Massachusetts Court Says 'Upskirt' Photos Are Legal 519
cold fjord writes with this CNN report: "Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing — a practice known as "upskirting" — prompting one prosecutor to call for a revision of state law. The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude."
Now that's news for nerds (Score:5, Funny)
Re:Now that's news for nerds (Score:5, Interesting)
Too late, Mass Legislation has already passed the law banning upskirting. It's heading to the governor's desk. If not today, by tomorrow, it'll be signed and put into effect.
Re:Now that's news for nerds (Score:5, Insightful)
"Too late, Mass Legislation has already passed the law banning upskirting. It's heading to the governor's desk. If not today, by tomorrow, it'll be signed and put into effect."
My take on it is very simple:
(A) If it's visible in public, it's fair game. (This is the only way really to square this with so many other free-speech issues.)
(B) Given (A) above, if you're not a public figure, someone else should not be able to publish those photos without your permission.
I think this is a fair balance between fairness, civil rights, and privacy. If you don't want it seen, don't show it. If you are out flashing it in public, you have no reason to bitch about it later.
Re: (Score:3)
How do you determine who isn't a public figure?
Re:Now that's news for nerds (Score:5, Funny)
if you are not private or protected, you are public.
(sorry, been doing c++ too long, I think).
Re:Now that's news for nerds (Score:5, Insightful)
My take on it is very simple: (A) If it's visible in public, it's fair game.
But this is *not* visible in public from a normal human viewing angle. And the typical case that makes news is someone having a camera on a shoe, or suspended from their hand (in a bag or briefcase, for example), to get an angle that a human would only get lying on the floor - not a typical posture in public.
By the way, how do you feel about Google Earth vans putting their cameras on top of a van higher than the typical fence? Or someone floating a camera drone outside your bedroom window? It's the same argument, from above or below: Yes, you're in public, but we have a convention of viewpoint being within a normal range, and if you go out of your way to get an improper viewpoint you're a "Peeping Tom".
USA! USA! (Score:5, Funny)
In Other News... (Score:5, Funny)
Police soon noted an uprise in kilt-wearing flashers~
Does not make sense (Score:5, Insightful)
Obviously, I imagine an upskirt picture does not reveal any more than what you would see at a beach in any western country. I think the issue is that, a person being made to reveal more of herself than she is consenting to, to a person she does not know, and usually without her knowledge. It would be the equivalent of someone being forced to take off her skirt in public without her consent.
Also, what if the woman is not wearing any underwear? It is her business if she is, or is not, and by wearing a skirt she has a reasonable right to privacy in that matter.
Re: (Score:2, Insightful)
If you are in public, you have no right to privacy. If you don't want someone taking a picture from an angle that allows the photographer to see your underwear, or lack thereof, don't wear clothing that allows them to do that.
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Dude, that is absurd. Even a BURKHA / ABAYA is vulnerable from some angle.
Re:Does not make sense (Score:4, Insightful)
At what point do you draw the line between flashing in public then trying to sue the photographer, or just a little nip slip that you don't want published? Answer: there is no such point. It's too arbitrary. Wherever you try to draw that line, somebody is going to get in trouble over something they didn't intend to do.
The only rational place you can draw a line is to say: if you don't want it seen, don't hang it out where it can be seen.
Re:Does not make sense (Score:5, Insightful)
The only rational place you can draw a line is to say: if you don't want it seen, don't hang it out where it can be seen.
That line gets a lot fuzzier if/when people start using infrared/ultrawideband/whatever to see through clothing. I suppose the argument then will be "if you're not encased in lead shielding every time you leave the house, you're pretty much asking for nude photos of yourself to be posted to the Internet".
Granted, that's not a problem yet, but the technology exists. The problem in both cases is that the difference between "what can be seen" and "what people think can be seen" is growing as technology advances. Skirts make an assumption that nobody will have a line-of-sight view from directly beneath you -- an assumption that was never entirely valid, but is a whole lot less valid now that technology has given people access to discreet digital cameras that they can easily position at floor level.
Re:Does not make sense (Score:4, Funny)
Skirts make an assumption that nobody will have a line-of-sight view from directly beneath you -- an assumption that was never entirely valid, but is a whole lot less valid now that technology has given people access to discreet digital cameras that they can easily position at floor level.
