Laci Green, a feminist sex educator, produced this graphic:
Laci (whose work I’m generally a fan of) isn’t alone; a lot of blogs and news outlets have said – often in clickbaity headlines – that rulings in Texas and DC recognize a First Amendment right to take upskirt shots of non-consenting women.
That’s not what either judgement said. And it’s damaging when alarming but false stories like these spread.
There are a thousand crucial problems for feminists to be concerned with – the wage gap, the high prevalence of rape, revenge porn, the caregiving gap, sexual harassment, street harassment, attacks on reproductive rights, and I could go on and on. It doesn’t benefit feminism or women when feminists pass around mistaken information; on the contrary, it leads to energy and anger being misdirected.
The Texas judgement (pdf link) said that the law they overturned was unconstitutional because it was overbroad – that is, the law was so broadly written that it could apply to a bunch of constitutionally protected photos, rather than focusing narrowly on upskirt shots (for instance, the judge wrote “this statute could easily be applied to an entertainment reporter who takes a photograph of an attractive celebrity on a public street”). In fact, the ruling flat-out said that a narrow law banning upskirt shots would be constitutional:
We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt. [...]
The DC judgement wasn’t about upskirt shots; it was about under what circumstances cops have sufficient grounds to arrest someone for taking photos.The judge specifically noted that there was no evidence that the photographer the cops arrested was taking upskirt shots:
While the Government has repeatedly attempted to characterize this as an “upskirt” case, there is no evidence that the Defendant positioned his camera on the steps of the Lincoln Memorial or otherwise underneath individuals’ clothing in order to capture clothed or concealed portions of the body.
As far as I can tell, neither decision said that a creep sticking his camera under a skirt is protected by the First Amendment.