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Interviewed about Maryland’s upskirting law

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On July 7, local Baltimore Fox 45 TV news interviewed me about Maryland’s unconstitutionally vague and overbroad nine-year-old law that criminalizes such activities as allegedly photographing up women’s skirts and down their tops, and even pruriently looking for longer than a brief moment at disrobing/exposed people in public restrooms and changing rooms. I was interviewed at length live for the 4:30 p.m. news slot, and then was taped for an interview on the same topic for the ten o’clock evening news. The only online link to the interviews is the latter segment.

We are overcriminalizing society if we do not abandon such laws criminalizing alleged upskirting and looking at others while out in the open in a changing room or restroom. We should instead rely on such long-existing laws as disorderly conduct, harassment, and trespassing on the criminal side (and then, as a defense attorney, I would be ready to argue that it is an impermissible stretch to apply such laws to such activities), and invasion of privacy on the civil side. Yes, too many creepy, invasive and dangerous trespasses are committed by too many people each day, but the more we overcriminalize society and make innocent people subject to arrest and prosecution, the more we are engaging in catching and killing innocent dolphins in an effort to catch tuna (neither of which I consume, being a vegan). For instance, a person holding a cellphone at thigh-level while listening to a Bluetooth might be mistakenly arrested for allegedly photographing up the skirt of a person in front of him in a retail store line.

For my live segment interview, anchor Kai Jackson mentioned other state courts where such laws have been successfully challenged; my review of those appellate cases indicates they all involved public photography towards intimate bodily areas, where the laws were less narrowly drafted than Maryland’s, and in some instances such convictions in other states were affirmed on appeal. That does not make Maryland’s foregoing law valid, but does mean that other state’s appellate court opinions about similar activity will not be of as much help in challenging the Maryland law.

Last fall, a District of Columbia trial judge wisely dismissed a voyeurism charge against a man for photographing a woman sitting on the steps of the Lincoln Memorial. The man was photographing what was clear for any casual observer to see, making unlawful — with no probable cause — the seizure and search of his camera that allegedly revealed public shots of many women’s buttocks. As required by law, the judge dismissed the case, but not without pointing out that the defendant’s photographing activity “was repellent and disturbing.”

As an aside, I am aware of Fox’s national news cable station often being pilloried as a right-wingnut mouthpiece. I watch little television, and certainly do not know the extent to which such allegations flow to Fox’s local stations. I will say that I was delighted that the Baltimore Fox 45 director who invited me to the program and interviewer Kai Jackson seemed concerned about overbreadth issues with this Maryland law. The online posting of the Fox Baltimore story quotes me as saying “The Maryland law is vague and overbroad.”

I applaud this television station for taking a questioning eye at this statute.