Alleged Peeping Tom claims First Amendment right to upskirt

Legal history in the making in Boston courtroom

The Massachusetts Supreme Judicial Court is mulling just whether an alleged upskirter's right to snap women's nether regions is defended by the US constitution, and indeed whether women who unwittingly expose themselves in public have any right to privacy.

Michael Robertson, 31, was cuffed back in 2010 for allegedly attempting to upskirt female passengers on Boston’s Green Line subway with his mobile phone. He's charged with "two counts of photographing an unsuspecting nude or partially nude person", the Eagle Tribune reports.

The accused wasn't in court on Monday as his attorney, Michelle Menken, claimed to seven justices that "the laws regarding taking unwanted pictures of women are outdated and actually protected under the First Amendment".

Specifically, Menken insisted that existing "Peeping Tom" laws "protect women and men from being photographed in dressing rooms and bathrooms [sic] who are nude or partially nude". Since "the women in the photographs cannot be considered partially nude because their underwear covered everything and no private parts could be seen in the pictures taken".

“They have to be in an exposed state to violate the current law and these women were not," Menken noted.

She added: "If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy."

Attorney Cailin Campbell, for the state, disagreed, countering: "There is an understandable expectation that one can have on not being photographed like that in that kind of setting."

Campbell then told the justices that since the matter was of "upskirt photos of women, they can be considered partially nude even if they were fully clothed".

This prompted Justice Ralph Gants to observe: "So by that standard, everyone in this courtroom could be considered partially nude."

Evidently, the case hangs on the definition of "partially nude", and the court has previously sought clarification.

The justices must, however, also consider whether Robertson is someone who "wilfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity", as the law states.

“The use of a cellphone in public is not secret surveillance,” Menken declared.

Furthermore, there's the matter of the accused's constitutional rights. Menken argued that not only was her client not guilty under current law, but that that were he convicted, his First Amendment rights might be violated.

She said: "For example, say a woman is breast feeding in public and someone who is morally opposed to this or even a journalist takes a picture. The woman may be covered but for some reason the picture shows a little bit of her breast. Now, that person who took the photo can be charged with the same thing."

Justice Gants asked state attorney Campbell: "What if a photographer is doing a project of people on the subway or out in public and he wants to get candids. Can he now not do that?"

Campbell replied: "Just because somebody wants to take a picture, doesn’t mean they should." ®