ENOUGH ROOM: Updated: Texas High Court: Upskirt Photography, Video Is Protected Expression

September 21, 2014

Updated: Texas High Court: Upskirt Photography, Video Is Protected Expression

Posted September 19, 2014 8:11 PM ET; Last updated September 21, 2104 10:16 PM ET

Rejected: Texas's highest criminal court has thrown out a law banning 'upskirt' pictures - because it restricts photographers' right to free speech and is a 'paternalistic' intrusion of a person's right to be aroused

[From article]
Texas's top criminal court has thrown out a law banning 'upskirt' pictures - because it restricts photographers' right to freedom of expression.
The Court of Criminal Appeal struck down part of the anti-'creepshot' statute, which criminalised the taking of surreptitious images in public for the purposes of sexual gratification.
These included revealing photos of women - often called 'upskirting' or 'downblousing' - that were taken without their consent.
Rejecting the law on Wednesday, Judge Sharon Keller claimed it was a violation of federal free-speech rights and a 'paternalistic' intrusion of a person's right to be aroused.

http://www.dailymail.co.uk/news/article-2763645/Texas-court-throws-paternalistic-law-banning-upskirt-pictures-saying-restricts-photographers-right-free-speech.html

Texas court throws out 'paternalistic' law banning 'upskirt' pictures, saying it restricts photographers' right to free speech
Texas Court of Criminal Appeal struck down part of anti-'creepshot' law
Law banned taking surreptitious images in public for sexual gratification
These included revealing pictures of women, often dubbed 'upskirting'
Rejecting law, Judge Sharon Keller claimed it was violation of free speech
Added that it was a 'paternalistic' intrusion of person's right to be aroused
Appeal stemmed from 2011 case of man in his fifties charged with improper photography for taking underwater pictures of children aged 3-11
By SOPHIE JANE EVANS FOR MAILONLINE
PUBLISHED: 16:57 EST, 20 September 2014 | UPDATED: 17:00 EST, 20 September 2014

* * *

[From article]
The state's highest criminal court on Wednesday tossed out part of a Texas law banning "improper photography or visual recording" - surreptitious images acquired in public for sexual gratification, often called "upskirting" or "downblousing" - as a violation of federal free-speech rights and an improper restriction on a person's right to individual thoughts.
In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are "inherently expressive" and, therefore, are protected by the First Amendment. The opinion supported a previous decision by the San Antonio-based 4th Court of Appeals.
"The camera is essentially the photographer's pen and paintbrush," the opinion written by Presiding Judge Sharon Keller said. "A person's purposeful creation of photographs and visual recordings is entitled to the same First Amendment protection as the photographs and visual recordings themselves."
[. . .]
Peter Linzer, who teaches constitutional and First Amendment law at the University of Houston Law Center, said: "It's hard to see how you could make taking a picture a crime."

http://www.houstonchronicle.com/news/article/State-appeals-court-rules-upskirt-law-5763225.php?cmpid=twitter-premium&t=53c893b5408b7034ef

Texas court throws out 'upskirt' photo law
By Cindy George
September 17, 2014 | Updated: September 19, 2014 2:43pm

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"Sarchasm:" the gulf between the author of sarcastic wit and the recipient who doesn't get it. (Tom Witte, Gaithersburg)" Washington Post August 2, 1998, Style.

George Washington (1732-1799) "Government is not reason; it is not eloquent -- it is force. Like fire, it is a dangerous servant and a fearful master."

Albert Einstein (1879-1955) "The world is a dangerous place to live, not because of the people who are evil, but because of the people who don't do anything about it." "If you are out to describe the truth, leave elegance to the tailor." "Everybody is a genius. But if you judge a fish by its ability to climb a tree, it will live its whole life believing that it is stupid."

John Adams (1735-1826) Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.

Thomas Sowell (1930 -) "One of the common failings among honorable people is a failure to appreciate how thoroughly dishonorable some other people can be, and how dangerous it is to trust them."

Noam Chomsky (1928 -) “If we don't believe in freedom of expression for people we despise, we don't believe in it at all” (Guardian (UK), Nov.23, 1992)

Louis Pasteur (1822-1895) "Chance favors the prepared mind."

Winston Churchill (1874-1965) "If you will not fight for the right when you can easily win without bloodshed, if you will not fight when your victory will be sure and not too costly, you may come to the moment when you will have to fight with all the odds against you and only a small chance of survival. There may even be a worse case: you may have to fight when there is no hope of victory, because it is better to perish than to live as slaves." - "The best argument against democracy is a five-minute conversation with the average voter." "The inherent vice of capitalism is the unequal sharing of blessings; the inherent virtue of socialism is the equal sharing of miseries." "Never give in. Never give in. Never, never, never, never - in nothing, great or small, large or petty - never give in, except to convictions of honor and good sense. Never yield to force. Never yield to the apparently overwhelming might of the enemy."

