In a post notable only for its stupid title, Staci Zaretsky writes at Above the Law, Man Claims First Amendment Right To Take Pornographic ‘Upskirt’ Pictures.
Here’s the story to which she links: Lawyer Defends Client’s MBTA ‘Up-Skirt’ Photos, Claims They Should Be Protected by the First Amendment:
A lawyer representing an Andover man arrested in 2010 for allegedly taking photos up women’s skirts on the T argued this week that her client’s actions should be protected by the First Amendment.
The lawyer, Michelle Menken, argued:
A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy.
On Twitter, UNC Professor Jessica Smith asked,
— Jessica Smith (@ProfJessieSmith) November 7, 2013
Which is a question on a par with Zaretsky’s title.
Certainly there are bounds to zealous advocacy, but Menken’s argument is nowhere near those bounds: she’s arguing that her client’s conduct is constitutionally protected. Smith would probably have said the same about my argument that sexually explicit talk to children is constitutionally protected, and we all know what happened with that argument. ((If you don’t know because you’re a visitor from the future, the Texas Court of Criminal Appeals agreed with my argument and held the dirty-talk portion of Texas’s Online Solicitation of a Minor statute unconstitutional.))
It sounds from the news article as though Menken is arguing that the statute is unconstitutional as applied to her client…
…construing the statute so broadly as to encompass photography of clothed people in public venues would render it unconstitutionally overbroad
…rather than unconstitutional as written, but the news article may be getting that wrong.
Conduct other than literal speech, such as photography, may be “speech.” Whether a person taking a photograph for his own personal use (rather than to share) is protected speech is an interesting question. Assume that Menken’s client’s photography was speech (otherwise the First Amendment doesn’t apply).
Here‘s the Massachusetts statute:
Whoever willfully photographs, videotapes or electronically surveils another person who is nude or partially nude, with the intent to secretly conduct or hide such activity, when the other person in such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled, and without that person’s knowledge and consent, shall be punished by imprisonment in the house of correction for not more than 21/2 years or by a fine of not more than $5,000, or by both such fine and imprisonment.
The Supreme Court has never recognized either an “invasion of privacy” or a “lack of consent” exception to the presumption that speech is protected.
So Menken’s argument shouldn’t be, “my client’s photography is speech that should be protected by the First Amendment,” because people could certainly argue about whether it should be. Menken’s argument should, rather, be (and for all I know was):
- Photography is speech.
- The statute is a content-based restriction on speech (photographing squirrels is not a violation; photographing human buttocks is).
- A content-based restriction on speech is presumed to be unconstitutional.
- The Commonwealth must prove that the speech is constitutional.
- To do so, the Commonwealth must show that the speech forbidden by the statute fits into a historically recognized category of unprotected speech.
- The speech forbidden does not fit into any recognized category of historically unprotected speech.
The United States Supreme Court may some day recognize a historical “reasonable expectation of privacy” exception to free speech, and if it’s going to do so it seems to me that a nonconsensual photography case is as likely a place for it to do so as any (and a much more likely a place than nonconsensual publication of consensual photographs). But it hasn’t yet done so, and until it does the Massachusetts courts, if they follow the law, will be constrained to strike down the statute.
So not only is Menken nowhere near the out-of-bounds line for zealous advocacy, but she’s making an argument that every Massachusetts lawyer whose client is charged with violating this statute is ethically obligated to make: if the statute is eventually found unconstitutional, the lawyers who didn’t make the argument may have provided ineffective representation.