September 10, 2013

A Texas appellate court holds the "Improper Photography" law unconstitutional.

This was the case of a man caught with a digital camera containing 73 photographs of children in bathing suits that the prosecutor said "target[ed] the children's breast and buttocks areas."
The law states a person commits an offense if he "photographs or by videotape or other electronic means records, broadcasts, or transmits a visual image of another at a location that is not a bathroom or private dressing room without the other person's consent and with intent to arouse or gratify the sexual desire of any person" or invade their privacy....

"Thompson argues the statute has a substantial impact on free speech because there is no careful delimitation of criminal conduct, but rather anyone who takes photographs of non-consenting persons is at risk of violating the law," [wrote Justice Marialyn Barnard wrote for the Fourth Court of Appeals panel.] "We agree...."...

"...Thompson argues innocent photographers run the risk of being charged with violating the statute because the government is attempting to regulate thought, a freedom protected by the First Amendment,"" Barnard wrote. "We agree...."


cubanbob said...

While certainly creepy I don't see how this is illegal in of itself. How is a photograph of how someone is legally dressed in public illegal (unless he caught them with a wardrobe malfunction)?

RiverRat said...

This is what happens in an essentially libertarian state. however, touch the kids and get a bullet in the head. It's important to aim high when children are around.

MadisonMan said...

I agree with this ruling.

The law appears to have been written so broadly that anyone could be charged with it if the Police thought poorly of the photographer. And no one should expect privacy at an outdoor waterpark.

I am refraining from commenting on the obvious local angle.

Ann Althouse said...

A lot of people think you shouldn't be allowed to photograph other people's children... that there is a zone of privacy around every child, no matter where that child is.

RiverRat said...

Slapped down an overreach by the prosecutor in my opinion. The law has merit, but frankly, is poorly drafted.

RiverRat said...
This comment has been removed by the author.
MadisonMan said...

A lot of people think you shouldn't be allowed to photograph other people's children.

Well, that lot of people sounds like a collection of busybodies.

If you don't want your own kids photographed, keep them out of the public eye and away from photographers. And if you don't want ANY children photographed, I'll say don't make the government bigger and ever more intrusive just to justify your own irrational fears.

It is not against the law to be creepy, which is what the photographer in question sounds like. Tough luck people. Creeps are everywhere. You can't legislate them away.

Bryan C said...

Good. The law is clearly an insane reaction to a silly moral panic.

"A lot of people think you shouldn't be allowed to photograph other people's children."

Then "a lot of people" can feel free to shout at the offending photographer and persuade them to delete the photo. But a parent's irrational fear doesn't give them any special authority to dragoon police into arresting people they don't like.

When you're in public, you're in public. What people choose to observe and record in public is dictated by courtesy and custom, not by law. A swimming pool on private property could restrict the use of cameras, if they wanted to, and enforce that restriction by asking people to leave. That's not an option for public property.

AustinRoth said...

However, as the article itself points out, this is the first Texas court to rule this way, and the Texas Court of Appeals, based on previously upholding this law, is likely to overturn this ruling.

That is too bad, because while understanding the intent, this law in question is IMHO indeed overly broad in multiple dimensions.

And Ann, you state "A lot of people think you shouldn't be allowed to photograph other people's children... that there is a zone of privacy around every child, no matter where that child is." How can that be enforced?

What if you are taking a picture of your child in a public place (like Sea World), and other children are inadvertently also in the picture?

Should people not be able to take a picture of their child in, say, the splash pool if any other child is in there?


ColibriNoctis said...

Once I actually had a parent upset with me because I drew their child in a Café. They were horrified when I handed them a small drawing of their child's face and her beautiful laugh. I only wanted to capture her sweet innocence on paper. I gave her mom one of the two drawings that I'd done, and couldn't believe the look she gave me... it was cruel and angry as if I'd done something terribly wrong.

I agree that the law has some problems... on the one hand it can get an artist in trouble for following their natural instincts to capture moments, while on the other hand it may help incriminate actual creeps doing the wrong thing. However considering the two options it may be better not to put any innocent people away in an effort to catch just a few criminals that are stupid enough to get caught in public.
(After all the criminal will probably get caught anyway.) Although I must say that unless he is involved in the creation of children's swimwear, his pictures do sound very creepy.

Peter said...

Surely the larger question is whether one has any expectation of privacy in public spaces?

And, really, how much of a stretch is it to say that if it's lawful to look then it's lawful to photograph?

In any case, once we're all equipped with Google Glass 4.0 (or whatever), how could any of this remain enforceable?

Hagar said...

If these people had been in charge of the old country when I grew up, all of us kids would have been in protective custody, and all our parents would have been in jail for child abuse or whatever.

lgv said...

I used to randomly photograph children at play. They make wonderful subjects while out shooting fall scenes. I no longer do it as people might freak out, not they really noticed since I used a long lens.

Yes, we have ingrained this concept that we shouldn't be allowed to shoot other people's children. Of course, parents post their kids pictures all over the internet. Kids post selfies of themselves all over the internet.

I wonder if the photographer were female they would get the same hassling as a mail photographer would. Probably not. The assumption is that any male taking pictures or interacting with children not their own is some kind of perve.

The law as quoted in your post doesn't specify children, so one could apply to any photo taken of a woman in a bikini.

tim maguire said...

The original intent of bans on child pornography was protection of the child from sexual exploitation. That has long since morphed into outlawing an urge defined as deviant.

That's why you see attempts to ban cartoons of naked children, bans on nudity by an adult actor playing a child. The actual children are largely irrelevant.

(And don't even get me started on how this same society that is so over the top paranoid about child sex also aggressively, enthusiastically encourages us to see children as sexual objects.)

Illuninati said...

I'm not quite sure how this law was supposed to work. When my son graduated from college last year, I took his picture along with hundreds of other people. According to the letter of the law, was I a criminal since I didn't get permission from everyone in the crowd? When classmates went up for rewards was it illegal to photograph them without permission?

Eustace Chilke said...

Prosecutors are the rabid dogs of the justice system. I can count on one hand the number of times one of them has made the news by declining to prosecute someone, anyone, that they could convict for anything - unless the person not prosecuted was a government crony.