Recent repeal of Texas ‘upskirt law’ denies women, children of basic human rights

In 2007, Texas statute amended a law that aimed to protect women from intrusive photographers. The law, commonly known as the “Texas upskirt law,” ruled that taking photos or videos of another person in public without the other person’s consent and with intent to use said material to “arouse or gratify the sexual desire of any person” was illegal (International Business Times, “Texas ‘Upskirt’ Law Ruled Unconstitutional,” 9.18.14). However, this law was recently overturned by an 8-1 decision by the Texas Court of Criminal Appeals. Does that mean what I think it means? Yes, the Texas court of Criminal Appeals said it is okay for men to take photos up womens’, and even childrens’, skirts without their consent.

Upon further investigation of this law, I found the case that sparked questions about the law in the first place. Ronald Thompson, a man in his early fifties, was accused of 26 counts of violating the state law, including several that refer to images of “unknown female[s] with various colors of bathing suits or bikinis” at a San Antonio water park. Many of the images were of children ages three-11.

After charges were filed, Thompson and his attorney filed a motion to drop the charges before trial even began arguing that prosecution was “unconstitutional in violation of the First Amendment.” His request was denied but upheld by a court of appeals, resulting in the case’s going to the Texas Court of Criminal Appeals where the ultimate decision was made (LA Times, “Texas court throw out part of ‘upskirt’ photo law,” 9.19.14). Ultimately, the court case came down to an interpretation of the First Amendment. The state argued that the photos were part of an overall behavior that was not meant to be expressive (as for what I assume to be in an artistic manner). Court papers documented the state’s argument and stated that the First Amendment should not be a cover for lawbreakers to hide behind.

Thompson’s attorney jumped back arguing that “upskirt law” did not differentiate “upskirt” photography from “merely photographing a girl in a skirt walking down the street.” In other words, he argued that the law was not specific enough to find his client guilty, for then the court system would have to find paparazzi, art patrons, journalists, etc. guilty of breaking this law as well. Thompson won his case in the 8-1 decision where the Texas Court of Criminal Appeals claimed that photos are “inherently expressive” and, therefore, are protected by the First Amendment (Houston Chronicle, “Texas court throws out ‘upskirt’ photo law,” 9.17.14). “The camera is essentially the photographer’s pen and paintbrush,” Presiding Judge Sharon Keller said. “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.” So the Texas Court of Criminal Appeals just said it is okay for a man in his fifties to take photos of the crotches of female children. I cannot even fathom to begin how people can find that it is okay for others’ personal areas to be photographed without consent, and particularly with small children in any way, shape or form.

Peter Linzer, a teacher of constitutional and First Amendment law at the University of Houston Law Center shared his opinion in support of the ruling by saying, “To think that it’s unlawful to look at a little girl in a swimsuit, when you have lascivious thoughts, in public? And you did not do anything to that child? That cannot be made a crime in the United States” (Houston Chronicle, “Texas court throws out ‘upskirt’ photo law,” 9.17.14). To Peter Linzer, I question the distribution and the consent of these photos. Looking at a girl passing by you in a swimsuit and taking a photo of a girl’s crotch are two very, very different things. Let’s start out by saying the girls in Thompson’s case were not able to give him consent to take the photo of their personal areas, as they are minors. This is a form of child pornography, as stated by the Department of Justice: Section 2256 of Title 18, United States Code, defines child pornography as any visual depiction of sexually explicit conduct involving a minor (someone under 18 years of age). Visual depictions include photographs, videos, digital or computer generated images indistinguishable from an actual minor and images created, adapted or modified, but appear to depict an identifiable, actual minor. The Department of Justice of the United States continues, stating: “Images of child pornography are not protected under First Amendment rights, and are illegal contraband under federal law” (USDOJ, “Child Exploitation & Obscenity Section,” 2014).

The fact that the Texas court said it is legally acceptable to take photographs of children’s personal spaces, especially knowing these child pornography laws, is just beyond me. Gene Policinski, Chief Operating Officer of the Newseum Institute and Senior Vice President of its First Amendment Center stated, “I think the central issue here is the expectation of privacy in a public place” (Business Insider, “Texas court rules upskirt photos legal, and that’s a big problem,” 9.20.14). Clearly, women and children in Texas have no right to privacy at all once they leave the house. Unfortunately, the most popular fashion trend in Texas this fall is probably going to be pants.

 

—Delaney Fisher ’15 is a neuroscience major.

One Comment

  1. Taking pictures of children’s covered crotch areas is NOT child pornography under the standard set by Osborne and Ferber. Under the standard the child must be nude or engaged in a sex act. In this case they were wearing bathing suits. Of course no one wants to make taking pictures of kids in bathing suits a crime and I don’t want courts glossing over photographs deciding if there is too much focus on the genatal area.

    The Texas Law sought not to outlaw certain photos but to outlaw certain photos taken with a sexual intent. Do we really want to put people in jail for what they are thinking?

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