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Man Argues That ‘Up-Skirt’ Photos are Protected Under First Amendment

By Hanssie on November 6th 2013

In 2010, Michael Robertson, an Andover man was arrested for allegedly using his cell phone and taking photos up women’s skirts (or “up-skirting”) without their consent or knowledge. He is being charged with two counts of photographing an unsuspecting nude or partially nude person on Boston’s Green Line subway.

Earlier this week, in an appeal before the Massachusetts’ Supreme Judicial Court, Robertson’s lawyer Michelle Menken, argued that, “if a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy.”  She states that the law is outdated and has no protection for clothed people in public places. She maintains that if her client is convicted, his first amendment right for free speech would be violated.

[REWIND: Spying On The Neighbors: Judge Dismisses Lawsuit Against “Voyeuristic” Photographer]

Wait, so when does sneakily taking a picture up someone’s skirt protected under the first amendment? I’m pretty sure Thomas Jefferson and Co. wasn’t thinking about alleged creepers with cell phones when they drafted up the Constitution. According to Robertson’s female lawyer, the peeping Tom law only protects people from being photographed in bathrooms or dressing rooms where they are nude or partially nude. Besides, since the women he photographed all had underwear on and no private parts could be seen, they could not be considered ‘partially nude.’

They have to be in an exposed state to violate the current law and these women were not.

Menken’s concern is for protecting artists and photographer’s rights and it seems that some of the justices were also concerned. Chief Justice Gant asked,

What if a photographer is doing a project of people on the subway or out in public and he wants to get candids. Can he now not do that?

Um, first of all, since when did a pervert surreptitiously trying to snap photographs under my skirt be considered a “photographer?” By wearing a skirt, am I inadvertently granting permission to have someone try to photograph my underwear? And if I happen to not be wearing any underwear, would Robertson actually admit to his perviness and serve his 2+ years in prison?

But as his lawyer contends,

What he saw was in plain sight. He did not place his camera directly up a women’s skirt. He saw what was in front of him.

Robertson allegedly held the camera to his waist and covertly took photos of a woman without her consent of an area she intentionally tried to cover. Where is the line drawn for a person’s reasonable expectation of privacy? For me, it’s when I put on my clothes, and cover the parts I don’t want to be seen or photographed.

What do you think? Are your first amendment rights as a photographer endangered if Michael Robertson is convicted?

[via @Eagle Tribune]
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Hanssie is a Southern California-based writer and sometimes portrait and wedding photographer. In her free time, she homeschools, works out, rescues dogs and works in marketing for SLR Lounge. She also blogs about her adventures and about fitness when she’s not sick of writing so much. Check out her work and her blog at Follow her on Instagram

Q&A Discussions

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  1. Jim Rahl

    Photography in public is documentary and covered under the law. A photograph may be funny, sad, embarrassing, etc., all documentary. Most people think that a photograph cannot be taken of my child, a bad hair day or them personally but this is all documentary. How do you think the news is captured. If there is an oops moment and a movie star gets a public photo of them nude, that is documentary. If an old couple hold hands in a park, that is documentary. So you parents that think some male photographer taking a picture of your 4 year old daughter is a pervert, chances are it is a moment that is more hallmark. When I grew up we posed for perfect strangers taking pictures. Now we think every photographer is a terrorist or serial murderer. It is just a photograph and if you look like hell, clean up before going out in public.

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  2. ShadowFX

    As long as the likes of “The Arab Parrot” can acquire fame and notoriety from TV shows such as TMZ for taking an up-skirt of Paris Hilton ( ) the likes of this next link will continue… ( )
    Is it acceptable??? Personally no,,, Is it legal??? A question for the courts… Is it a sign that society as a hole is morally bankrupt? Afraid so…
    The First Amendment protects every perpetrator but never a victim. Do you suppose it needs to be amended?
    ” Are my first amendment rights as a photographer endangered if Michael Robertson is convicted? No, I have no First Amendment rights, I live north of the 49th parallel. However, I do some work in a provence which has taken very seriously the rights of people to there own image.
    Back to the legality at hand: American case law has not one tort protecting privacy interests but ‘a complex of four’: 1 One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person;
    2 One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy;
    3 One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public;
    4 One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.
    As any mother will tell you, what is under a woman’s skirt is definitively private… not of legitimate concern to the public.

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  3. Throwback Thursdays: 11/7/13

    […] and taking photos up women’s skirts (or “up-skirting”) without their consent or knowledge. He is being charged with two counts of photographing an unsuspecting nude or partially nude person on Boston’s Green […]

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  4. Vincent Lognion

    What he did wasn’t right, but what he was photographing up guys gym shorts? Usually guys go commando in shorts because of the comfort level.
    Either way it’s not right, but would it get the same exposure because he’s taking photos of men and not women? Society finds it morally wrong, but then again would it still happen if roles were reversed?

