Are Peeping Toms Protected By the First Amendment?

A Boston area man arrested for attempting to take cellphone photos up women’s skirts in 2010 is now appealing his case to the Massachusetts Supreme Court, alleging, among other things, that his conviction violated his First Amendment rights. Oh boy, here we go. Lawyers for the 31-year-old Michael Robertson say that the law on this matter is outdated and warn that other photographers could have their rights trampled on, too. In this case, I’m kind of all for that. Voyeurism isn't a right, last time I checked.

‘Upskirting’ — defined by Urban Dictionary as a “practise [sic] where someone (usually a pervy guy) takes pictures up a girls' skirt unbeknownst to her using his mobile phone or camera” ­— is on the rise in America as cellphones grow more and more common. And many states, including Massachusetts, are considering laws to deal with the problem directly. Florida has already made “video voyeurism” a felony.

But, Time notes that most states haven’t updated their “peeping Tom” laws in a while, and outdated language can make it difficult to prosecute offenders. There’s also the fact that the punishments on the books can seem like a slap on the wrist in world where someone can spread revealing photos to literally millions of people, unlike in prehistoric times when pervs just kept their own twisted, private stash of images in a shoebox in the closet. Oh where have those sweet days gone?

Until these laws are updated, we’ll probably have to keep dealing with cases like Robertson’s where unrepentant upskirters argue they have a constitutional right to violate women’s privacy.

Personally, I don’t know what makes a person think it is remotely okay to photograph under someone’s clothes without their permission. The fact that would-be photographers have to be sneaky about it should be their first clue that this is unacceptable, but apparently getting around a woman’s potential outrage just makes the whole thing a challenging game in the minds of some, rather than a serious crime and unconscionable violation of a woman’s personal privacy.

As the district attorney who prosecuted Robertson’s case said, “You have a right to privacy in your clothes whether you’re at home or on the [train].”