court: "upskirt" photos ARE free speech

[DrLeftover]

September 17, 2014 11:01pm

The state's highest criminal court on Wednesday tossed out part of a Texas law banning "improper photography or visual recording" - surreptitious images acquired in public for sexual gratification, often called "upskirting" or "downblousing" - as a violation of federal free-speech rights and an improper restriction on a person's right to individual thoughts.

In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are "inherently expressive" and, therefore, are protected by the First Amendment. The opinion supported a previous decision by the San Antonio-based 4th Court of Appeals.

"The camera is essentially the photographer's pen and paintbrush," the opinion written by 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."

The appeal questioned why some free speech can be treated as unlawful behavior in Texas. Peter Linzer, who teaches constitutional and First Amendment law at the University of Houston Law Center, said: "It's hard to see how you could make taking a picture a crime."

The case involved Ronald Thompson, who was charged in 2011 with 26 counts of improper photography after taking underwater pictures of clothed children - most wearing swimsuits - at a San Antonio water park. He appealed the law's constitutionality before his trial. He contended that a plain reading of the law would place street photographers, entertainment journalists, arts patrons, pep rally attendees and "even the harmless eccentric" at risk of incarceration.

In its arguments, the Bexar County District Attorney's Office asserted that the law's intent element - such as trying to do something unlawful - places otherwise expressive activity beyond First Amendment protection.

The court disagreed.

"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 wrote. "We also keep in mind the Supreme Court's admonition that the forms of speech that are exempt from First Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression."

Linzer said the court rendered a sound decision.

"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," he said. "The fact that some people might find that very offensive doesn't change anything. ... You can't prevent someone in public from looking at you and having dark thoughts."

More
http://www.houstonchronicle.com/news/article/State-appeals-court-rules-upskirt-law-5763225.php?cmpid=twitter-premium&t=53c893b5408b7034ef

 

[DrLeftover]

I'm quite happy to hear this decision from the courts. The last thing this country needs is the thought police. It seems we could be heading in that direction anyway, considering how things are going here lately.

"... ... .... but the child-ren......"

 

[+paradox]

I also agree with the court on this one even though the thoughts of some adults are sickening, you cannot make laws against thoughts...

 

[Sinon]

So wait. Taking a photo of a woman's underwear by shoving a camera between her legs is completely legal, and stopping it infringes on free speech?

I guess paedophiles are safe, to an extent. After all, he's not doing anything wrong. He's just taking pictures of those kids through the school fence. Don't infringe on his right to individual thought!

I feel like this ruling could trigger another one of those anti-women things, like the one for rape. "If you didn't want to get raped, you shouldn't have worn that outfit." Now it'll be "if you didn't want me to take pictures of your cunt through your panties, you shouldn't wear a skirt."

 

[Dee]

So wait. Taking a photo of a woman's underwear by shoving a camera between her legs is completely legal, and stopping it infringes on free speech?

I guess paedophiles are safe, to an extent. After all, he's not doing anything wrong. He's just taking pictures of those kids through the school fence. Don't infringe on his right to individual thought!

I feel like this ruling could trigger another one of those anti-women things, like the one for rape. "If you didn't want to get raped, you shouldn't have worn that outfit." Now it'll be "if you didn't want me to take pictures of your cunt through your panties, you shouldn't wear a skirt."

I'm in this mind set. I understand that we can't prevent people from thinking certain things, but I feel this could infringe on (sexual) harassment. WHY ELSE would someone be taking a picture up someone's skirt? For reference? This is a violation of personal privacy, and although the punishment probably shouldn't be as harsh, it STILL should be punishable somehow.

Want to take a picture of someone without getting close enough to snap a photo? Fine. As long as you're not in between their legs and photographing their private parts without your permission.

 

[WHO IS SERAFIN]

This is a good decision. Destroy one right to protect another is no solution.

 

[DrLeftover]

I believe "Abusus non tollit usum" comes into play here.


"Wrong use does not preclude proper use."


Something from 2005 on that subject:
http://bruthadeep.com/f3/abusus.htm

 

[DrLeftover]

Yes, ma'am, and thank you. Although others would disagree.

The Latin phrase was meant to highlight the idea that just the simple fact that something Can be, and probably Will Be, abused, such as a firearm, a box of donuts, the Internet, a bottle of scotch, or whatever, does not give the government the grounds to forbid it to everybody else.

That is one of the central ideas of the gun control crowd, that the weapons might be used to commit a crime. However, so are hammers.

Mrs. Obama is using that same fallacy to remove 'junk food' from schools because some kid might get fat and end up diabetic. Not thinking that a source of quick energy at a reasonable price might come in handy at times to get through the day.

I believe some of that was in the article I wrote in 2005 and linked to below the phrase.