E. E. Cummings (1894-1962) "To be nobody but yourself in a world that's doing its best to make you somebody else, is to fight the hardest battle you are ever going to fight. Never stop fighting."

Jodie Foster (1962 - ) "Normal is not something to aspire to, it's something to get away from."

Bertrand Russell (1872-1970 )"The whole problem with the world is that fools and fanatics are always so certain of themselves, and wiser people so full of doubts." "The fundamental cause of trouble in the world is that the stupid are cocksure while the intelligent are full of doubt."

Friedrich Wilhelm Nietzsche (1844-1900) "Convictions are more dangerous enemies of truth than lies."

Frank Leahy (1907-1973) "Egotism is the anesthetic that dulls the pain of stupidity."

Henry Ward Beecher (1813-1887) "A person without a sense of humor is like a wagon without springs. It's jolted by every pebble on the road."

James Michael Curley (1874-1958) “Never complain, never explain.”

Sigmund Freud (1856-1939 ) "The reason for so much bad science is not that talent is rare, not at all; what is rare is character."

Jonathan Swift (1667-1745) “I never wonder to see men wicked, but I often wonder to see them not ashamed.” "When a true genius appears in the world, you may know him by this sign, that the dunces are all in confederacy against him."

Andre Gide: (1869-1951) "Everything has been said before, but since nobody listens we have to keep going back and beginning all over again." "Believe those who are seeking the truth. Doubt those who find it."

Sylvia Plath (1932-1963) "And by the way, everything in life is writable about if you have the outgoing guts to do it, and the imagination to improvise. The worst enemy to creativity is self-doubt."

A woman responding to a threat from Cuban-backed terrorists in El Salvador, 1982 “You can kill me, you can kill my family, kill my neighbors, but you can’t kill us all.”

Aung San Suu Kyi (1945- ) "The only real prison is fear, and the only real freedom is freedom from fear."

Dorothy Thompson (1894-1961) "Only when we are no longer afraid do we begin to live." Jean de La Fontaine (1621-1695) "Nothing is more dangerous than a friend without discretion; even a prudent enemy is preferable."

Lady Marguerite Gardiner (1789-1849) "There are no persons capable of stooping so low as those who desire to rise in the world."

Louis D. Brandeis (1856-1941)"Those who won our independence believed liberty to be the secret of happiness and courage to be the secret of liberty." "Sunlight is said to be the best of disinfectants.”

Will Rogers: (1879-1938) "When people start taking the comedian seriously and the politician as a joke, everything changes." "This country has come to feel the same when Congress is in session as when the baby gets hold of a hammer."

Adlai E. Stevenson Jr. (1900-1965) "My definition of a free society is a society where it is safe to be unpopular." [Under this definition, Cambridge Massacchusetts, and the state of Massachusetts are not free societies. ed.]

Edward R. Murrow (1908-1965) "We cannot defend freedom abroad by deserting it at home."

Maria Bartiromo (1967 -) "My [commencement 2011] speech at St. John's [University, New York] three themes: work hard, no shortcuts, love what you do, and always do the right thing."

Ayn Rand (1905-1982) "Do not let your fire go out, spark by irreplaceable spark in the hopeless swaps of the not-quite, the not-yet, and the not-at-all. Do not let the hero in your soul perish in lonely frustration for the life you deserved and have never been able to reach. The world you desire can be won. It exists ... it is real ... it is possible ... it's yours."

Dwight Eisenhower (1890-1969) "Leadership consists of nothing but taking responsibility for everything that goes wrong and giving your subordinates credit for everything that goes well."

Henrik Ibsen (1828-1906) "The strongest man in the world is he who stands most alone."

Dr. Seuss (1904-1991, Theodor Seuss Geisel) "Be who you are and say what you feel, because those who mind don't matter, and those who matter don't mind."

Joseph Goebbels (1897-1945, Hitler's Minister of Propaganda) "If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State."

Howie Carr (1952- Boston Herald Columnist, WRKO Radio Talk Show Host) "The [MA] courts are more corrupt than the legislature." (November 18, 2010, 6:15 PM on his radio show.)

Eric Hoffer (1902-1983) "In a time of drastic change, it is the learners who inherit the future. The learned usually find themselves equipped to live in a world that no longer exists."

William F. Buckley, Jr. (1925-2008) "I'd rather entrust the government of the United States to the first 400 people listed in the Boston telephone directory than to the faculty of Harvard University.

