that have the intended primary effect of causing sexual arousal, and it is the content of speech that would cause such arousal.”

It’s a bad-faith argument, but the creep has a point in law. Your freedom not to be sexually harassed and violated is trumped by this man’s right to expression because the lawyers who wrote the legislation failed to nail it. So now in this corner of the Land of the Free, women and children have choices: you can cover up or you can wear your skirt or swimwear and be considered fair game by male predators.

The judge concluded:

… that photographs and visual recordings are inherently expressive … The camera is essentially the photographer’s pen or paintbrush. Using a camera to create a photograph or video is like applying pen to paper to create a writing or applying brush to canvas to create a painting. … 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.

Yet this intimidation is permitted. Consent doesn’t come into it as it would if you sat for a painting as “there need not be any actual concurrence of wills between the photographer and the subject or any actual voluntary agreement by the subject to be photographed.” Is a direct image of you snapped by a photographic device as artistically valid as a scurrilous cartoon? One has been created in the mind and brought into the world through an act of artistic creation whilst the other is an immediate capture of your actual image in light form. Snapping police in their duty has political validity in a way that photographing your knickered bum clearly does not.

However, the judge says, “A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their heads.” Perversely, even though the areas of your body are not on public display, photographing them covertly is legal. “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.”

Yeah, so let’s allow them to enact what’s in their minds willy-nilly. The letter of the law is a dead thing if there is no application of the spirit of the law.

However …

Could it be this which is the problem? The judge says:

The statutory provision at issue is extremely broad, applying to any non-consensual photograph, occurring anywhere, as long as the actor has an intent to arouse or gratify sexual desire.

Because the act of photographing is not illegal in itself, but is only illegal under the improper photography statute when motivated by sexual gratification, the law is being asked to look into a person’s mind, and this, I reckon, is where the difficulty lies. Remember those italics in the State’s argument defending the statute? “… if done with the requisite intent”? How on earth do you determine whether or not this is the case?

“Photographs are routinely taken of people in public places, including at public beaches, where bathing suits are also commonly worn, and at concerts, festivals, and sporting events. Taking photographs of people at such venues,” the Court said, “is not unusual, suspicious, or criminal.”

So this may be a case of dangerously worded legislation bashed out in a rush, with the devil being in the detail. Some societies consider a photograph to be theft of the soul. Until this flabby statute is tightened up, in this instance, I fear they may be right.

The appeal against the ruling hinges on whether the camera is a dead machine and photography a technical process not protected by constitutional right. Jury … still out.

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