In some respects it's like circumventing DRM - an effort was made to conceal (wearing a skirt), but someone deliberately positioned themselves in a abnormal position closer to the floor in order to create a line-of-sight that would not generally be available through normal activity.
Re: (Score:3, Insightful)
Wherever you try to draw that line, somebody is going to get in trouble over something they didn't intend to do.
Meh, the courts are for those edge cases.They make a judgment based on the unique individual circumstances whether the law was violated or not.
In this case the guy was clearly trying to take pictures up her skirt so its simple. He's a creep. Guilty. Big fine + community service or whatever.
If some chick is wearing a shirt that's too loose the wind catches it, and you happen to catch a nip slip or
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"Meh, the courts are for those edge cases.They make a judgment based on the unique individual circumstances whether the law was violated or not."
No, they're not. Cases should be tried "on an individual basis" only when there is no reasonable alternative. As someone else in this thread posted (quoting the Supreme Court): laws are intended to be specific precisely because that tells people what is acceptable behavior, what is not, and precisely where that line is... so they don't cross it.
When you make laws such that nobody knows where the line is, people will step over it. Always. They do. Simply because they weren't clearly told not to.
Even in
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When you make laws such that nobody knows where the line is, people will step over it. Always. They do.
That is all laws all the time, ever. From the 10 commandments on down to modern meat processing regulations.
According to this, a woman in a miniskirt with no underwear is not 'partially nude'. Now, don't try to tell me "But... but... it says 'covering these parts'" because if it is covering those parts adequately then they can't be photographed anyway.
Unless all your clothes make an air tight seal around a
Re: (Score:2, Insightful)
That viewpoint is, in my opinion at least, toxic and wrongheaded.
As far as I'm concerned, you should have a right to privacy until you explicitly say otherwise in the private domain, or a warrant has been issued in the law enforcement domain. If you have no privacy, what's to stop me from taking a picture of you right through your clothes with an I/R camera and posting pictures of your body all over the net? That's just the tip of the iceberg, too.
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It's not about what is visible and what isn't. It's about technologically equipped perverts intimidating women on public streets and public transport, for their own personal kicks. It's about people doing something wrong because it offends another person. If you allow this kind of behavior to go unchecked, worse will follow.
Re:Does not make sense (Score:4, Interesting)
The nudity laws in Texas include a "intent to shock or disturb" clause, so nude beaches get a pass because the beachgoers aren't taking off their clothing with "illegal intent."
States around here have similar laws. In one state nearby it is completely legal for women to go topless anywhere men can go topless. Judge in a widely followed indecency case: "State law forbids the exposure of genitals. A woman's breasts are not genitals and so exposing them is not prohibited by law. Further, if it were, I would have no choice but to strike down the law as being unconstitutionally discriminatory."
In another nearby state, nudity is allowed unless, as in Texas, it is intended to "shock or disturb". Thus, technically it is perfectly legal to go downtown naked, as long as you don't try to enter stores that require shirts and shoes. And if you did, that would be a violation of trespassing laws, not "indecency" laws.
Given that interpretation of what the law says... (Score:4, Interesting)
I can't really say the ruling is wrong or bad. Instead, and quoting from TFA, "If the statute as written doesn't protect that privacy, then I'm urging the Legislature to act rapidly and adjust it so it does."
Now, question to slashdotters who are not a lawyer but know the law better than me: wouldn't there be any other way the victims would be able to convict the photographer? Couldn't they claim that amounted to harassment or something? Or... well... anything?
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wouldn't there be any other way the victims would be able to convict the photographer? Couldn't they claim that amounted to harassment or something? Or... well... anything?
Catch the perv in the act, you might be able to convict them in the court of public opinion with some good ol' fashioned shaming.
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Catch the perv in the act, you might be able to convict them in the court of public opinion with some good ol' fashioned shaming.
Worked on Paul Reubens.
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In the US if you are in a public place then you can be photographed (or videoed) without your consent and the photographer can do almost anything that he or she wants with the photographs. One of the few exceptions is if the photographers are using the pictures for commercial purposes, but even that is somewhat fuzzy. Perhaps the victims could claim that the photographers deliberately caused them emotional anguish, then they may be able to pursue a civil suit. Not a lawyer. Do not play one on tv. Consult re
Re:Given that interpretation of what the law says. (Score:5, Informative)
Just to emphasize your point: the judge in this case is not trying to let the accused off the hook: he/she is pointing out a hole in Massachusetts law.
