Texas Protects Harassers’ Constitutional Rights in the Name of “Self-Expression”

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