Voltaire (François Marie Arouet, 1694-1778) "Common sense is not so common." "Doubt is not a pleasant mental state, but certainty is a ridiculous one." "Let us read, and let us dance; these two amusements will never do any harm to the world."

Martha Coakley (1953 - Democrat, MA Attorney General, 2010) "In Massachusetts, technically, it is not illegal to be illegal."

Deval Patrick (1956 - Democrat, MA Governor, 2010) "I am not a politician."

Michael Bloomberg (1942 - Democrat, Republican, Independent 3-Term Mayor of New York City and Billionaire) "Last time I checked, the pharmaceutical industry doesn't make a lot of money."

George W. Bush (1946 - ) "Intentions get overwhelmed by perceptions."

John Tudor "Technology makes it possible for people to gain control over everything, except over technology."

Isaac Asimov (1920-1992) "The saddest aspect of life right now is that science gathers knowledge faster than society gathers wisdom."

Robert Heinlein (1907-1988) "There is no worse tyranny than to force a man to pay for what he does not want merely because you think it would be good for him."

H.L. Mencken (1880-1956) "There is something even more valuable to civilization than wisdom, and that is character." "The whole aim of practical politics is to keep the populace alarmed -- and hence clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." "No matter how happily a woman may be married, it always pleases her to discover that there is a nice man who wishes she were not." "For every complex problem, there is an answer that is clear, simple, and wrong." "It is the dull man who is always sure, and the sure man who is always dull." "Democracy is the theory that people know what they want and deserve to get it good and hard." "Democracy is the art and science of running the circus from the monkey cage."

Michel de Montaigne: (1533-1592) "The most manifest sign of wisdom is a continual cheerfulness."

Aldous Huxley: (1894-1963) "I wanted to change the world. But I have found that the only thing one can be sure of changing is oneself."

T. S. Eliot: (1888-1965) Half the harm that is done in this world Is due to people who want to feel important They don’t mean to do harm But the harm does not interest them. Or they do not see it, or they justify it Because they are absorbed in the endless struggle To think well of themselves."

Burt Prelutsky, (1940- Columnist) "Surely something must be terribly wrong with a man who seems to be far more concerned with a Jew building a house in Israel than with a Muslim building a nuclear bomb in Iran."

Nicholas Murray Butler (1862-1947) "An expert is one who knows more and more about less and less."

Henry Kissinger: (1923 - ) "In this world it is often dangerous to be an enemy of the United States, but to be a friend is fatal."

Socrates: (469BC-399BC) "He is the richest who is content with the least."

Leo Tolstoy: (1828-1910) "Happy families are all alike; every unhappy family is unhappy in its own way." "Seize the moments of happiness, love and be loved! That is the only reality in the world, all else is folly." "Everyone thinks of changing the world, but no one thinks of changing himself." "Truth, like gold, is to be obtained not by its growth, but by washing away from it all that is not gold."

P.J. O'Rourke (A Parliament of Whores) "Imagine if all of life were determined by majority rule. Every meal would be a pizza. Every pair of pants, even those in a Brooks Brothers suit, would be stone-washed denim. Celebrity diet and exercise books would be the only thing on the shelves at the library. And - since women are a majority of the population- we'd all be married to Mel Gibson."

Marcel Proust (1871-1922) "Let us be grateful to people who make us happy, they are the charming gardeners who make our souls blossom."

Orson Welles (as Harry Lime in The Third Man, 1949) "In Italy, for thirty years under the Borgias, they had warfare, terror, murder, bloodshed, but they produced Michelangelo, Leonardo da Vinci and the Renaissance. In Switzerland, they had brotherly love; they had 500 years of democracy and peace -- and what did that produce? The cuckoo clock."

Tacitus: (c. 56 AD-c. 117) "The more corrupt the state, the more it legislates."

Ralph Waldo Emerson: (1803-1882) "Nothing astonishes men so much as common sense and plain dealing."

Doug Hoffman: (2009 Conservative Party Candidate for US Rep. NY 23rd District) "Congress fiddles while our economy burns. They lack common sense."

Rich Lowry: (On ObamaCare) "A shimmering mirage of wishful thinking and willful dishonesty."

President Obama (as he loses public support.) "We cannot wait any longer [. . .] There comes a time to remember the fierce urgency of right now."

Rush Limbaugh: (On first hour of his show broadcast October 23, 2009) Obama "is delusional." He's "seriously dangerous." He's "insane." Reacting to Obama's comments that the US Constitution is an obstacle to "redistribution of wealth." Obama also referred to "the so called founders."

