Exactly what is and what isn’t freedom of speech? That’s a high-priority question, following the news Friday that a Texas court ruled it legal to take upskirt photos, It’s yet another controversial example of state-level courts struggling to define what is and isn’t a violation of privacy, versus an expression of protected artistic freedom in a public space — should a man be allowed to take creepshots of a woman on a public street, or on public transit? Even further, what about taking photos lingering on women’s swimsuit areas at a pool or a water park? What about taking those kinds of photos of children?
If you’re anything like me, that idea makes your stomach turn, and you’re probably wondering how the hell the Texas Court of Criminal Appeals could’ve reached this decision. This isn’t an isolated incident, however, and rulings in favor of creep-shotters haven’t just been contained to state-level bastions of conservatism — just last March, as International Business Times details, the Massachusetts Supreme Judicial Court ruled in the favor of a Boston-area man’s right to take sexually provocative upskirt photos while riding on public transit. Basically, it’s a legal question that’s vexed many observers, however much it might seems obvious that, no, taking sneaky photos of women for sexual gratification is not okay.
Obviously, the popularity of a legal decision doesn’t necessarily track with the decision’s rightfulness or wrongfulness, but in this case, the kind of people the Court’s ruling is favoring must be considered as one of the more unsympathetic bunch of people you’re going to find. Men taking creepy photos of women in public, photos possibly for the explicit purpose of their own arousal, is a profoundly violating experience to those women who’ve weathered the experience.
And moreover, it being a legally protected practice can put young children in a unique position of vulnerability and sexual objectification. The specific case that provoked Friday’s ruling, in fact, was that of 50-year-old Ronald Thompson, who was charged for snapping dozens of photos of bikini and swimsuit-clad women at a water park — some of them reportedly children, according to the Los Angeles Times.
But regardless of whatever depravity his photos allegedly displayed, Thompson’s attorneys argued that the photos were essentially protected expressions of free speech, and Judge Sharon Keller agreed, ruling that the state’s existing anti-upskirt law was in violation of the First Amendment. The ruling didn’t deny that Thompson or a similar person’s motives might be sexual, but simply that expressing sexual desire through surreptitious photos is a protected act. As Keller wrote in her opinion, according to the Los Angeles Times:
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 1st Amendment was designed to guard against. We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from 1st Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression.
Yup, you read that right — anti-creepshot laws are “paternalistic.” Indeed, Thompson’s attorney echoed this sentiment, in casting the laws as “Orwellian.”
This story should give pause to Texan women everywhere. The Court essentially ruled that women anywhere out in public have no reasonable expectation of privacy, even if an unwanted photographer’s intent is overtly sexual — in practice, it makes visiting a water park for a woman in Texas like signing a release waver to be ogled and snapshotted. This isn’t to say that freedom of expression, photography and videography rules in public places aren’t important — they undoubtedly are, and forcing courts and juries to make judgments about the intent behind random photographs can be a precarious position.
But as the law stands now, especially after this ruling, it’s hard not to feel as though Texas’ women are being failed in the most basic of ways. When the same anti-creepshot law was ruled against in 2013, the Bexar County district attorney’s office put out a press release with a cautionary title, according to The Guardian: “Cover up while we appeal.” For now, at least, that message still rings true — in Texas, it seems, wearing a swimsuit in a public place is giving license to lech.
