Court Rules That “Creepy” Photos Taken in Public Aren’t A Crime

A District of Columbia Judge has ruled that photographs of women taken in public do not violate the law.

law-gavel-lights

A Superior Court Judge in the District of Columbia has dismissed charges against a Virginia man who was charged with taking photos of women sitting on the steps of the Lincoln Memorial in such a manner that the private areas of their bodies were at least partly visible:

Charges have been dropped against a man accused of taking photos of women’s “private areas” at the Lincoln Memorial after a judge ruled that he did not do anything illegal and that police did not have a probable cause to investigate him.

Christopher Hunt Cleveland of Springfield was arrested in June 2013 after U.S. Park Police observed him snapping photos of women sitting on the steps of the memorial, according to a search warrant. The officer suspected him of taking “upskirt” shots.

When an officer approached him, Cleveland became nervous and attempted to remove the memory card from the camera, according to a search warrant. Officers detained him after a struggle and found images of women’s buttocks on the camera and hundreds of comparable shots from other outings on a computer in his car.

“There is no evidence Mr. Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display,” McKenna wrote in her ruling.

Further, McKenna said that police did not have probable cause to stop Cleveland and search his camera since what he was doing was legal and officers were not acting on a complaint from the public.

Johnson moved to drop the charges Sept. 29. Cleveland and his attorney could not be reached to comment Thursday evening. The U.S. Attorney’s Office in the District declined to comment on the case.

The most important thing to note here, I think, is what this case is not. Contrary to the way this has been described by many media outlets, this does not appear to be a case where Cleveland was taking so-called “upskirt” photos that were obtained by deliberately placing a camera or video camera in such a position as to obtain pictures inside a woman’s skirt as she walks by. Nor is this similar to cases where people have been charged with placing cameras in changing rooms or bathrooms where more intimate photographs could be obtained. Instead, assuming that the description of the photographs that led to Cleveland being charged, it appears that what the photographs depict are, among other more innocuous scenes such as some of the monuments on the mall, women who were seated or standing in public in a certain way as to make certain areas of their body visible to the public at large. As the Judge in this case, who is a woman it should be noted, noted, what Cleveland photographed appears to be nothing different from something that was generally visible to any member of the general public who happened to be in the area at the same time.

Taking these facts into account, and looking at the words of the D.C. voyeurism statute, which forbids photography of a person “under circumstances in which the person has a reasonable expectation of privacy,” the Judge ruled that there was not a sufficient basis to charge Cleveland with a crime, and that therefore the search of his person and home that uncovered the evidence being used against him was not inadmissible in Court. While the charges apparently remain pending until a further hearing is held, this essentially means that there is no case against Cleveland because there is no proof that he took any photographs at all that could be presented in Court. In this case, that means that the Judge ruled that the women in question did not have a reasonable expectation of privacy in situations where, well, certain areas of their body were visible to the public generally, and if they are visible to the public generally then it cannot be illegal under the statutes it cannot be a crime to take a photograph of them. While all of this does sound creepy, it strikes me that the Judge got the matter right here. Nobody is endorsing what Cleveland did, of course, but the fact that something is creepy or makes people uncomfortable does not mean that it ought to be illegal, or that existing laws ought to be stretched in order to cover something that, when looked at objectively, it clearly doesn’t cover.

This isn’t the first time that efforts to punish people who engage in this type of photography criminally has hit a legal roadblock. Earlier this year, the highest court in Massachusetts rule that actual “upskirt” photos taken on the Boston subway were not illegal because the women in question were not nude or partly nude in the photographs. In that case, the Court ruled that the state law that formed the basis for the attempted prosecution only spoke to those situations, and did not include cases where there was not full or partial nudity. The Massachusetts legislature responded rather swiftly by passing a law that makes it illegal to take any photograph under a person’s clothing, without their consent, a misdemeanor punishable by up to 2 1/2 years in jail and a $5,000 fine. This solution may be the avenue that the D.C. City Council chooses to go, however both that hypothetical statute and the one in Massachusetts could face other problems thanks to a decision out of Texas:

A court has upheld the constitutional right of Texans to photograph strangers as an essential component of freedom of speech – even if those images should happen to be surreptitious “upskirt” pictures of women taken for the purposes of sexual gratification.

Criticising an anti-“creepshot” law as a “paternalistic” intrusion on a person’s right to be aroused, the Texas court of criminal appeals struck down part of the state’s “improper photography or visual recording” statute which banned photographing, broadcasting or transmitting a visual image of another person without the other’s consent and with the intention to “arouse or gratify … sexual desire”.

