Is taking nonconsensual upskirt photos protected by free speech?

A Massachusetts lawyer is making that claim in defense of her client, who took cell-phone pictures up women’s skirts on public transportation

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Photograph: Shutterstock/Pan Xunbin


Sexual harassment in public areas—the street, the subway—is an unfortunate part of city life, and the issue has only worsened with the arrival of cell-phone cameras. The matter has come to the Supreme Judicial Court in Massachusetts: A man was arrested for taking surreptitious photos up women's skirts on the T in Boston in 2010, and now he's fighting back by claiming the charges against him should be thrown out because they violate his rights under the First Amendment.

Along with saying that taking these nonconsensual photos is protected under free speech, his lawyer, Michelle Menken, argued that “if a clothed person reveals a body part whether it was intentional or unintentional, he or she cannot expect privacy." Major ICK. She went on to explain that the "Peeping Tom" laws are outdated and don't apply to clothed people in public areas (as opposed to undressed folks in fitting rooms, bathrooms, etc.). Her defense of client Michael Robertson's awful behavior also included the claim that he wasn't breaking any laws since the women in the photos were wearing underwear, which concealed their private parts—and thus can't be considered nude or partially nude.

We have many issues with the arguments themselves and how such a case could affect creeps on the NYC subway, so we reached out to Emily May, executive director at Hollaback!, for a comment. "This argument is appalling and gives perpetrators carte blanche to harass women. The lawyer might as well be saying that women's safety is not a priority and women's bodies are public property," she told us via e-mail. "Upskirt photos, like all forms of street harassment, are gateway crimes. They are on a spectrum of sexual violence and create a culture that make more severe forms of sexual violence okay."

We couldn't have said it better ourselves.

(h/t Eagle Tribune)


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Editor: Marley Lynch (@marleyasinbob)

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