Marek Edelman, leader of Warsaw Ghetto uprising. (1919?-2009) "Man is evil, by nature man is a beast. People have to be educated from childhood, from kindergarten, that there should be no hatred."

Adis Medunjanin (24 in January 2010, Queens, NY man accused of training with al Qaeda): "We love death more than you love life."

Edward Moore Kennedy (1932-2009): "Do we operate under a system of equal justice or one for the average citizen and one for the high and mighty?"

Robert Novak: (1931-2009) “Always love your country — but never trust your government!

Calvin Coolidge: (1872-1933) “Nothing in this world can take the place of persistence. Talent will not; nothing is more common than unsuccessful people with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. The slogan ‘press on’ has solved and always will solve the problems of the human race.”

Harry Callahan (Clint Eastwood) in Dead Pool: "Opinions are like a**holes. Everybody's got one."

Lyndon Johnson: (1908-1973) “The difference between liberals and cannibals is that cannibals don’t eat their friends and family members.”

Margaret Thatcher: (1925 - 2013) "The problem with socialism is that eventually, you run out of others people's money."

John Adams: (1735-1826) "Remember, democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a democracy yet that did not commit suicide."

Abraham Lincoln: (1809-1865) "America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves."

Thomas Jefferson: (1743-1826) "Merchants have no country." “In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

James Madison: (1751-1836) “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.”

Mark Twain: (1835-1910) "Politicians are like diapers. They both need changing often and for the same reason." "It's not what you don't know that gets you into trouble. It's what you think you know for sure that just ain't so." "Whenever you find yourself on the side of the majority, it is time to pause and reflect." "Keep away from people who belittle your ambitions." "Small people always do that, but the really great make you feel that you, too, can become great."

Maggie Gallagher: (1960 - ) "Politicians can pass a bill saying a chicken is a duck and that doesn't make it true. Truth matters."

Humpty Dumpty (In Alice in Wonderland) "When I use a word, it means exactly what I want it to. No more no less."

Groucho Marx: (Julius Henry, 1890-1977) "Outside of a dog, a book is a man’s best friend. Inside of a dog it’s too dark to read."

United States Constitution http://www.law.cornell.edu/constitution/constitution.overview.html

FACTS ARE STUBBORN:

John Adams: Facts are stubborn things; and whatever may be our wishes, our inclinations, the dictates of our passions, they cannot alter the state of facts and evidence.

Aldous Huxley: Facts do not cease to exist because they are ignored.

Thomas Fuller: Get the facts, or the facts will get you. And when you get them, get them right, or they will get you wrong.

Obama Lost the Debate on Health Care:Unable to counter widespread concerns of citizens about his health care plans, Obama supporters conduct intense vitriolic attacks on critics. Obama has no rational arguments, and hopes to discredit his critics by character assassination. They are not just racists now they are greedy racists and hate mongers. Maybe that will work. Ya think? Obama-Biden: Stupid is as stupid does. Biden: "We misread how bad the economy was."

Obama: [Correcting Biden]"We had incomplete information." So the US Congress voted for and the President signed a $787 billion stimulus bill without having read it, and with incomplete information? And they say others are stupid? Hello? Then Congress voted for a 1,000+ page "cap and trade" bill that none of them read.

Bloomberg: Daschle says, "Health care reform will not be pain free. Seniors should be more accepting of the conditions that come with age instead of treating them," while former Colorado Governor Dick Lamm says seniors have "a duty to die." If this does not sufficiently raise your ire, just remember that the President, Senators and Congressmen have their own special gold plated health care plan which is guaranteed the remainder of their lives and they are not subject to this new law if they pass it. Reverse the dangerous direction of the Obama administration and its allies.

Obama, The Un-Truman: David McCullough, in his biography of Harry Truman, "Truman" says on page 217, "Harry cared little more for other [than Huey Long] celebrated 'speechifiers' in the Senate. Admittedly fearful of making a speech himself, he seemed to resent particularly those who could and who made their reputations that way. They were the 'egotistical boys' whose specialty was talk." Obama admitted that he can make a speech but that he was incapable of doing anything in the Senate. Where did he gets his special powers during the campaign?

