Detail from Fragonard’s The Swing (1767). Via Wikipedia.
Here we go again with another attempt at defining photography as a mere technological process.
State prosecutor, “Photography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time[.]”
Hell no, said Judge Sharon Keller of the Texas Court of Criminal Appeals, “The camera is essentially the photographer’s pen and paintbrush, … [a] person’s purposeful creation of photographs and visual recordings is entitled to the same 1st Amendment protection as the photographs and visual recordings themselves.”
Once it had decided photography was protected by the First Amendment, the court went on to deal with the question of controlling a photographer’s thoughts.
“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 1st Amendment was designed to guard against,” Keller wrote.
In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are “inherently expressive” and, therefore, protected by the First Amendment.
Hell, maybe Texas ain’t as conservative as some yanks think.
UPDATE: September 30, 2014
A faithful reader, Phillip Allen, tweets us and comments that the Texas Court did not say that “upskirt” and “downblouse” photos are constitutionally protected. He’s right. In fact, the Court did say that they agreed with Texas that “substantially privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.”
The Court followed by saying that the law, as drafted, did not protect privacy in the least restrictive means, and that there were less restrictive alternatives which “would adequately protect the substantial privacy interests that may sometimes be threatened by nonconsensual photography[.]“
The Court concluded by saying that the current law, “to the extent it proscribes the taking of photographs and the recording of visual images, in unconstitutional on its face in violation of the Free Speech clause of the First Amendment.”
One other thing, Twitter follower dckath seems to think that we “champion” upskirt photos. What we were championing was the Texas Court’s correct reading of this law as overbroad and content-based, and thus unconstitutional.