Texas court throws out 'paternalistic' ban on 'upskirt' photos

A Texas court threw out a law banning “upskirt” photos, finding the statute a “paternalistic” violation of free speech guarantees.

The Texas Court of Criminal Appeals ruled 8-1 that photos are “inherently expressive” – just like paintings, films, and books – and are protected by the First Amendment, reported the Houston Chronicle.

"The camera is essentially the photographer's pen and paintbrush," Presiding Judge Sharon Keller wrote in the majority opinion.

The ruling by the state’s highest criminal court upheld a previous decision by the San Antonio-based 4th Court of Appeals.

Ronald Thompson appealed the constitutionality of the law after he was charged in 2011 with 26 counts of improper photography after taking underwater pictures of children swimming at a water park.

He challenged the law before his trial began, arguing that the statute could be used to jail street photographers, entertainment journalists, pep rally attendees, and “even the harmless eccentric.”

The Bexar County District Attorney's Office argued that surreptitiously taken photos were beyond First Amendment protections because the law required illegal intent to be proven, but 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.

A First Amendment law expert said the court ruled correctly, saying “it's hard to see how you could make taking a picture a crime.”

"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?” said Peter Linzer, a University of Houston Law Center constitutional law professor. “That cannot be made a crime in the United States. 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,” Linzer said.