The case stemmed from the arrest of a man in his early 50s named Ronald Thompson who was stopped in 2011 at Sea World in San Antonio after parents reported him swimming with and taking pictures of children aged 3-11. The local district attorney’s office said that he tried to delete the photographs before his camera was seized and a police examination of it revealed 73 images of children in swimsuits “with most of the photographs targeting the children’s breast and buttocks areas”.

Prosecuting lawyers argued that the constitutional right to free speech, which includes taking public photographs, should not be a factor because photography is essentially a technical recording process and that attempted lawbreakers should not be able to hide behind free-speech protections.

Attorneys for Thompson said that the statute was “the stuff of Orwellian thought-crime” and that it did not distinguish “upskirt” or “peeping Tom” photography from “merely photographing a girl in a skirt walking down the street”, so in theory it could criminalise the likes of paparazzi journalists.

The appeals judges appeared to agree, stating that although “upskirt” type-images are intolerable invasions of privacy, the wording of the law is too broad. Presiding judge Sharon Keller wrote in the court’s opinion published on Wednesday: “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.”

The judges said that photographs were “inherently expressive”, like other artistic mediums such as films or books, and so the process of creating them, as well as the images themselves, was part of an American’s right to free speech because “thought is intertwined with expression

In many respects, of course, this Texas case bears similarities to the Washington, D.C. case in that Thompson was apparently taking photographs of things that were clearly visible in public rather than going through the kind of covert steps necessary to take an “upskirt” photo. The Court ended up striking the entire law down, though, because it was overly broad in what it covered, including, in that case, photography of something that it is easily visible to members of the general public.

On the surface, it does seem as if some of these types of photographs ought to be illegal. The idea of people, mostly men, going around photographing women or even children in some manner that is clearly meant to be sexually provocative is creepy, and possibly indicative of someone who might be dangerous in other ways. At the same time, though, the fact that something is creepy doesn’t mean that it should be illegal. It’s easy, I think, to argue that “upskirt” photos or other photographs that require some kind of manipulation of a camera in order to be taken ought to be illegal whether or not their is nudity involved or not. A woman ought to have a reasonable expectation that people aren’t walking around taking pictures up her skirt on the subway or elsewhere. The same would obviously be true of photographs taking in changing rooms, locker rooms, or other such places. At the same time, though, if you start criminalizing taking pictures in public then you are heading down a dangerous road that the First Amendment would seem to clearly say that the law cannot go. Because of that, it’s clear that the Judge in the Cleveland case, and even the Texas Court of Criminal Appeals in the Thompson case, got the outcome right notwithstanding the fact that the whole thing has a basic “ick” factor to it.

Here’s the decision in the Cleveland case:

United States v. Christopher Cleveland by Doug Mataconis

FILED UNDER: General, Law and the Courts
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. al-Ameda says:

    I understand the gray areas here – intention and so forth, but really, these days it’s not a big step from taking those pictures and subsequently uploading them to a website.

    I have to wonder how the judge would feel if “upskirt” pictures were taken of her sister, daughter, niece, daughter or friends?

    One thing is certain here: if a male judge had ruled as this judge did, we would have no end of outrage for about a week.

  2. Rafer Janders says:

    When an officer approached him, Cleveland became nervous and attempted to remove the memory card from the camera, according to a search warrant. Officers detained him after a struggle and found images of women’s buttocks on the camera and hundreds of comparable shots from other outings on a computer in his car.

    Can’t really disagree with the ruling. What’s disturbing here is (a) the fact that the police apparently felt free to grab someone’s camera and look through the images,and (b) that they then went into his car and searched through his computer, all without a warrant. What cause did they have to arrest him, presuming he did not consent to the search and detention?

    If you find yourself defending the police here, switch the scenario and make it a photographer at a demonstration being approached by police who take and search through his camera and computer. If that should be illegal, so should this.

  3. Rafer Janders says:

    @al-Ameda:

    I have to wonder how the judge would feel if “upskirt” pictures were taken of her sister, daughter, niece, daughter or friends?

    Bad, presumably, but the fact that someone feels bad about something doesn’t mean it’s illegal. The police should not be able to detain, arrest and search someone for activities that, while disturbing to many, are not in themselves illegal.

  4. al-Ameda says:

    @Rafer Janders:

    Bad, presumably, but the fact that someone feels bad about something doesn’t mean it’s illegal. The police should not be able to detain, arrest and search someone for activities that, while disturbing to many, are not in themselves illegal.

    I agree, as Doug said, there is an “ick” factor at play here.

