Did Texas Really Rule Upskirt Photos Are Legal?

You may have read media hysteria last week saying Texas ruled upskirt photos are legal. But if there’s one thing I’ve learned while working in the media industry, it’s that writers will often favor snappy headlines to elicit clicks over precision — and those headlines are often misleading.

This is one such case where you need all the details before you go on an angry rant to your boyfriend about the narrow-minded judges in the case — which I did, when I initially read the headlines. Then this piece at Reason led me to dig further into the details. Here’s what really went down:

The issue: Upskirting is not addressed by many laws but it happens to women (and even children!) in public often. Sometimes these photos end up online. It is a gross example of street harassment, and illustrates flawed cultural attitudes in which people do not respect the boundaries of women’s bodies, particularly when they exist in public spaces.

What really happened in Texas: The Texas court struck down a broad law banning photos that “produce sexual arousal or gratification” because it is a violation of free speech — seemingly even photos of attractive celebrities walking down the street could fall under this category.

Banning otherwise protected expression on the basis that it produces sexual arousal or gratification is the regulation of protected thought, and such a regulation is outside the government’s power,” the court stated.

The thing about objectification is that it happens in the mind of the objectifier. If we go around banning photos that we believe prove someone is objectifying someone else, we’re getting into Thought Police territory. It’s a slippery slope to banning all kinds of speech. The court knows this:

“The government cannot constitutionally premise legislation on the desirability of controlling a person’s private thoughts,” it said.

The state can’t tell us what to think, even if our thoughts are icky — and that’s a good thing. Sure, we all want to address street harassment, but we have to be mindful of what power the state exerts over these issues. Laws that are so broad as to limit free speech, however well-intentioned, are not the answer because they could lead to all sorts of infringements on civil liberties. This is one case for ending street harassment and objectification by focusing primarily on education and creating cultural change.

But that doesn’t mean we can’t address upskirt photos in other ways — it’s a privacy violation first and foremost.

The good news: In its ruling, the court addressed that there is room to create a specific law banning upskirt photos because it happens “without consent in a private place,” including “with respect to an area of the person that is not exposed to the general public, such as up a skirt.”

Whew! There you have it — no need to get in a tizzy that upskirting is suddenly a-okay. Laws that broadly limit free speech are not cool, but that doesn’t mean we can’t address gross violations of privacy with specific laws to tackle the matter at its roots. There’s clearly still work to be done to secure justice for upskirt victims.

As street harassment continues to become a more prevalent issue in the public consciousness, let’s hope we can see smart, effective legislation address these privacy invasions in the future.

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