Texas ‘Upskirt’ Decision Latest to Protect Constitutional Rights of Harassers

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Analysis Law and Policy

Texas ‘Upskirt’ Decision Latest to Protect Constitutional Rights of Harassers

Jessica Mason Pieklo

A Texas court decision ruling "upskirt" pictures constitutional is the latest example of the courts protecting rape culture in the name of the First Amendment.

Texas’ highest criminal court last week threw out part of a state law that banned “upskirt” pictures, holding that the law violated free-speech rights and penalized thoughts at the expense of trying to protect people from unwanted harassment. In doing so, it effectively perpetuated rape culture in the name of the First Amendment.

The case involved a section of the Texas penal code making it a crime to photograph or record a visual image of someone without the other person’s consent and “with intent to arouse or gratify the sexual desire of any person.”

As reported by the Houston Chronicle, Ronald Thompson was charged in 2011 with 26 counts of improper photography after taking underwater pictures of children at a San Antonio water park. Before his trial on the criminal charges, Thompson challenged the constitutionality of the Texas law, arguing that it threatened to throw amateur photographers, entertainment journalists, and “even the harmless eccentric” in jail based on their thoughts. Thompson also argued that the improper-photography statute impermissibly penalized not just the expressive act of photography but also the “right to receive the public expressions of others.”

Prosecutors countered that the kind of activity the law targeted placed it outside the kind of “expressive activity” the First Amendment was designed to protect. But the Texas criminal court disagreed, finding the state’s goal of protecting its citizens from “creepshots” to be an unacceptable extension of the government.

Roe has collapsed and Texas is in chaos.

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The 8-1 majority on the Texas Court of Criminal Appeals described the law as “paternalistic” and said photos—like films, books, and paintings—are “inherently expressive” and, therefore, protected by the First Amendment.

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

Keller continued, “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.”

Keller is correct, of course, that pictures and visual images are protected by the First Amendment, but she’s not correct that those First Amendment protections can erase the consent of the person photographed just because the person so happens to be in public.

If guys like Thompson have a constitutional right to be a creeper, what about my corresponding right to be left alone and exist in public in peace? According to the Texas criminal court, that apparently does not exist. “A person who walks down a public street cannot prevent others from looking at him or her with sexual thoughts in their heads,” the court wrote, adopting part of an argument advanced by Thompson that the improper-photography amounted to, as his attorney put it, “Orwellian thought-crime rather than the reasonable advancement of an important government interest.”

The Texas “upskirt” decision is hardly the first time the courts have ignored the right of a person to be free from unwanted harassment in the name of protecting the free-speech rights of the harasser, but it is one of the clearest examples of the court misapplying the First Amendment to insulate rape culture. In this case, both Thompson and the court brushed aside the issue of unwanted sexual contact by reframing the injury at issue here. They positioned as equal Thompson’s constitutional rights and those of the kids whom he photographed underwater, without their consent, because it turned him on—even though Thompson’s position of power as an adult man makes their situations inherently lopsided.

In doing so, the court specifically disregarded the rights of the children to be safe from creepers like Thompson, while making it even less safe in the future for vulnerable people to exist in public. Simply put, the Texas court’s decision confirms that when the law delves into an “objective” balancing of constitutional rights, there’s nothing balanced at all.

Last term, the Roberts Courts did a similar re-framing when it sided with the abortion clinic protesters and ruled their right to “counsel” strangers on the street trumped the rights of patients and providers to safely and privately access health-care services. More recently, the Tenth Circuit Court of Appeals sided with a white supremacist who sent threatening emails to a university professor on the grounds that a “reasonable person” wouldn’t feel threatened by the message stating the supremacist planned to “convene to detain and slay you.”

The Supreme Court will venture back into this debate of free speech versus harassment later this year in Elonis v. United States, a case that looks at Facebook comments and when speech is a “true threat” of violence or merely the constitutionally protected misogynistic lyrics of a budding rapper that just so happens to be directed at his ex-wife.

When the Supreme Court hears the Elonis case in December, it will be asked to determine if a “reasonable person” would feel threatened by Elonis’ posts detailing how he wanted to kill his ex-wife. The law sets this up as an objective inquiry because that supposedly levels the field between those people who find everything offensive and those who find nothing offensive. In other words, does the speaker’s intent govern whether or not something can be a threat, or should the courts take the side of the listener in these types of cases?

But despite what the courts say, there is just no way this can be an objective inquiry. By erasing the way gender, race, age, and other factors help define the limits of whether we can exist safely in public spaces, they tilt the situation in favor of the harasser every time. This is especially true when the “injuries” involved seem more remote—like taking a picture of someone while in public, or posting rants online—where victims of harassment find themselves without a remedy because of the court’s unwillingness to consider how privilege functions to control how we do, or do not interact with others in public. We see that in the Texas “upskirt” decision, with the court’s evident incredulity that Texas would even try and make taking a picture of someone in public without their consent a crime. “People do not ordinarily even think about being photographed when they appear in public,” Keller wrote.

In each of these cases, courts sided with harassers under the altruistic banner of robustly protecting the First Amendment. Protecting speech is certainly a good thing. But these decisions don’t protect the First Amendment as much as they advance rape culture by insisting that all people can, and do, exist in public with the same degree of privacy rights.

Racial profiling and street harassment data tells us otherwise, which is why it is so critically important that reality factor into the court’s analysis in these kinds of First Amendment cases.