I'm totally not a lawyer, but I live in Massachusetts and spent some time reading the law today so that makes me an expert. As far as I can tell, upskirt doesn't fall within any of the following Mass sexual crimes:
Rape: Rape in Mass requires penetration.
Indecent assault and battery: Requires physical contact.
Sexual harassment: is specific to the workplace.
Peeping tom: requires that the victim be partly undressed.
Criminal harassment: must be repeated on three occasions.
Unnatural and lascivious acts: applies to sexual acts in public.
It really does seem to me that as far as criminal law goes, upskirting really does fall between the cracks of Massachusetts law.
Re: (Score:2)
upskirting really does fall between the cracks of Massachusetts law.
That deserves a comic-sketch.
Re:Given that interpretation of what the law says. (Score:4, Funny)
They could print an EULA on their panties. "By photographing these panties you agree..."
Incoming legislation (Score:3)
New law passed one the following day (today) (Score:5, Informative)
Dateline: 3/56/2014 5:24PM
The Massachusetts Legislature just passed a revision to the law which has now been sent to the Governor for his signature.
http://www.wcvb.com/news/upskirting-bill-passes-moves-on-to-governors-desk/24845520
Summary Terrible (Score:5, Informative)
They didn't rule that taking the photos was legal (i.e. you have a right to do it which cannot be abridged); they ruled it wasn't illegal (i.e. the legislature hasn't banned it even though it's within their power to do so).
and further, the court agreed with legislating it (Score:2)
Further, the court specifically said they felt it SHOULD be illegal to take an 'upskirt' photo.
The hooplah over this is patently ridiculous and demonstrates the lack of ethics in modern journalism - or the desperation for pagehits, something we used to only see among bloggers.
My main concern is that in the rush to "fix" this, someone screws up the law and ends up making it unconstitutional or otherwise overly broad.
Rule of Law (Score:5, Interesting)
This is a good thing for anybody who believes in the rule of law. Laws should be written to clearly put those governed on notice as to what behavior is prohibited. Pervy or not, if the photographer was within the actual letter of the law, he shouldn't be be held criminally liable for doing something which was not prohibited. The solution is not to "interpret" the law to extend beyond its text; the solution is to fix the bad law.
If laws can be "interpreted" to go beyond their plain meanings, then it becomes difficult for those subject to them to figure out what is prohibited. Not only is it patently unfair to hold someone accountable for an action that wasn't listed as prohibited, there is a strong constitutional precedent for holding it "void for vagueness." See, e.g., Connally v. General Construction Co., 269 U.S. 385, 391 (1926):
[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
Re: (Score:3)
Suposedly, judges are wise beyond normal intelligence levels and must be able to interpret the spirit of the law living throughout a law's text.
They aren't. Come up with a new rationalization.
Mass. Legislature passes ‘upskirting’ (Score:2)
Who says that government is inefficient?
Illegal to (Score:2)
So this ruling is implying that if these people were nude in public it would be illegal to take photos of them?
But since they were wearing cloths, it is legal to take nude photos of them?
Re: (Score:2)
I guess.
"You were trying to protect what used to be called 'modesty' in the olden days. You failed. So it's your fault."
As opposed to "You're nekkid. That's indecent exposure. So it's your fault. But we'll also arrest anyone taking pictures of you."
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I think Peeping Tom requires partial nudity in a place with an expectation of privacy (e.g. through a window).
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What surprises me is that it is presumably illegal to stick your head underneath a woman's skirt without her permission, and yet the same does not apply if you're using a camera. If there's no right to privacy, is there at least a right to personal space?
Wow (Score:3)
Now, to get this court ruling pass in Japan....
Smooth move, judge (Score:2)
The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude."
What if they were? What if they're not wearing panties, what then?
Re: (Score:2)
In that case, they're still not nude... because "upskirt" pretty much requires the presence of a skirt. And if you're wearing a skirt, you're not nude.
I gotta wonder about the meaning of "partially nude", though. Unless you're completely burqa'd up, you're showing SOME naked flesh. Why isn't that partially nude? Or does "partially nude" mean "we know it when we see it"?
I hate stupid subjective ambiguous laws.
Re: (Score:3)
Nudity has nothing to do with it (Score:2)
Photographing things publicly visible is fine, but what is inside of a dress is not publicly visible.