  5. gVOR08 says:

    What the guy did was offensive, a violation of accepted norms, and, as Doug points out, pretty icky. Not reasons to make it illegal. If everything I think is icky and offensive was illegal, a lot more people would be in jail.

  6. Rafer Janders says:

    A key point to keep in mind with cases like this is that, in order to enforce them, you’re basically giving police the right to walk up to people in public and demand to look through their cameras and cellphones. And that’s not a right I want them to have. That’s not a right they won’t abuse.

  7. Paul L. says:

    @al-Ameda:
    So the solution is to outlaw any photography that make the subject uncomfortable?
    I am sure you can count on the support of law enforcement for that.

  8. Scott says:

    I know at school swim meets we attend, photography has been forbidden from behind the blocks. We also caught creeps with telephoto lenses at meets attempting to get crotch shots.

    I guess the answer is constant vigilence but still, the constant worry is exhausting.

  9. stonetools says:

    @Rafer Janders:

    One problem here is a matter of public order. If I saw someone taking such pictures of my wife or daughter, I would be tempted to do a heckuvalot more than “detaining” him, if you get what I mean. Hitting him over the head with something solid and reducing his camera to fragments seems about right-and I’m sure a lot of guys would feel the same.
    Rather than encouraging the “self help” option, there’s something to be said for allowing the “King’s men” to do something to deter such behavior. I could see the cop being allowed to make an investigatory stop if he sees the person manipulating the camera in a suspicious manner so as to invade the privacy of women. A search of the camera or the computer should normally be subject to the warrant requirement.

    All this would have to be subject to a carefully drawn law that balances the expectation of women to privacy with constitutional protections.

  10. @Scott:

    The difference is that a school swim meet is, in some sense, a private event or at least one that is not open to the general public and that one can set rules for personal conduct that aren’t necessarily matters of criminal law. In the D.C. case, you’d essentially have to outlaw photography on the National Mall to cover what the Defendant in that case actually did.

  11. stonetools says:

    @Doug Mataconis:

    So I guess those damned women should stop flaunting themselves and wear burkhas, then? Surely you don’t think that?
    A balance can and should be struck here. DC legislators, earn your keep.
    I agree with you, though, that the judge got it right this time.

  12. @stonetools:

    I don’t know. It would not be easy to write a statute that would cover something like this that would not be likely to be seen as unconstitutionally overly broad by a court.

  13. Rafer Janders says:

    @stonetools:

    So I guess those damned women should stop flaunting themselves and wear burkhas, then? Surely you don’t think that?

    Suppose I was a foot fetishist who became very excited by women’s feet. Should I be barred from taking pictures of women’s feet in public? If so, how should this be enforced?

    It’s very, very difficult, and more than a little troublesome, to attempt to police and legislate away behavior that we find “icky.”

  14. Rafer Janders says:

    @stonetools:

    A balance can and should be struck here. DC legislators, earn your keep.

    How do you think such a law should read?

  15. wr says:

    @al-Ameda: “I have to wonder how the judge would feel if “upskirt” pictures were taken of her sister, daughter, niece, daughter or friends?”

    I sincerely hope that the judge would feel outraged and violated on behalf of these women, and yet would rule the same way because the decision is based not on personal feelings but on the law.

    Of course, that would require that this judge not be a Republican.

  16. Jay Wolman says:

    @Doug Mataconis: Reactive legislating can also raise overbreadth considerations as a matter of policy, without even reaching constitutional questions. See, this article at the Legal Satyricon.

    At the end of the day, people cannot avoid Rule 34 of the internet.

  17. stonetools says:

    @Doug Mataconis:

    Difficult but not impossible, no? The law has been policing what people can do in public-with mixed results-for a long, long time. I know I can’t jerk off naked in front of women and children on the Lincoln Memorial-even if I claim it’s public performance art. Lines can be carefully drawn.

    @Rafer Janders:

    Dunno, man , I’m not a legislator. I would start here:

    It’s easy, I think, to argue that “upskirt” photos or other photographs that require some kind of manipulation of a camera in order to be taken ought to be illegal whether or not their is nudity involved or not. A woman ought to have a reasonable expectation that people aren’t walking around taking pictures up her skirt on the subway or elsewhere.

    I would focus on whether the guy is clearly manipulating the camera in order to take these type photos. That conduct can be made illegal.
    I notice too that your sympathies are all with the poor photographer: seems to me that you should spare a thought for women being objectified and violated. They get a vote, too.
    I say all this, BTW, as a liberal who takes public photos every day. I don’t want my rights taken away: but I don’t want women to feel threatened and violated by these creeps either

  18. Modulo Myself says:

    @stonetools:

    The truth that people (e.g. men) don’t want to say is that much of how men treat women is the equivalent of public exposure if you’re a woman. I don’t know what boundaries the law should draw, but the patriarchal obliviousness of men towards the public environment is inexcusable.

