When the media need an opinion on some legal issue, often they will go to the nearest law school. The reasoning—which is sound in theory—is that if a professor lists, say, “immigration law” as one of her subjects, then she will be an expert in the subject.Most law professors, who live lives of quiet desperation writing academic articles that few will ever read, are happy to opine on any subject. Unfortunately, while they sometimes have deep knowledge of narrow areas of law, in other areas—even areas that they teach—they are swimming in the shallow end of the pool.A case in point:
The Texas Court of Criminal Appeals tossed out part of the “improper photography and visual recording” statute. Some reports make it sound like the Court has given the green light to “pervs” taking video or pictures up a woman’s dress. University of Houston law professor Peter Linzer says that’s not so. “Notice this didn’t involve what they call “upskirting” or anything like that. This was a guy taking pictures underwater, of some young girls in bathing suits and there’s nothing wrong with that” says Linzer.
This ruling was based on one specific case out of San Antonio where it was suspected a man took the pictures for sexual gratification. “The Court of Criminal Appeals struck that down because that’s getting in your mind. That’s saying that if you pick up the Bible and want to read about David and Bathsheba and you ”get off” on adultery, that’s a crime. Well we can’t make that a crime. We can’t do that because then how do we decide what’s going on inside people’s heads” Linzer explains.
Peter Linzer demonstrates unfamiliarity with the facts, with the procedure, and with the substantive law.
The fact is that Mr. Thompson was accused of taking pictures above water. It probably doesn’t change the point, ((Does it? Is an underwater picture more like an upskirt picture than an above-the-water picture is?)) but where Linzer got “underwater” is a mystery. Maybe it just sounded better to him.
The procedure was an as-written challenge to a penal statute. When an as-written First Amendment challenge is successful (as in this case) the law is void not only in the cases of speech that we think there’s nothing wrong with, ((Linzer, who thinks there is “nothing wrong with” photos of young girls in swimsuits, taken for sexual gratification, is definitely not invited to my kids’ next pool party. The behavior is creepy, as is the behavior of taking upskirt photos, but there is not a First Amendment Exception for creepiness.)) but also in the case of speech that we think there is something wrong with.
If, as in Thompson, the law forbidding pool pictures and upskirt pictures is thrown out because of an as-written challenge in a case that happens to have involved pool pictures, upskirt pictures are no longer illegal either.
The substantive law that the Court of Criminal Appeals applied in the case was strict scrutiny of a content-based restriction on speech. The substantive law that the Court of Criminal Appeals should have applied in the case was a categorical approach: does the statute forbid a substantial amount of speech that doesn’t fall into an unprotected category?
Under either approach a statute forbidding upskirt photos would fail because upskirt photos do not fall into any category of unprotected speech. For such a statute to survive Constitutional scrutiny the courts would have to recognize a new category of unprotected speech into which upskirt photos fall.
That the Supreme Court would do that is not inconceivable, but whether the Supreme Court will someday recognize another category of unprotected speech has nothing to do with the subject of the article: the effect of the Court of Criminal Appeals’ opinion in Ex Parte Thompson, invalidating the “photography in public” portion of the Improper Photography statute. ((The “transmission of public photographs,” “photography in a dressing room,” and “transmission of dressing-room photographs” portions of the statute are still law, for the moment.))
Someone at the Harris County DA’s Office weighed in as well:
The Harris County D-A’s office is interpreting that as well saying, “It remains illegal if the victim did not know she or he was being photographed. Anything in public appears to be legal. …”
You know what’s awesome? When you can give an opinion to the press on a subject and say directly contradictory things in consecutive sentences.
Peter Linzer and the DA’s Office could have avoided making people stupider by declining to comment to the press on a case with which they weren’t familiar in an area to which they hadn’t given much thought. By choosing not to do so they did the public a disservice.