NO!- court says they are not "illegal" (Score:3, Insightful)
The tradition in English-speaking nations derived from Britain is that Laws define ILLEGALITY not legality. Therefore it may be the duty of a court to test an 'act' against the pre-existing list of laws to see if that 'act' corresponds to any of the lawful definitions of illegality. In this case, the court failed to find appropriate laws that defined the act of public photography, even with a clear lewd intent, as 'illegal'.
There is a darker side to this. Laws that restrict Joe Public have a nasty habit of restricting the 'authorities' as well. And Google stands behind the 'principle', backed by millions into the pockets of politicians, that what the eyes can legally see in public, a Google camera system should be able to legally film.
Usually 'upskirt' photography is punished using the catch-all "outraging public morality'. These broad laws were amongst the first- and are essential to reduce the pressure for mob justice seen in less civilised societies. The 'problem' with broad laws is that they may be subject to terrible abuse by local regimes that may have various axes to grind.
The 'problem' with narrow laws is that criminal types will exploit the cracks to create new forms of clearly anti-social behaviour.
And here's a question for you all. What about a person seemingly taking normal photographs, that exploit the transparency of certain clothing to Human invisible frequencies of light? Some dresses, and even under-wear are near perfectly removed by cameras that see in infra-red.
And what if TSA style body-scanning tech became available in a cheap camera form. Would you ban people from owning and using such sensors in public?
And what if vision algorithms were perfected that could 'imagine' the body beneath fairly form fitting clothing, and render a photo-real naked body based on video of a clothed person?
Although it isn't said openly, such laws really base themselves on how obvious, annoying and distressing the sexually motivated public photographer has been. But now prosecutors use a different strategy, seeking to suggest that the 'collection' of such imagery, regardless of 'awareness' of the 'victims' is enough to trigger a conviction. This means in most US states a prosecutor would expect to gain a conviction of a person who took 'reasonable' photographs of clothed women in public, and then used 'computer' methods in private to convert these into some form of naked imagery (without permission of the women), even if 'distribution' of these processed images was not involved.
Sex 'crimes' often have the dimension "the act really isn't a crime, but knowledge of the act makes it so". So a guy might fantasise about a woman at work, and pleasure himself in the bedroom thinking about this. BUT informing the woman the next day that this happened creates a clear potential societal problem- what earlier societies would have seen as an unacceptable breech of 'etiquette' rather than the direct breaking of a written law.
Behaving ourselves, for the greater benefit of society, is more than just observing written laws.
It shouldn't be illegal even if they were nude (Score:2, Interesting)
These clothes are chosen because they are sexy. They are sexy BECAUSE in certain moments and with certain movements you can see down the blouse and up the skirt and everyone knows it so choosing to wear these clothes is choosing to let random strangers catch a glimpse. People are allowed to photograph
Re: (Score:3)
Now tell us how it's women's fault they get raped for dressing 'sexy'.
Re:It shouldn't be illegal even if they were nude (Score:4, Insightful)
No, that is absurd. But at the same time I am under no legal, dare I even say ethical, obligation to turn my gaze upon seeing you experiencing a revealing wardrobe malfunction, though it may be considered polite and kind to do so. In fact I might even gawk and make comments, possibly lewd comments, so long as I don't violate any local obscenity laws, though truthfully that would not be in my character. The exception is if this occurred in the workplace where sexual harassment laws apply. Others with morals derived from their religion or culture should follow their own conscious and answer to their own deities or communities for their behavior. But protecting American freedom is more important than protecting someone else's modesty. People need to take personal responsibility for their own modesty choices. That means if you want to push the edges of your local obscenity laws and wear the most revealing clothing possible, you should be able to do so and feel safe doing it. There is never an excuse for anyone to violate another based solely on their choice of clothing or lack thereof, even if they willfully violate all applicable obscenity laws. But in a public space you really have no right to demand that I turn my head and look away or stop taking pictures for my own personal use. As Americans we have the freedom to show it off and the freedom to see it all. I think most of my European friends would agree as well. To attempt to regulate morality, politeness, appropriateness, family values, religious beliefs, artistic expression, sexual expression, blasphemy, speech, political views, or published works would in the best case lead us to a situation like Northern Ireland in the 1970's, and in the worst case like Afghanistan under Taliban rule, which is why we do not do it.
Trim the hedges (Score:3)
I guess it's time for me to get that Brazilian wax.
It's important to put your best foot forward.
