Legislature hands new ‘upskirt’ law to Abbott

AUSTIN — Creepers with cameras, beware: Texas district attorneys could soon get a new tool to prosecute those who snap lewd photos in public of someone else’s genitals, buttocks or breasts.

Targeted to crack down on so-called “upskirt” and “downblouse” photos, state lawmakers have sent a bill to Gov. Greg Abbott to rewrite a statute banning improper photography.

Two different courts had ruled that the state’s previous law was overly broad and unconstitutional, leaving prosecutors with nothing in their arsenals to punish those who surreptitiously take lewd photos of others in public.

Several lawmakers came into the session focused on finding a solution, but they faced a significant hurdle: balancing privacy concerns and First Amendment rights to snap pictures in public now that everyone equipped with a cellphone also has a powerful, pocket-size camera.

Between the House and Senate, four different lawmakers pushed their own proposals to rewrite the state’s “upskirt” law. In the end, lawmakers galvanized behind a proposal by state Sen. Jose Menendez, D-San Antonio, that had gained the most momentum throughout the 140-day legislative session and eventually won the blessing of both chambers.

“I want people to think about their daughters and their mothers,” said Menendez, noting that his office received multiple complaints about the issue during the interim. “We should have a law on the books that says this type of behavior is wrong.”

Texas made national headlines after its “upskirt” law was scrubbed by state courts after a 2011 challenge from Ronald Thompson, who took dozens of underwater photos of clothed children, most wearing swimsuits, at the water park inside SeaWorld San Antonio.

Thompson was charged with 26 counts of improper photography but eventually had a San Antonio-based appeals court drop the charges on the grounds that the law was “unconstitutional in violation of the First Amendment.” Texas’ highest criminal appeals court cemented the ruling in late 2013.

The portion of state law the court ruled unconstitutional specifically prohibited improper photography or visual recording “with intent to arouse or gratify the sexual desire of the defendant.” The courts ultimately decided that the lawmakers can’t legislate thoughts, striking down a law that even prosecutors agreed was way too broad and had the potential to impinge on a person’s right to take pictures in public.

The new language etched into the Menendez bill, crafted and pushed through the Legislature with the help of prosecutors in Bexar and Comal counties, is touted by its supporters as much more narrowly tailored to deal with specifically the issues of upskirting.

It does away with any attempt to determine if a photo is providing sexual gratification and lays out a set of specific body parts that would be considered “intimate areas.”

Under the bill, a person would commit a state jail felony if they snapped a photo of a defined body part “if the other person has a reasonable expectation that the intimate area is not subject to public view.”

“No longer are these people going to be able to hide behind the First Amendment and the victimization of women,” said state Rep. Doug Miller, a Republican from New Braunfels who co-sponsored the bill.

However, First Amendment experts said the new language is ripe for another round in the courts.

Peter Linzer, who teaches constitutional and First Amendment law at the University of Houston Law Center, said he suspects the Menendez bill is too vague and too broad.

And Donald Flanary, the lawyer who defended Thompson and succeeded at having the state’s upskirt law nullified, said the Legislature’s latest attempt to address the issue has “problems.”

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