Upskirt Photos and the First Amendment

by Dr. Gerard Emershaw

In June 2013, Christopher Cleveland of Springfield, Virginia was arrested by U.S. Park Police when he was found to be photographing women in dresses seated above him on the Lincoln Memorial steps. After his arrest, several photos of women’s crotches and buttocks were found on Cleveland’s camera. D.C. Superior Court Judge Juliet McKenna recently threw out charges of voyeurism that were made against Cleveland for taking these photos at the monument. Judge McKenna said of Cleveland: “The fact that the Defendant was intentionally photographing publicly exposed areas of women’s clothed and unclothed bodies … is repellent and disturbing.” However, more importantly, she stated: “Mr. Cleveland is not alleged to have engaged in any covert or surreptitious behavior but rather was taking photos in broad daylight.”

In an age where privacy is rapidly declining both online—government and corporate data collection—and in public—surveillance cameras, drones, etc.—this appears to be yet another blow against the right to privacy. However, the truth is that this decision is an important defense of the First Amendment.

In regards to reasonable expectation of privacy against government intrusion, the Supreme Court has held that there exists an expectation of privacy. The Court held in Katz v. United States (1967) that what a person “seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Justice Harlan’s concurring opinion created a test—which was later adopted by the Court in Smith v. Maryland (1979)—for determining whether a government search is reasonable under the Fourth Amendment. This test contains two parts. First, “a person [must] have exhibited an actual (subjective) expectation of privacy,” and second, that “expectation [must] be one that society is prepared to recognize as ‘reasonable.’”

The Katz test should also be employed in cases like Christopher Cleveland’s. The women photographed were in public in broad daylight. They were not in a restroom or a fitting room. Cleveland had not set up hidden recording equipment. He openly took the photographs. Nothing that Cleveland captured with his camera was something that could not be seen with the naked eye.

But is this just another version of the misogynistic claim that women who dress provocatively in public are asking to be raped? No. There is every difference in the world between sexual assault and photography. If one does not wish something to be seen and possibly photographed, one needs to keep it hidden and not reveal it in public. Protecting individuals from being looked at in public and being the object of sexual thoughts is ridiculously paternalistic and a seed from which to grow totalitarianism. Thought crime is eerily Orwellian, and any and all such laws against thought violate the natural right to liberty.

Photographs are a form of artistic expression protected by the First Amendment. The photographs taken by Cleveland may be objectionable, but they do not fit into any category of speech that is not protected by the First Amendment—e.g. obscenity. Prohibiting the kind of public photography that Cleveland engaged in would put us on a slippery slope. How soon would it be before the photographing of police or other government officers in public would be prohibited?

(For a much more detailed discussion of natural rights such as freedom of expression, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)