Re: (Score:3)
I guess it's time for me to get that Brazilian wax.
It's important to put your best foot forward.
What you're trying to say is that you don't like Bush.
So does this mean... (Score:2)
...going commando in a skirt is now indecent exposure?
They just outlawed it. (Score:3)
A bill has been sent to the governors office and he is expected to sigh.
It's Pub sponsored, so, you know, excessive prison time, but there you go.
Re: (Score:3)
What is disturbing about the bill is that it applies to women and children only. It does not protect skirt wearing men. The Scottish Clans protest!
This was a problem at an anime convention once... (Score:3)
There were some glass stairs, and there were some creeps taking upskirt pictures of cosplayers. It was creeping people out. But before they had to go to the police, they tried a simpler solution: They asked Sailor Bubba if he'd be willing to walk up and down those stairs for a while.
Note: He does not wear underwear under his sailor suit.
The creeps left.
Sailor Bubba is a fairly cool guy.
Re:A new law in not what is needed (Score:5, Insightful)
Re:A new law in not what is needed (Score:5, Insightful)
Agreed. A judge isn't supposed to decide what's right or wrong, but rather what's legal or illegal. Judges are just supposed to interpret the laws as written. If there's no law against something, then a judge has no recourse but to deem that thing legal. Even if any rational person would find it in poor taste.
It's then the job of Congress (aka the legislators, aka the law makers) to make a law that rectifies the issue. So expect results sometime between now and Judgement Day. Unless, of course, some senator (or senator's daughter) gets some upskirt pictures taken. Once lawmakers actually feel the effects, the law will be passed so quickly, it might just be signatures on the back of a napkin.
Re:A new law in not what is needed (Score:4, Informative)
Re: (Score:3)
Re: (Score:3, Interesting)
Next time you see some one doing an up-skirt don't look away, look right at the person and make it clear you see him (or her) and do not approve.
I have a friend who used to do shit like that. Not like super duper creepy, but opportunistically.
We were all out at a bar one time and he's walking back to the table, sees this girl in a short skirt facing away from with at a "good" angle.
He starts lining up the shot and his girlfriend goes up to the girl and says, "Excuse me, there's some pervert over there tryi
Re:A new law in not what is needed (Score:5, Interesting)
I'm sure it's actually still illegal. What it's not, according to the actual case, is on the wrong side of the "anti-peeping tom" law. I'm guessing the prosecutor fucked up, tried to go for a charge with a bigger sentence, and couldn't make it stick.
Re:A new law in not what is needed (Score:5, Insightful)
....charged with two counts of attempting to secretly photograph a person in a state of partial nudity.
....state law "does not apply to photographing (or videotaping or electronically surveilling) persons who are fully clothed and, in particular, does not reach the type of upskirting that the defendant is charged with attempting to accomplish on the MBTA."
While your argument is that it should be cut and dry illegal; the reality is: this specific law does not make it illegal. It has nothing to do with the judge, and everything to do with the way the law is written. The judge doesn't need to be removed, the law needs to be better written considering current technology.
Re: (Score:3, Insightful)
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No, you're perfectly free to wear skirts but one of the consequences of wearing that garment is there is a risk someone may see (and by extension photograph) underneath it.
Note that choosing your undergarments with this risk in mind would render it a moot issue in both the obvious case of choosing undergarments you don't mid people seeing and the somewhat unintuitive case of making it illegal to take the photo if you go commando (as it would have been illegal if the subject were "partially nude").
Re:A new law in not what is needed (Score:5, Insightful)
people can wear skirts all they like, and choose how much or little they want to expose of themselves in public. if you re concerned about some out of focus dark weird angle shot of your panties, i'd suggest not wearing a skirt.
Re:A new law in not what is needed (Score:5, Funny)
people can wear skirts all they like, and choose how much or little they want to expose of themselves in public. if you re concerned about some out of focus dark weird angle shot of your panties, i'd suggest not wearing a skirt.
Yes, but don't we want to encourage the wearing of skirts? It's practically the only bright spot about taking public transportation.
Re:A new law in not what is needed (Score:4, Insightful)
if my girl decides to stop occasionally going panty-less (exciting to both of us) because of a few pervs, then this idiotic up-skirt photography behavior should be stopped.
What exactly about doing this makes it exciting if not for the real risk of someone noticing? If that risk didn't exist, it would be no different than going commando with jeans.
