Unfortunately, the surreptitious filming tactics known as “upskirting” or “downblousing” have been a lucrative enterprise for individuals seeking to make money off the filming of strangers for sexual gratification.
But a recent court decision in Texas surprised many people when it ruled that a law banning such photos violates free speech rights and therefore should not be banned. The Texas Court of Criminal Appeals ruled that a previous prohibition on the practice imposes an improper restraint on a person’s right to individual thoughts.
In the decision, Presiding Judge Sharon Keller argues: “The camera is essentially the photographer’s pen and paintbrush. 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.”
Perhaps even more disturbing is that the case centered on Ronald Thompson, who was charged with 26 counts of improper photography when he took underwater pictures of children in their swimsuits at a water park.
Under Texas law, it’s a crime to electronically 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.” But Thompson appealed, arguing that the law makes street photographers, entertainment journalists, art collectors, and amateur photographers criminals as well.
But the District Attorney argued that what mattered was intent - trying to do something unlawful - which placed this kind of photography in a different class from art. However, the court disagreed, saying the law cannot govern people’s minds.
Judge Keller wrote, “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.”
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