    Overall, I think we are heading to a point where people would actually welcome a national speech/conduct code rather than having to deal pretending to decipher out what’s harassment and what’s free speech when there is such a large class of people who operate on principles of 24/7 vituperation and abuse.

    I don’t think we should have one. But it’s pretty clear that your average man really has been sheltered from the results of his actions, and that this privilege lies behind much of what your average man thinks free speech is.

  19. Rafer Janders says:

    @stonetools:

    I would focus on whether the guy is clearly manipulating the camera in order to take these type photos. That conduct can be made illegal.

    Again, I don’t see how. All cameras are “manipulated”. If someone is sitting on steps in front of me, and I’m at street level, all I have to do to “manipulate the camera in order to take these type photos” is to hold it to my eye and shoot straight ahead. Or I can stand across the street and use a zoom — just as I would if I was just trying to get a shot of the steps themselves.

    I notice too that your sympathies are all with the poor photographer: seems to me that you should spare a thought for women being objectified and violated.

    No, my sympathies are with the law. If it’s not illegal, then the police have no business arresting someone for it. I have many thoughts and much sympathy for the women, but I don’t believe that the police should act based on my feelings.

    They get a vote, too.

    Yes, they do, and if they get enough votes together, they can pass a law, supposing however that that law passes First Amendment muster.

  20. Rafer Janders says:

    @stonetools:

    Dunno, man , I’m not a legislator.

    Believe me, you’re smarter and a better writer than most legislators. Give it a shot.

  21. Rafer Janders says:

    @stonetools:

    I notice too that your sympathies are all with the poor photographer:

    I denied above that my sympathies are with the photographer, but upon thinking about it that’s not quite right. My sympathies are with future photographers, of all stripes, who will have to resist the police attempting to seize and search their cameras — and that means seizing and searching their cell phones and computers, these days.

  22. Gustopher says:

    This has been going on forever, and here’s a site that documents some of the creepy peepers in NYC: http://www.normalbobsmith.com/amazingstrangers/peepers/

    (You might not want to watch the videos on the site if you are easily disgusted by creepy people being creepy)

    Not sure how anyone would craft a law to stop this that would actually be enforceable and not prone to abuse by law enforcement (are you loitering with lascivious intent, or just hanging out and the cop doesn’t like the look of you).

    I think I trust the creepers more than the cops.

  23. stonetools says:

    @Rafer Janders:

    Well, thanks for the compliment. I think you and my many down voters discount what might happen in the absence of a such a law-that the public might resort to “self help”. Suppose the woman being photographed kicks the creep in the testicles, and breaks his d@mned camera over his head, because she has no legal recourse. Is this the kind of thing we want to see happen?

    This is what happened, in the instance of someone wearing Google Glass:

    SAN FRANCISCO —San Francisco police are trying to identify three suspects in an altercation over Google’s new Internet-connected, head-mounted computer at a city bar.

    Police spokesman Albie Esparza says a woman told investigators the suspects thought she was recording them with Google Glass while she was at the bar in the city’s Haight-Ashbury neighborhood around 1:45 a.m. Saturday.

    One of them allegedly took the glass and ran off. The woman said she was able to retrieve it, but her purse and cellphone were stolen.

    Read more: http://www.kcra.com/news/google-glass-sparks-fight-at-san-francisco-bar/24664368#ixzz3G3XzzqH9

    In the absence of law, you might see a lot of such kinds of incidents if people think the law won’t or can’t help with the creeps trying photograph up their skirts. And no, I don’t think the solution is to tell women victimized in this way to “get over it” and that “they shouldn’t be wearing such short skirts anyway”.

  24. Anonne says:

    This guy wasn’t randomly chosen, he must have been doing something to catch someone’s attention why the police identified him out of how many hundreds of people at the mall.

    The instinct that upskirt photos were illegal may have been legally incorrect, although morally correct. How many people defending police brutality and unreasonable search defend it from this angle? Some yahoo who is legally wrong calls the police, getting someone else in trouble?

    That said, the law does need to be crafted better so as to better protect people from this kind of activity. If a guy is walking around with his zipper down, do we have the right to zoom in and photograph it and potentially post it on the Internet? I’d like to say that the answer should be no, not without consent.

