A court has upheld the constitutional right of Texans to photograph strangers as an essential component of freedom of speech - even if those images should happen to be surreptitious “upskirt” pictures of women taken for the purposes of sexual gratification.

Criticising an anti-“creepshot” law as a “paternalistic” intrusion on a person’s right to be aroused, the Texas court of criminal appeals struck down part of the state’s “improper photography or visual recording” statute which banned photographing, broadcasting or transmitting a visual image of another person without the other’s consent and with the intention to “arouse or gratify … sexual desire”.

The case stemmed from the arrest of a man in his early 50s named Ronald Thompson who was stopped in 2011 at Sea World in San Antonio after parents reported him swimming with and taking pictures of children aged 3-11. The local district attorney’s office said that he tried to delete the photographs before his camera was seized and a police examination of it revealed 73 images of children in swimsuits “with most of the photographs targeting the children’s breast and buttocks areas”.

Prosecuting lawyers argued that the constitutional right to free speech, which includes taking public photographs, should not be a factor because photography is essentially a technical recording process and that attempted lawbreakers should not be able to hide behind free-speech protections.

Attorneys for Thompson said that the statute was “the stuff of Orwellian thought-crime” and that it did not distinguish “upskirt” or “peeping Tom” photography from “merely photographing a girl in a skirt walking down the street”, so in theory it could criminalise the likes of paparazzi journalists.

The appeals judges appeared to agree, stating that although “upskirt” type-images are intolerable invasions of privacy, the wording of the law is too broad. Presiding judge Sharon Keller wrote in the court’s opinion published on Wednesday: “Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the First Amendment was designed to guard against.”



The judges said that photographs were “inherently expressive”, like other artistic mediums such as films or books, and so the process of creating them, as well as the images themselves, was part of an American’s right to free speech because “thought is intertwined with expression”.

Debjani Roy, deputy director of Hollaback!, a New York-based anti-street harassment group, told the Guardian it is “a huge violation and absolutely appalling that the rights of predators are being valued over the rights of women and girls.”

Thompson was indicted by a grand jury on 26 felony counts of improper photography. After another appeals court declared the statute unconstitutional last year, the Bexar County district attorney’s office issued a press release titled “Cover up while we appeal!”

At least 151 inappropriate photography cases have been filed in the Houston area alone since the law’s introduction in 2001, the Houston Chronicle reported.

One saw a 12-year-old girl convicted and sentenced to a year’s probation for taking a surreptitious photograph of a classmate in a school dressing-room, though the image did not show nudity and was swiftly deleted.

While there is a federal law against taking voyeuristic images on federal property, the issue is generally regulated at state level where seemingly outdated rules have prompted occasional controversies. Earlier this year the highest court in Massachusetts ruled that a man who used his mobile phone to take “upskirt” photographs of women riding the Boston subway did not break the state’s secretive photography law because the women were not nude or partially nude. The following day, lawmakers approved a bill criminalising such behaviour.



