No, Pervy Subway Guy, It’s Not Your First Amendment Right to Photograph Up Women’s Skirts

And we have a constitutional law expert to prove it.

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A lawyer in Massachusetts is arguing that her client wasn’t breaking the law when he was taking pictures up ladies’ skirts on the subway. Rather, upstanding citizen Michael Robertson, 31, was exercising his First Amendment right.

We’re sure that he keeps his Constitution app right next to his Peeping Tom photo inventory.

“If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy,” attorney Michelle Menkin argued before seven state Supreme Judicial Court judges. “What he saw was in plain sight. He did not place his camera directly up a women’s skirt. He saw what was in front of him.”

She also argued that the women were not partially nude considering that they were all wearing underwear.

The “don’t wear a short skirt” argument also arises disturbingly frequently when authority figures discuss why women get raped, and deploying it in this context certainly made us want to bang our heads against our desks. We decided to reach out to a lawyer who specializes in privacy rights to see how he felt. His professional take? Samesies.

“To say that someone has an expressive interest in taking Peeping Tom photos of women on the T,”  said Washington University Law professor and First Amendment expert Neil Richards, “I would say that that idea is really very silly and it is just not supported by any reasonable understanding of the First Amendment.”

Richards has been teaching law for ten years and has a book titled Intellectual Privacy that will be out in September.

“I care deeply about free speech, but it’s hard to imagine what kind of contribution to anything the First Amendment cares about this guy is doing,” he said. “His actions were intended to expose these women… it’s purposeful, it’s intentional, it’s secret, and it’s menacing.”

While the Miley Cyruses of the world are held  to slightly different standards when it comes to being photographed in public spaces — an ethical question for a different article — private citizens on a subway car still have privacy rights.

Ridiculous as Richards’ thinks the argument is, he does believe that it points to a really important issue of shifting privacy expectations in the digital age.

“It is cases like this that mark out the boundaries of acceptable behavior and what the first amendment does and should protect,” he said.

Menkin argued in court that, “the use of a cellphone in public is not secret surveillance.”

It’s a modern cultural reality that everyone has a camera in his or her pocket. But that does not necessarily give people free range without consequences.

“We have all these new technologies, we’ve never had this kind of capacity before,” Richards said. “What we need to do is figure out how the law, the First Amendment, and our social rules of etiquette fit together with these new tools. It’s a huge social challenge that we are facing as a society.”