  25. Rafer Janders says:

    @Anonne:

    If a guy is walking around with his zipper down, do we have the right to zoom in and photograph it and potentially post it on the Internet? I’d like to say that the answer should be no, not without consent.

    If he’s walking around in public yes, you do. What’s out in public, within public view, can be photographed, recorded, etc., and you don’t need the subject’s consent.

    You would, however, need their consent if you tried to use their image in an ad, etc. or somehow tried to create an impression that the subject of your photo was endorsing a product or position.

    Post a photo of him with his zipper down to make fun of him? Fine. Incorporate that photo into an ad for a zipper repair service? Not fine.

  26. Anonne says:

    Sorry, Rafer, I can’t get behind zooming in on people’s private parts when they were not intended to be displayed in public. There is a difference between catching someone’s wardrobe malfunction as part of a bigger picture and zooming in on their privates.

  27. Rafer Janders says:

    @Anonne:

    OK, but it’s not a matter of you getting behind it or not. It’s a matter of the law, as written, not banning this kind of behavior, and of it being very very difficult to write a constitutionally-permissible law that would.

  28. Rafer Janders says:

    Or, in other words, icky, distasteful, creepy and gross does not equal illegal, and does not equal something the police should be able to detain, search and arrest someone for.

  29. al-Ameda says:

    @Paul L.:

    So the solution is to outlaw any photography that make the subject uncomfortable?
    I am sure you can count on the support of law enforcement for that.

    Um … no, Paul. As you might have noticed (or not) I did say that this incident and result is unpleasant , perhaps “icky,” but tough to deal with from a legal standpoint.

  30. Gustopher says:

    @stonetools:

    And no, I don’t think the solution is to tell women victimized in this way to “get over it” and that “they shouldn’t be wearing such short skirts anyway”.

    To paraphrase Spider-Man’s uncle Ben: “With short skirts comes great responsibility”

    Is there anyone, anywhere who doesn’t know that short skirts can lead to exposure when sitting down? If you wear a short skirt in public, then yes, you have to be careful. And that means not sitting on steps.

    I’m not saying the guy isn’t creepy, because he is, but you don’t have an expectation of privacy in a public space — whether you are deliberately unclothed, have a wardrobe malfunction, or are wearing clothing with well-known limitations, or are holding a sign that says “Get a brain, morans!”.

    (I love that moran guy…)

  31. Gustopher says:

    @Anonne:

    This guy wasn’t randomly chosen, he must have been doing something to catch someone’s attention why the police identified him out of how many hundreds of people at the mall.

    The police officer was not responding to a complaint. It is likely that the guy was there for longer than the officer would have expected (possibly every day), photographing.

    Which is a greater threat to your liberty — a creepy guy hanging out, or police officers deciding that you have been somewhere longer than they think you should and having the authority to search your person and possessions because of this?

    I’ll trust the creepy guy over the cop.

  32. beth says:

    @Gustopher: Exactly. As a woman, I would feel seriously creeped out if while standing on a bus or train, some idiot decided to film my swaying breasts and set it to music on YouTube. However, I’m not sure I’d want being a jerk to be an arrestable offense. (I’d miss the moran guy too!) I’ve been thinking about whether you could write a law to cover this situation and I just don’t think you can. I think it’s something we need to put up with in order to have the kind of society that allows us to take pictures of the moran guy. Now, if they start trying to take pictures under the skirt or down the shirt, areas that weren’t exposed to the public, now that would be a different story.

  33. stonetools says:

    @beth:

    Now, if they start trying to take pictures under the skirt or down the shirt, areas that weren’t exposed to the public, now that would be a different story.

    And this is precisely what the law in Massachusetts was drafted to deal with. What say you about that law? So far as I can tell most posters here (men, so far as I can tell) oppose that law too.

    “We are sending a message that to take a photo or video of a woman under her clothing is morally reprehensible and, in Massachusetts, we will put you in jail for doing it,” state Senate President Therese Murray said in a prepared statement. “We will need to revisit this law again and again as technology continues to evolve and ensure that we are providing the necessary protections.”

    Recognizing how technology plays a part in amplifying the violation is key, victim advocates say. The images can, in no time, make the international rounds online.

    “I think there’s a fear among people that you could have an ‘upskirt’ photo taken of you and never realize it,” said Emily May, executive director of ihollaback.org, a website that encourages women to share their stories and cell phone photos of harassers. “Your crotch could be on the Internet, and you may never know about it.”

