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Texas Upskirt Photo Ban Ruled Unconstitutional

The Texas Court of Criminal Appeals tossed out a portion of a Texas criminal statute that prohibited taking unauthorized pictures in public for the purposes of sexual gratification after finding that the law violated First Amendment free speech rights.

The state's highest criminal court upheld a lower court decision on Wednesday overturning the law 8-1, reports the Houston Chronicle. Under the law, taking surreptitious photos of a person in a public place, such as upskirt photos of women, was considered a state jail felony. The law was challenged by Ronald Thompson, who was charged under the law in 2011 after taking pictures of clothed children at a San Antonio waterpark.

What was the court's rationale for overturning the law?

Law 'Unreasonably Expansive'

In finding the law an unconstitutional limitation on First Amendment freedom of speech, the court not only found that the law was an invalid content-based restriction on speech, but also that the law was "unreasonably expansive." The court ruled that the law prohibited protected forms of expression, such as taking photographs or visual recordings, in an attempt to criminalize the motivation behind some instances of that expression, sexual gratification.

The law made it a crime to photograph, videotape, or record a person "at a location that is not a bathroom or private dressing room" without that person's consent and "with the intent to gratify the sexual desire of any person."

In her opinion, Presiding Judge Sharon Keller writes: "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."

Forbidding Bathroom, Dressing Room Pictures Still Legal

The court's ruling left standing the second subsection of the Texas law, making it a crime to record or photograph a person in a bathroom or private dressing room. The court suggested that the Texas legislature look to this subsection for insight into how better to craft future attempts to criminalize upskirt-style public photos -- focusing less on the sexual intent of the perpetrator and more on the privacy protections of the victim.

Privacy can only go so far, and it doesn't generally extend into the thoughts of another person. Ultimately, writes Keller, "[p]rotecting 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."

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