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In a stunning blow that defies logic and common sense, the Texas Court of Criminal Appeals struck down part of a law that would protect women from upskirting, ruling that photos of women (and their body parts) taken in public spaces without their permission can be considered, um, art.

“The camera is essentially the photographer’s pen and paintbrush,” Presiding Judge Sharon Keller wrote in the majority opinion. “A person’s purposeful creation of photographs and visual recordings is entitled to the same 1st Amendment protection as the photographs and visual recordings themselves.”

The ruling comes after an appeal from Ronald Thompson, who was charged with 26 counts of improper photography after taking several shots of bikini-clad women and children at a water park in San Antonio. According to The Daily Beast, police found 73 photos of children in their bathing suits, with closeups of breasts and buttocks. Thompson, believing his First Amendment rights were somehow violated, took his case to the high court. Judge Sharon Keller, who wrote the majority opinion, likened the idea of prohibiting creeps from doing creepy shit to a thought crime.

“Protecting 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 1st Amendment was designed to guard against,” Keller wrote. “We also keep in mind the Supreme Court’s admonition that the forms of speech that are exempt from 1st Amendment protection are limited, and we should not be quick to recognize new categories of unprotected expression.”

The Daily Beast’s Emily Shire points out that it’s poorly written law, not the ruling, that is the problem.

In an attempt to protect citizens from unwanted and inappropriate sexualization, Texas passed a law that hinges on determining whether someone took photos with the intention of providing themselves with sexual pleasure regardless of how physically invasive the photos are or the photographer is in taking them. Quoting a previous case, Keller wrote that the statute would allow the government to potentially take a “paternalistic interest in regulating the defendant’s mind.” While “paternalistic” may not have been the wisest choice of words considering the highly disturbing behavior Thompson showed toward children, the decision was about the statute itself, not condoning Thompson’s acts.

In a Massachusetts upskirting case, another man accused of taking shots crotch shots of numerous women on a Boston trolley managed to get off scot-free after the state Supreme Court ruled that the victims weren’t nude enough to be protected by the law. Two days later, Gov. Deval Patrick would sign a stricter bill with more specific language.

I share Shire’s hope that this will force Texas lawmakers to take another look at the current law to make it more coherent, for the sake of the citizens they’ve sworn to serve.

Image credit Nicolas Raymond

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