  34. stonetools says:

    @Gustopher:

    Is there anyone, anywhere who doesn’t know that short skirts can lead to exposure when sitting down? If you wear a short skirt in public, then yes, you have to be careful. And that means not sitting on steps.

    I’m not real happy with “she was wearing a short skirt, so she deserved to have her privates photographed and uploaded to the Internet, to be displayed for all time”.

    I think we can do better than that.It shows a kind of callousness to women that again, seems automatic if you are a guy.

  35. grumpy realist says:

    How about this: you have the right to take whatever photos you want, and we have the right to beat you up and smash your camera if we feel you’re violating our privacy?

    Fair’s fair, after all.

  36. Tillman says:

    @stonetools: Not really a matter of deserving anything, more a matter of expectations. If you expect everyone in the world to be a lady or a gentleman, you’re bound to be disappointed at the least. If you expect there to be laws criminalizing the evils of the world, you’re going to be downright depressed.

  37. stonetools says:

    @grumpy realist:

    Indeed, the absence of legal recourse invites just that type of response. I notice the men are all really quiet as to whether they would condone or agree to such a response. I think that they are saying that women should just suck it up and endure it, because FIRST AMENDMENT! But the First Amendment says nothing about private response to such a violation.

  38. stonetools says:

    @Tillman:

    SOOO-suck it up, ladies, amirite?
    Or wear a burka?

  39. Gustopher says:

    @stonetools:

    And this is precisely what the law in Massachusetts was drafted to deal with. What say you about that law? So far as I can tell most posters here (men, so far as I can tell) oppose that law too.

    I think that is a fine law. But, it doesn’t address this case.

    There is a difference between viewing (or photographing) someone from an angle that requires extraordinary measures to achieve, and viewing (or photographing) someone from an angle that is normally exposed to the public.

    In the Massachusetts case, there is a reasonable expectation of privacy, although the law had not caught up to it because it required nudity and hadn’t considered that people might be interested in underwear. But, all the private bits (including the underwear) were covered by clothing.

    The Massachusetts law also outlaws only a very specific set of behaviors that are clearly identifiable.

    There is no evidence that the creepy man at the Lincoln Memorial was doing anything that could be noticed by anyone other than the police officer. Photographing the Lincoln Memorial is a normal thing to do. Photographing people at the Lincoln Memorial is a normal thing to do.

    Empowering the police to determine when your normal activity seems suspicious and thus prone to a search is going to lead to very selective enforcement.

  40. beth says:

    @stonetools: I do agree with the Mass law and get the feeling most of the men here do too. It’s a crappy situation without a good solution. I’m stumped for a good answer.

  41. Gustopher says:

    @stonetools:

    I’m not real happy with “she was wearing a short skirt, so she deserved to have her privates photographed and uploaded to the Internet, to be displayed for all time”.

    I think we can do better than that.It shows a kind of callousness to women that again, seems automatic if you are a guy.

    I’d be ok with a narrowly tailored law requiring signed consent forms for the publication or distribution of photos or videos of genitals, underwear, or other carefully enumerated naughty bits where there was either an effort to conceal them or the appearance of an effort to conceal them (a carveout for photos of beaches, but not allowing for the “she meant to show her panties sitting on the steps of the Washington monument” defense).

    We require pornography to have consent forms showing age, this would be no different.

    But, that’s very different than having the police deciding this particular person looks vaguely creepy, so let’s search him.

  42. Rafer Janders says:

    @grumpy realist:

    How about this: you have the right to take whatever photos you want, and we have the right to beat you up and smash your camera if we feel you’re violating our privacy?

    Great: so if I take photos of a bunch of gay-bashers harassing a gay couple, they have the ight to beat me up and smash my camera because I’m violating their privacy?

  43. Rafer Janders says:

    @stonetools:

    I’m not real happy with “she was wearing a short skirt, so she deserved to have her privates photographed and uploaded to the Internet, to be displayed for all time”.

    No one says people “deserve” it. What most people here are saying, I believe, is that the law as currently written doesn’t ban this, and that’s its very very hard to craft a law of general applicability that would without running afoul of the First Amendment, or that couldn’t be used by the police to shut down legitimate news-gathering.

  44. Gustopher says:

    @stonetools:

    SOOO-suck it up, ladies, amirite? Or wear a burka?

    If you sit on the steps of the Lincoln Memorial in a burka, there is a significant chance that your ankles will be showing, unless you are careful. And they are exposed for all the world to see, and because you have exposed your ankles in a public space, you don’t really have a right to privacy.

    This is one of the things you have to worry about while wearing a burka.