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  5. Jon

    My concern is not so much for this case in particular but rather the chilling effect it will have. In terms of the letter of the law, while I am not a lawyer, it would appear his argument is sound. So the charges get thrown out and he walks. What happens next? They change the law and now you’ll see street photographers potentially harassed/arrested either because the update is badly written, some over-zealous cop wrongly applies it, or some overly indignant/self-righteous person decides to make a scene. As someone who has been harassed before for taking street photos, I would prefer not to see this happen.

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  6. ithurtswhenipee

    I think most people want to throw the book at this guy although technically he hasn’t broken the law. Or has he? His first amendment right is to free speech. He has up skirt pictures and he can freely publish them according to the first amendment. There has to be some law that he can be charged with for the act of taking these unauthorized pictures. Lewd behavior or something like that. A law that can be interpreted to include up skirt picture taking. It won’t be illegal for him to post the pictures (free speech) but it would be illegal for the way that he captured them.

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  7. jonno

    now imagine these photo`s are of children or your young daughter… Honestly, what would you do to him. Disgusting pervert!?!

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  8. Cristina M.

    This is the subway i use to commute everyday so the fact that this is happening in my backyard is scary and embarassing. Can we get someone to check out this guy’s basement?

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  9. Mr. Aloha

    He is now available to photograph weddings. Who’s the first taker? LoL

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  10. Steve

    I agree that this guy is a creep and he deserves any ass-beating that might come his way. However, I feel the crux of the issue is whether or not a person is considered fully clothed while wearing a skirt. A person (gender inclusive) wearing jeans and a t-shirt is not exposed from any angle, up, down, right, left, whatever. Wearing a skirt makes certain angles of viewing “inappropriate”. Skirts and dresses are socially acceptable because it is not normal for people to be looking up at you from underneath. Is it illegal for a person to lay on the ground flat on their back looking up on a busy train platform? Of course not, but in the course of doing so this person could very easily see their way up a persons skirt or dress. So is a person who is always exposed from a particular angle “fully clothed”? One wouldn’t think of wearing an outfit that would inappropriately expose them from a very particular angle directly in front of them, would they? Seems to me that it’s a risk a person takes when they wear a skirt or dress that someone will see their underthings. Not all people are as decent as we would expect them to be.

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  11. Yo

    Now the real problem is “WHERE DO WE GET TO SEE THE PHOTOS IN QUESTION ??” So we can have an honest debate :)))))

    Just kidding – I don’t think his defense can hold. Is like saying, hey – if I go to a public toilet and get my up high OVER the door or under it, and snap photos of people taking a **** or even worse – getting dressed AFTER the “operation” – I’d be alright ?? It’s a public place after all. This is just not cool. I can’t even believe this to be considered LEGAL in the first place, let alone moral and OK.

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    • Yo

      I meant get my PHONE up high….

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    • Hanssie

      The Peeping Tom law does protect people from getting their pictures taken in a dressing room or bathroom because they are in a state of undress or partial undress. It’s definitely not moral. Let’s see if the Mass supreme court thinks its ok.
      Thanks for commenting :)

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  12. K.

    I agree with Janice.
    The man is a perv…
    What he did is immoral.
    But it is perfectly legal.
    If he took photos of a cleavage from up-high would it have been treated the same? He did not pull the skirt up so what he photoed was in view already… depending on the angle. And the lawyer makes a good point. How do you define what is legal and illegal in cases like this. I think tabloids would go bankrupt if you could get convicted for candid photos.

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  13. Matt

    Why wouldn’t this be prosecuted as sexual assault or something similar?

    What’s under a woman’s (or a man’s, for that matter) skirt is private, unless that person is intentionally displaying the goods by flipping the skirt up, or acknowledging and working with the photographer. If you accidentally get a shot of the goods as the person is engaged in a normal activity (e.g., Britney Spears getting out of her car in a short short skirt), that’s one thing*, but deliberately seeking to get a peek under the clothing is just wrong. I’m not sure the legality on the photographic front, but surely that would qualify at least as harassment.

    * Ethical curation by art directors would dictate such photographs are discarded, but sleaze rags don’t pay attention to ethics very often, if ever.

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    • Jake

      Unfortunately, case law from the Supreme Court shows that there is no expectation of privacy while in a public setting. There is nothing around that… It’s despicable, disgusting, and immoral, but it IS LEGAL.

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  14. Peter

    If it’s as legal as he says, force him to take upskirts of a woman with a few buff friends of hers around.

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  15. janice

    Is what he was doing “legal”? Yes.
    Was it morally right? No.
    Is the man a perv? Absolutely!

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    • Hanssie

      Ugh. Makes me not want to wear skirts in public ever again.

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