Does the 1st Amendment Protect Up-Skirt Photo-Takers?

Over three years ago, 31-year-old Michael Robertson of Andover, Massachusetts was arrested for allegedly attempting to take photos up women's skirts on the subway. Robertson was charged with two counts of photographing an unsuspecting nude or partially nude person and, after his municipal court trial was stayed pending appeal, the Massachusetts Supreme Judicial Court heard his case yesterday. Sara Brown wrote about it in the Eagle-Tribune.

This might sound like just another disgusting-but-ridiculous case, but its implications are terrifying. Attorney Michelle Menken, who's representing Robertson, cited the First Amendment and argued that, "What he saw was in plain sight. He did not place his camera directly up a woman's skirt. He saw what was in front of him." This is nothing but an application of the old "she was asking for it" argument often used against victims of rape and sexual assault.

As Erin Gloria Ryan put it, Menken's argument amounts to saying that, "When you go out in public and happen to be a lady, people are going to take pictures of you. It's just an occupational hazard of existing in public." And if unwanted pictures are deemed harmless, what about unwanted touching? What about sexual violence?

Arguing on behalf of the state, Attorney Cailin Campbell pointed out that, "there is an understandable expectation that one can have on not being photographed like that in that kind of setting." Unfortunately, that expectation is not always understood, as Robertson demonstrated when he decided to victimize these women. If he's convicted, he'll face over two years in jail. If he's not convicted, it will send a sinister and dangerous message about women's bodily autonomy and safety in public.


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Follow Sara Brown on Twitter @Sara_Brown_Trib.