Re:A new law in not what is needed (Score:5, Insightful)
Some here seem to think that the only types of skirts around are the ones that are so short that barely anything is hidden. Skirts come in different lengths. Perhaps the woman thought she was covered up and the skirt hiked itself up in just the right way so that something was visible. Perhaps the pervert just used shoe cameras, pretended to be stooping on the ground to tie his shoes, or some other ploy to take photos up women's skirts. The women obviously didn't consent to this so he shouldn't be allowed to do this.
Don't get me wrong. I understand that you don't get to walk around outside and then claim people taking your photograph are invading your privacy. There's no reasonable expectation of privacy when you are walking outside, but there are limits to that. Everyone has a reasonable expectation of privacy under their clothes. A woman wearing a skirt is not an invitation to take a photo up the skirt any more than a man wearing shorts is an invitation to take a photo up the shorts leg.
Re: (Score:3)
So much victim-blaming language going around here. "Hey, nobody would take pictures of her if she'd just stop wearing skirts!" Gee, maybe it's the douchebag taking the pictures that's the problem, huh?
Upskirt photos don't just "happen," they're taken intentionally by people who are willfully invading the personal space of another. There are numerous contexts in which one has an expectation of privacy. What is beneath one's skirt is one such context.
I suppose if someone uses a public bathroom and someone tak
Re:A new law in not what is needed (Score:4, Insightful)
. . so people cant wear skirts anymore? Sharia Law is over there . . . .
No. Get over your prudishness. If you want to flash it, like the girl in the microscopic Brazilian bathing suit that bent over to adjust her beach blanket last week in Miami, then flash it. If you're too prudish to do so other than when you've drunk half a bottle of alcohol to obliterate your self restraint, then that's your problem.
If you're not comfortable with wearing revealing clothing then don't wear it but don't whine that it's anyone's fault other than your own.
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The whole point of the law was to outlaw the invasive photography known as "upskirts". Everyone is fine with a society in which people wear skirts but people don't do "upskirts". How can we make this happen?
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As I read the ruling, it would be illegal if there were nudity involved - so does this mean it's legal until somebody isn't wearing panties?
Re:A new law in not what is needed (Score:5, Informative)
The judges simple pointed out that under current law taking these pictures is legal. That is their job. What is needed is for the appropriate laws to be rewritten.
Re:A new law in not what is needed (Score:4, Insightful)
That is their job.
But when they do their job in a way that people disagree with, it's somehow time for impeachments and pitchforks and tomatoes.
Last week someone here referred to something as "unconstitutional". I pointed out that the Supreme Court, whose job it is to determine the constitutionality of things, felt otherwise. They stated that those 5 Supreme Court judged should be arrested and tried for Treason. Seriously.
Re:A new law in not what is needed (Score:4, Interesting)
That's because it isn't actually their job to do that. They arrogated that power to themselves.
The actual power given to them by the constitution is the usual judicial power. Or in other words: guilty, not guilty, adjudication withheld, case dismissed, etc. They have original jurisdiction in cases that involve the states, ambassadors and so forth. Nowhere does the constitution say or imply they can declare a law unconstitutional. That is done by the constitution itself. That's the whole damned point of it.
The consequence of allowing these judges to determine constitutionality has been (just to mention a few) inversion of the commerce clause, violations of almost the entire bill of rights, usurpation of states rights by the feds, and more.
The constitution is written in plain English. If it proves insufficient to the cause, it can be amended. The very first amendment it ought to have is the holding of legislators accountable when they make laws that the constitution rules out. In the vast majority of cases, that's bloody obvious. For instance, "shall make no law" is crystal clear. So what does congress do? They make laws in that very area anyway. And the justices? They uphold these laws. It's no wonder the legal system is such a wreck. They aren't traitors; they're just criminals.
Re: (Score:3, Insightful)
That is done by the constitution itself. That's the whole damned point of it.
The first amendment says that I can shout "fire" in a crowded theater.
The second amendment says that I can own an ICBM.
You seriously think that the constitutionality of everything is self-evident?
Re:A new law in not what is needed (Score:4, Insightful)
The second amendment says that I can own an ICBM.
Perhaps you could argue that an ICBM is a bit too heavy to "bear", but for most of US history, artillery was privately purchased and donated to towns and cities for defense. IIRC as late as Teddy Roosevelt we'd go to war with artillery that just some guys bought, bought the mules to haul it, and brought with them to the war (in addition to what the army itself had, but that was often inadequate and the supplemental pieces were welcomed).