  45. Rafer Janders says:

    @stonetools:

    I notice the men are all really quiet as to whether they would condone or agree to such a response

    I’m not — I wouldn’t condone or agree to it. Assault is assault, and I’m not a fan of vigilante justice. (And if we’ve learned anything from history — and we haven’t! — it’s that vigilante justice is just as likely, if not more so, to be used against the oppressed as for them).

  46. Rafer Janders says:

    @stonetools:

    SOOO-suck it up, ladies, amirite?

    Like I said, if you think you can write a law that can criminalize this, without otherwise criminalizing ordinary street photography or news gathering, then have at it. But if you can’t, you’re basically just asking the police to act as morality enforcers. And we know how well that will turn out….

  47. anjin-san says:

    I’m not sure criminalizing photography in public places is a road I want to go down, regardless of the creep factor we are discussing.

    We already have police forces attempting to prevent people from lawfully taking photos and videos. We already have police viewing cell phones as handy all purpose intel gathering devices to be used against criminal and law abiding citizen alike.

    I think socially ostracizing offenders is probably a better way to go. And if some of them get their asses kicked along the way, I don’t think anyone will be heartbroken.

  48. stonetools says:

    @Gustopher:

    OK, I appreciate the response. So it IS possible to draft a law that protects female privacy and meets First Amendment concerns. If you look at the responses of the OP and others, you would think that drafting such a law was impossible, or nearly so, and that it would be unwise even to attempt drafting such a law.

    There is no evidence that the creepy man at the Lincoln Memorial was doing anything that could be noticed by anyone other than the police officer. Photographing the Lincoln Memorial is a normal thing to do. Photographing people at the Lincoln Memorial is a normal thing to do.

    I said above that the judge made the right call, and called on the DC legislators to do as Massachusetts did.

    There is a difference between viewing (or photographing) someone from an angle that requires extraordinary measures to achieve, and viewing (or photographing) someone from an angle that is normally exposed to the public.

    I would agree. Other posters above would say no, and insist on a perfect law or none at all.
    I notice that you like others, seem untroubled at the idea that in the absence of law, people would apply “self help options”. I think this is not a thing to ignore.
    To go back to Spiderman, Spidey started beating up and catching robbers after Uncle Ben was killed by a robber. Maybe the boyfriend of a girl victimized in such a way might decide to execute some “Spiderman” justice on the creep. Is this really something we want to encourage?

  49. Tillman says:

    @stonetools: Between the corruption of public photography for carnal purposes and the corruption of anti-harassment laws for criminal enforcement, I think the bigger downside is found in the latter. Does that count as victim-blaming?

  50. Rafer Janders says:

    @stonetools:

    I notice that you like others, seem untroubled at the idea that in the absence of law, people would apply “self help options”. I think this is not a thing to ignore.
    To go back to Spiderman, Spidey started beating up and catching robbers after Uncle Ben was killed by a robber. Maybe the boyfriend of a girl victimized in such a way might decide to execute some “Spiderman” justice on the creep. Is this really something we want to encourage?

    No. Those people should be prosecuted.

  51. Rafer Janders says:

    @stonetools:

    Other posters above would say no, and insist on a perfect law or none at all.

    No. Other posters insist on a law that complies with the First Amendment. Or at least more perfect than “don’t photograph stuff I think is creepy.”

  52. Rafer Janders says:

    @stonetools:

    So it IS possible to draft a law that protects female privacy and meets First Amendment concerns. If you look at the responses of the OP and others, you would think that drafting such a law was impossible, or nearly so, and that it would be unwise even to attempt drafting such a law.

    But the Massachusetts laws was more narrowly tailored than the DC situation. Even under the MA law, what the guy did at the Lincoln Memorial wasn’t a crime. So yes, it is indeed very difficult to craft a law that would apply in every case you would like it to apply to without also impinging on perferctly normal street photography or news gathering.

  53. stonetools says:

    @Rafer Janders:

    I don’t like vigilante justice, either. The problem is that in the absence of legal recourse, vigilante justice tends to spring up and flourish. That’s why I’m calling for a well crafted law, even if such a law isn’t perfect.It’s not because why I want to go crushing the First Amendment or because I want to enable a police state. What I want is ordered liberty , with protections both for the photographer and for women. That’s rationally achievable, and you don’t have to sacrifice one for the other.

  54. Gustopher says:

    @stonetools:

    I’m not real happy with “she was wearing a short skirt, so she deserved…

    I wouldn’t say “she was wearing a short skirt, so she deserved…”, I would say “dress appropriately for your activities” and “don’t expect to expose yourself and criminalize looking”.