Obama's Mantra: He keeps repeating, "I won the election." He expects all Americans to support what HE wants. "I won," is how Obama implements the post-partisan unification of America. What a guy! See also Rich Lowry's "Sorry, O: 'I won' Won't Cover this," New York Post, February 6, 2009, page 27. http://www.nypost.com/seven/02062009/postopinion/opedcolumnists sorry__o__i_won_wont_cover_this_153839.htm

MIDDLESEX DA: We're too busy to address crimes less than murder. On Thursday June 25, 2009 Marian Ryan, who works for the Middlesex District Attorney in MA, returned my call from the previous day. She heads the unit for abuse of elders and abuse of persons with disabilities. She told me, "We've had four murders this month." That was to explain why she was unable to address 35 years of police abuses of a citizen with a disability now an elder. She said that a police officer making a threat did not rise to the level of a crime. She did not have time or resources to address abuses by the City Manager and the Police Commissioner of Cambridge, and the Harvard University campus police. It was no concern that using police to harass a person with a disability may be the reason for the four murders. MA Civil Rights statute and possession of illegal firearms are felonies, but not murder. Misallocation of resources is easily apparent. If the police focused on criminals instead of harassing elders with disabilities there might be less violent crime. But who was I to argue.

Cambridge Censorship: In October 2009 City Council Candidate Kathy Podgers complained to Attorney Bill August, long term president of the Cambridgeport Neighborhood Association, that her posts to the neighborhood discussion lists were not appearing. Then Bob LaTremouille added his similar complaints. When I chimed in that my posts did n0t appear for many months Bill August accused me of libel. I said he ignored my complaints about censorship. For a lawyer he does not read very well. On one occasion in 2007 I sent a letter via Fedex from one part of Cambridge to another. I used Fedex because of frequent tampering with my mail by USPS employees. Mail was withheld by USPS employees, and some mail was intercepted and never got to where I sent it. The letter sent by Fedex never arrived either. Their tracking system ended before it was delivered. I wrote to the President of Fedex. He sent me a check for $25 to compensate me. What good is money if you can't send a letter from one part of a city to another? In June 2009 I sent a letter to a US Government agency complaining about a mobbed up police officer who was protecting criminals who harass me each day. Two days after I sent the letter the police detective appeared at a market as I shopped. He used a young woman as bait to try to have me arrested. In June 2009 someone opened a YouTube account solely to publish a comment attacking me personally. This is a frequent experience of an ongoing character assassination campaign by criminals and their police associates. A Harvard University attorney told me not to make complaints to their real estate offices but to the office of the General Counsel. The lawyer assigned was trying to deceive me. On June 6, 2009 I noticed a threat from a police officer as a comment under one of my videos posted on YouTube July 7, 2008. The video shows a Cambridge police patrol car parked in a bus stop. The officer was having dinner nearby not on an emergency call. Every day since I complained to the Attorney General about the threat Cambridge police or Harvard campus police follow me and try to provoke me. The Attorney General is married to a supervising Cambridge police officer. I learned on June 15, 2009 that the FBI was investigating me again. In May 2009, my comments on the Boston Herald web pages (a public accommodation) were removed allegedly due to violations of guidelines. When I complained one was restored. Interns referred me to a staff writer when three of my comments about the shooting death at a Harvard dorm were removed. Someone unknown to me posted a picture of a man from the city in my YouTube profile. That means that someone is tampering with my YouTube account. That is a felony under US law. On or about December 12, 2008 my name was removed from two neighborhood discussion lists--Riverside and Cambridgeport. My attempts to be put back on were ignored by the former President of the Riverside neighborhood, Larry Adkins. Cambridgeport moderators opened my new access in February 2009. In May 2009 I received messages from the list but was unable to post messages. Last year I was unable to receive or post messages to the Porter Square neighborhood discussion list. No notice there either. They began a new list this year and I now get messages. But I was the target of personal attacks on the Porter Square list, the Cambridgeport discussions and on the Cambridge Chronicle web pages. An FBI informant who maintains a web site about the City of Cambridge ridicules me and others who he believes have disabilities. My account with YouTube (more than 250 videos posted) was shut in August 2008 and my appeals of Fair Use Doctrine were ignored. On April 15, 2009 my YouTube account was re-opened. Emily Rooney, host of the PBS news show, Greater Boston threatened to have me banned from Boston. Cambridge City Councilor and Harvard lawyer, Brian Murphy, who resigned in February 2009 to take a six-figure job with the state used council rules to silence my expression. These are rules that the Council created but ignore at every meeting. An email account I used specially for discussion lists was shut down with no notice and no reason or warning given. My several emails inquiring why have been ignored. That account was re-opened on February 10, 2009. Google Video flagged and blocked four uploaded episodes of a cable access TV show I produced and hosted on CCTV. When I appealed their decision, they agreed to put it back up. But as of this date one remains blocked. In February 2009 a long term producer of documentaries at CCTV told me "There is no such thing as Free Speech." That was the second time someone in Cambridge said that to me.

ENOUGH ROOM

September 21, 2014

Updated: Texas High Court: Upskirt Photography, Video Is Protected Expression

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