If you're uncomfortable with your neighbor owning an ICBM (I know I am), we can amend the constitution, using the mechanism provided. We should just creatively interpret it, because that is precisely what led to losing most of the protections in the Bill of Rights.
Because it's convenient to allow creative interpretation instead of actually amending the Constitution, we've lost much of the point of it all!
Re: (Score:3)
Because it's convenient to allow creative interpretation instead of actually amending the Constitution, we've lost much of the point of it all!
Pssstt.. I've got a secret for you. The founding fathers didn't know how to interpret the damn thing either. They couldn't agree, so they just made the bill of rights rather vague and put in place the power of the courts to interpret the law. So "creative interpretting" as you put it was always the intent.
If your idea is to amend the constitution to be clear abou
Marbury v. Madison (1803) (Score:5, Insightful)
The actual power given to them by the constitution is the usual judicial power. Or in other words: guilty, not guilty, adjudication withheld, case dismissed, etc. They have original jurisdiction in cases that involve the states, ambassadors and so forth. Nowhere does the constitution say or imply they can declare a law unconstitutional. That is done by the constitution itself. That's the whole damned point of it.
You need to really read Marbury v. Madison (1803). The Court really lays out the reason why they have to. The judges must hold every law up to the standards of the Constitution, if they do not judge the Constitutionality of laws, then the Constitution has no meaning, because Congress can pass any law they feel like, and there is no one else who can say, "Hey, I don't think that law is actually legal."
Without anyone to actually enforce the Constitution, it's a meaningless piece of paper.
The constitution is written in plain English.
That's actually, in many ways, the problem. If the Constitution were written out in far more formal language, there would be less wiggle room and thus less need for interpretation.
Re:Marbury v. Madison (1803) (Score:4, Interesting)
You read 5 words and even got them wrong. Let's actually go through how clear it really is:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Define: Religion. Is Scientology a religion or a cult?
Define: Exercise. Are we talking about calm prayer or does your religion require you to lock down a city and hold people hostage?
Define: Freedom of speech. Is lying to congress freedom of speech?
Define: Press. Is anyone potentially press like bloggers or just old news establishments?
Define: Peaceably. At what point do you say enough is enough? Are people allowed to permanently squat in a public park?
Define: Grievances. This is perhaps the most open of the lot.
This is just one bloody sentence and yet has 6 potential points which are anything from clear without an exact definition. I'm also no lawyer, I'm sure a trained sleezebag could find even more problems with that sentence.
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Take it up with Thomas Jefferson. He wrote the rules, not me.
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Not entirely true.
There is a law that says you can't photograph somebody inside a house (e.g., through a window) or in a similar place which is considered private property.
And the part of the body under the skirt can be considered to be in a private place.
You see, it is just how you interpret the law. The judge should do this in a way that conforms to expectations.
Following the law literally and blindly is not a good idea.
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Maybe they have cameras in their shoes...
This is a sick practice, no matter who is doing it.
Re:A new law in not what is needed (Score:5, Funny)
Maybe they have cameras in their shoes...
. . . please don't give Google any more ideas about where to mount their glasses . . .
Re:A new law in not what is needed (Score:5, Insightful)
It's time to remove these judges.
Nonsense. A judge's job is to interpret the existing law, not make stuff up to conform to what the law should be. If anyone should be removed, it is the state legislators, and it is the voters' job to remove them.
Re:A new law in not what is needed (Score:5, Funny)
A judge's job is to interpret the existing law, not make stuff up to conform to what the law should be....
I agree with that.
... that makes the legislature which write the laws .... OMG, PROGRAMERS! They're one of us!!
So judges are effectively a CPU, simply executing what's written. (GOTO but not DWIW.)
But then
Re:A new law in not what is needed (Score:5, Insightful)
Wait. This actually makes sense. Only instead of coding perfectly legible code, legislators are the kind of coders that craft spaghetti code which has tons of bugs, unforeseen glitches, hidden functions to give their friends back doors through the system, and which can't be read by another human being without them going cross-eyed.
Re:A new law in not what is needed (Score:4, Funny)
Re:A new law in not what is needed (Score:4, Interesting)
Yes, so i'll get a 6" round pipe, 1 foot long, and attach it to my zipper, sticking straight out (maybe a slightly upward angle). I'll let my junk rest in the pipe. As long as you don't look down the pipe, you won't see my junk.