    High heels have known issues with foot support, and are a poor choice if you expect to be running. You can run, but you might want to consider your heel.

    Short skirts have known issues with crossing legs and sitting down, and are a poor choice if you expect to be sitting on steps where your knees are likely to be above your hips.

    These are just basic things to be aware of. Also, jumping jacks and tube tops are a bad combination.

    I don’t mean to belittle how intensely creepy this man was — but crafting a law to make his activities illegal without making many other activities illegal, and which does not open the door to police abuse is incredibly difficult. I’d love to see one, but I don’t think it is possible.

  55. stonetools says:

    @Rafer Janders: @Tillman:

    Between the corruption of public photography for carnal purposes and the corruption of anti-harassment laws for criminal enforcement

    Well, it’s a good thing we can avoid that dilemma through properly crafted legislation, then.

  56. Rafer Janders says:

    @stonetools:

    That’s why I’m calling for a well crafted law, even if such a law isn’t perfect

    You’re calling for one, but I can’t think of how to write it, even if non-perfect — and I’m a lawyer myself.

    Just because we want something doesn’t mean we can have it — or that we can have it without a host of unintended and even worse consequences.

  57. Rafer Janders says:

    @stonetools:

    Well, it’s a good thing we can avoid that dilemma through properly crafted legislation, then.

    And that would say…what, exactly? And make sure to craft it so that it doesn’t become an open excuse for the cops to grab everyone’s cell phone.

  58. stonetools says:

    @Rafer Janders:

    So yes, it is indeed very difficult to craft a law that would apply in every case you would like it to apply to without also impinging on perferctly normal street photography or news gathering.

    I’m just glad you agree its POSSIBLE, because for a minute there I sure doubted that you believed it was possible.Lots of things in life are very difficult, but worth doing.I believe this is one of them.

  59. Gustopher says:

    Also, since it seems appropriate to this conversation… Snapchat photos have been stolen and published online.

    http://www.themarysue.com/snapchat-no/ (no photos here)

    Here there actually is a very strong expectation of privacy, some of the subjects are underage, and it is creepy as hell.

    Going after things like this, and the revenge porn sites, is a lot more important that the creepy guy sitting around all day at the steps waiting for someone to uncross their legs, and it is something that doesn’t risk eroding everyone’s liberty to go after with the full force of the law.

  60. stonetools says:

    @Rafer Janders:

    And that would say…what, exactly? And make sure to craft it so that it doesn’t become an open excuse for the cops to grab everyone’s cell phone.

    I would have to think on it, but we can start with the Massachusetts law as a model. This might be difficult, but its not Apollo moon landing difficult. It can be done.

  61. wr says:

    @stonetools: “Indeed, the absence of legal recourse invites just that type of response. I notice the men are all really quiet as to whether they would condone or agree to such a response. ”

    Go ahead, beat the hell out of the creep. I doubt they could find a jury to convict you.

    But there’s a world of difference between you taking personal action against someone who has done something icky to you and giving the state sweeping powers to regulate photography in public, even if not granting the power allows icky people to do slimy things.

  62. Tyrell says:

    @Rafer Janders: I would hope that taking and putting explicit photos of women without their expressed written permission on the internet would be illegal.
    What if these were photos of children ? Would this judge make the same decision?

  63. Tyrell says:

    @Doug Mataconis: Public school events are open to the public and usually charge an admission. Schools have the right to set the rules and can limit photography. They can also remove weirdos and nutcases.

  64. Ben says:

    @stonetools:

    I would have to think on it, but we can start with the Massachusetts law as a model. This might be difficult, but its not Apollo moon landing difficult. It can be done.

    You keep saying that, but you’re ignoring that the Mass law wouldn’t cover the situation that happened in DC. The Mass law criminalizes situations where people are photographing areas that are not exposed to the general public, like holding the phone underneath a girls skirt as she walks down the street. In DC, these women were sitting in such a way that their crotches were exposed to the general public. They were “wardrobe malfunctions”, which the Mass law specifically doesn’t address. Hell, if it did, the paparazzi would all be out of a job.

  65. Stonetools says:

    @Ben:

    I have said a couple times now that the judge reached the correct verdict. My point is that there is no law in DC now that protects women even in the Massachussets situation, and that DC legislature need to write such a law.

  66. Stonetools says:

    @wr:

    But there’s a world of difference between you taking personal action against someone who has done something icky to you and giving the state sweeping powers to regulate photography in public, even if not granting the power allows icky people to do slimy things.

    Well, then it’s a good thing I’m not asking for such a law. We both agree THAT would be terrible.