Legislature Tackles 'upskirt' Photo Law Rewrite

Agreeing with a lower court, Texas' Court of Criminal Appeals threw out the state's improper photography statute on the basis that photos - like paintings, films and books - are "inherently expressive" and protected by the First Amendment. The section of Texas law that was thrown out specifically prohibited improper photography or visual recording "with intent to arouse or gratify the sexual desire of the defendant," It was the language dealing with arousal that the court decision focused on because of the question of how to determine what is in going on in someone's mind. "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," according to the opinion written by Presiding Judge Sharon Keller. Prosecutors, however, say the portion of the Texas law that was struck down was too broad - a photo of a bikini clad woman on the beach or of a cheerleader jumping in the air and doing the splits could have triggered the "intent to arouse or gratify the sexual desire" clause. Comal County District Attorney Jennifer Tharp said the new law, which borrows some aspects from the Massachusetts rewrite, is "more narrowly tailored to only criminalize conduct where's there's reasonable expectation of privacy." Since Texas' improper photo law has been quashed, she said her office has frequently dealt with new upskirting cases but lacks the power to bring charges.

 

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