This is the equivilent of a skirt, just at a little different angle. (most of the time, but not always).
Also, if I hold my camera 2.5 feet off the floor, looking up, I can see up a gals skirt. That is also the same viewing angle that a two year old boy has. A woman can't go around corrupting minors and at the same time get all uppity about her fashion statement and privacy. A woman who wants the privacy needs to cover it up, and not just from a few angles. You can't have iot both ways.
Of course, my preference is, ...uncovered.
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No, you've got it wrong. The women were considered fully clothed because no private parts were exposed. Partial nudity requires "private" parts to be uncovered, not any part of your body. That's precisely why this guy got off--despite his creepy photograph, he wasn't photographing partially nude people--he was photographing fully clothed ones. The law (apparently) doesn't criminalize photographing fully clothed people.
Re:A new law in not what is needed (Score:4, Insightful)
If the law didn't specify what "partial nudity" means, then I think the ruling is perfectly valid. What is partial nudity? Can someone go out in public "partially nude?" Can they be arrested for that?
I don't think it's fair to use one the standard differently. A person should not be partially nude while out in public.
The error here is not on the judge's part, but on the legislature's. If the legislature had better defined their terms, there wouldn't be ambiguity. If they had specified that these kinds of photos were illegal, there wouldn't be a question here. They did not, and so the judges (who are upholding the law, not their opinions of it) made the right call.
Even if it means a pervert is still on the streets.
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I agree with your points, but partial nudity by itself is perfectly ambiguous. The error is still with the judges who used this definition to claim it did not count as nudity.
All languages have ambiguity and it's nearly impossible to rule it out of legislature. In fact some of the best legislature in history is ambiguous intentionally (I'm sure you have read the founding documents for the USA). Language imperfections are why we are supposed to have judges with at least a shred of common sense. This one
Re:A new law in not what is needed (Score:4, Insightful)
And if they ruled that a woman in a skirt qualifies as partially nude, they'd set a precedent that would allow women in skirts to be ticketed for indecent exposure.
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The solution is to bring the relevant laws into the 21st century, then judges will have the tools that they need to deal with people who do this sort of thing. Given the attention that this case is getting I suspect that the laws will be modernized very soon.
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they used the wrong law to attempt to prosecute, the mistake was to try to use peeping tom law. If you walk up to woman and put your head or camera down low to view under her skirt you can be prosecuted for several things: it is sexual harassment, lewd conduct, disorderly conduct and many other things that are already illegal.
Yes, we do actually believe in the rule of law (Score:3)
A Massachusetts court applying laws as written, rather than making up some bogus progressive interpretation to satisfy their liberal bias? That IS news!
Examples of this?
We don't "make up bogus progressive interpretations." We take great pride in the commonwealth's constitution, which aside from being the first in the nation, predating the federal constitution, and in fact serving at its model [wikipedia.org], is also one of the most protective of individual rights.
Remember the whole gay-marriage thing, and how MA wa
Re:Wait, what is this? (Score:5, Insightful)
This is the opposite situation. You're asking people to punish someone for something that is not (yet) illegal. The person that should be punished is the politicians for writing bad laws.
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I agree with you that it is not really a political issue, nor should it be one. However the conservative wing of our country (and I mean to say conservative not republican since they are not one and the same) has gotten so far right that anything which might actually help anyone they just oppose out of gut instinct. I don't think they are anti-woman per se, it is just that they are anti "anything one of those evil liberals might be for". So if making upskirt pics illegal would be supported by a liberal,
Your Kids Soccer Game (Score:2)
So you want to take a picture of your son/daughter playing soccer . . .
However one might consid
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"Addressing upskirt photography, It would probably make more sense to make it illegal to photograph anyone in such a way that reveals any more of their body than what they have chosen to reveal to those around them, unless the person being photographed has given informed consent to do so."
This is so vague as to be unworkable. What did the subject "choose" to do? ("Honest officer, she was flashing me on purpose!") What constitutes "permission"? Written permission? (There goes the evening news.) Police arresting somebody? (There goes protection against police brutality.) Etc. and so on, ad nauseum.
If you really want to pass a law, you have to draw a hard line somewhere. You can't leave it up to the whim of either the subject being photographed, or the photographer. Vagueness is societal poi