Cultural Commentator

Upskirt Pics Are Protected by the 1st Amendment, Lawyer Argues

Cultural Commentator

Upskirt Pics Are Protected by the 1st Amendment, Lawyer Argues

Can you spot the partially nude person?
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We live in a peculiar time, where we have almost no practical expectation of privacy as soon as we walk out the door of our homes, or, for that matter, log on to the internet. That applies to both data mining from the likes of Google and Facebook, to the more clandestine activities of the NSA, but also in a more mundane sense.

Some of us take precautions to guard against these technological intrusions, but it’s a bit harder when you’re going about your day to day life outside in the real world. How many times have you seen someone on your feed, or a blog you frequent, post something that falls under the “Look At This Asshole I Saw in the World genre”? While it’s certainly distasteful to snap someone’s picture when they haven’t consented to it, should it also be illegal? And what if it’s done with a sexualized intent, how does that change things?

That latter question is one at the center of an interesting case before the Massachusetts Supreme Judicial Court this week. A lawyer for Michael Robertson, who was arrested in 2010 for taking “upskirt” pictures on the Boston subway, says that if women didn’t want themselves surreptitiously photographed, they shouldn’t have been pointing their irresistible panty-clad vaginas in everyone’s faces. More or less.

“If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy,” Michelle Menken, the lawyer defending the latest pervy 1st Amendment  crusader argued.

As the Eagle Tribune reports, the peeping Tom laws currently on the books only apply to people who are nude or partially nude, such as in dressing rooms, or their own homes. That doesn’t apply to public spaces like a subway. “They have to be in an exposed state to violate the current law and these women were not,” she said. Since her client was also taking the photos in public in plain view, he wasn’t conducting the type of secret of surveillance that would run him afoul of the letter of the law.

The case, while obvious-seeming on its face, brings up some interesting questions. While my inclination is to, of course, say this guy is a creep who deserves to be punished (two years in jail seems a bit stiff, however), as the presiding judge asked: Are we all considered partially nude right now where we sit? And what’s the difference between what the eye can see and a camera can see?

On the other hand, we live in a culture where women, particularly on the subway, have to constantly be on guard from the likes of Robertson, so arguing that it’s a man’s 1st Amendment right to point a telescope at your butthole seems counter to the spirit of the law as it was intended.

 

@lukeoneil47

 

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