Behind Texas Court’s Decision to Strike Down “Upskirt” Photography Ban

The recent Texas Court of Criminal Appeals ruling regarding “upskirt” photography – pictures taken covertly under women’s skirts in public and without their consent – has understandably drawn much outrage. The case has been widely described as ruling that it is legal to take these kinds of photos, which has generated a great deal of shock and anger.

The court’s ruling did strike down a statute that would have outlawed this practice under the First Amendment’s Free Speech protection. However, a closer examination of the court’s decision and the statute in question demonstrates that this outcome was, more than anything, the result of extremely poor statutory drafting on the part of the legislature.

A law is unconstitutional under the First Amendment when it is overly broad. That is, even if the law aims to achieve a permissible purpose, if the language used encompasses substantially more conduct than intended, the law is unconstitutional.

The portion of Texas Penal Code Section 21.15 (the “improper photography or visual recording” statute) that was called into question was subsection (b)(1), which stated photographing or electronically recording a person is a crime if the photo or recording “is made without that person’s consent” and “made with the intent to arouse or gratify the sexual desire of any person.”

The State Attorney argued that the First Amendment did not apply because the statute did not target the “speech” (the photograph), but rather the “act” (the taking of the photograph). The State Attorney further argued that, even if the First Amendment did apply, the statute was limited by the consent requirement and, thus, not overly broad.

Under the State Attorney’s interpretation, if the photograph is of an area that is not exposed to the public, (such as a photograph taken up a woman’s skirt) the improper-photography statute criminalizes the behavior, if done with the requisite intent (to arouse or gratify sexual desire). However, if the photograph is of an area that was exposed to the public, (such as a photo of a woman wearing a swimsuit) the statute does not apply.

The State Attorney is bending over backwards to make this statute work, essentially asking the court to approve of an entirely different version of the statute than what is “on the books.” The argument that the act of photography (as opposed to the photo itself) is not a form of speech that invokes the First Amendment is nonsensical; and the State’s interpretation of the term “consent” is extremely broad.

The Defendant argued that, while the legislature has a legitimate interest in prohibiting “upskirt” photography, the statutory language used “fails to distinguish those situations from merely photographing a girl in a skirt walking down the street.” The court seemed to agree.

It is possible for a court to “save” an overly broad statute by utilizing a narrow interpretation. However, the Texas court felt that the “narrow interpretation” offered by the State Attorney – narrowing the statute, ironically, by using a broad definition of “consent” – was not possible in this case.

The court had previously construed “consent” as meaning “an actual or real agreement after thoughtful consideration,” and felt that the idea that a person consents to be photographed by merely appearing in a public place ran completely counter to this definition.

The court was concerned that imposing a definition of consent as broad as the one proposed by the State Attorney, when no such definition was provided in the statute, invaded the legislative domain and diminished the incentive for the legislature to draft narrowly tailored statutes in the first place. The court was also concerned that a very broad definition of “consent” might be a dangerous concept that, if utilized in this case, might be expanded to apply in other scenarios.

The court concluded by agreeing that a person being photographed in an area not exposed to the public, such as up a skirt, did violate the State’s legitimate interest in privacy, but pointed out that the statute in question was overly broad and did not even contain language addressing privacy concerns.

The court used the next subsection of the statute – Section 21.15(b)(2) – as an example of a provision narrowly tailored to address privacy interests: It is a crime to photograph or record a person in a bathroom or private dressing room. The court also offered some examples of ways that the legislature could have tailored the statute to make it less broad; such as requiring a person’s privacy interest to be invaded or prohibiting specific activities, such as “upskirt” photography.

These suggestions raise the question: Why did the legislature choose to focus on the sexual gratification of the perpetrator, rather than the privacy interest of the victim? What if the intent of the photography was not sexual gratification, but instead to mock or humiliate the victim? Should that victim be entitled to any less legal protection?

The court repeatedly refers to the statute as “protecting an individual from being the subject of someone else’s sexual desires,” stating that this is an unattainable goal. In fact, the statute was actually intended to protect individuals from dissemination of invasive photographs of their body parts by strangers. Clearly, the “sexual gratification” language in the statute confuses this purpose.

Thus, after a closer look, this case seems to illustrate the importance of a carefully drawn statute more than it does the ambivalence of the court towards privacy. It does not appear that the court is declaring “upskirt” photography legal or in any way condoning the behavior. The problem is that the legislature drafted a statute that was overly broad, while simultaneously failing to encompass situations in which personal privacy is invaded with non-sexual motives.

What is needed is a statute that encompass the entirety of the behavior the legislature is seeking to prevent, without also encompassing a wide variety of other behaviors.