NewburyportNews.com, Newburyport, MA

March 7, 2014

Our view: 'Upskirt' decision lacks common sense


Newburyport Daily News

---- — The Supreme Judicial Court of Massachusetts offered some implicit advice on Wednesday to women who ride the trolley in Boston.

Better wear pants.

In a unanimous ruling, the court said there is no law to protect women from degenerates who want to take furtive “upskirt” photos of them as they ride the MBTA.

The case grew out of the arrest of an Andover man, 32-year-old Michael Robertson, in 2010 for using his cellphone to sneak photos and videos of two women sitting opposite him on the Green Line on two separate occasions.

Robertson was charged under the state’s “Peeping Tom” law, which outlaws photos of nude or partially nude individuals taken without their knowledge in a place where they had a right to expect privacy.

The high court said the two women on the Green Line were not nude or partially nude because they were wearing skirts or dresses — even if they weren’t wearing anything under those garments to shield them from prying cellphones.

Or as Justice Margot Botsford, writing for the court, memorably said: “No matter what is or is not underneath the skirt by way of underwear or other clothing.”

Her underwear ruling said further that the women had no right to privacy on the trolley.

“Because the MBTA is a public transit system operating in a public place and uses cameras,” Justice Botsford wrote, “the two alleged victims here were not in a place and circumstance where they reasonably would or could have had an expectation of privacy.”

We’re guessing Justice Botsford is seldom exposed to the huddled masses on the Green Line.

But to say the women could not “reasonably” expect privacy for their private parts while on the T is absurd.

Name one reasonable person who, until the court weighed on Wednesday, would have said it’s OK to go fumbling under a woman’s clothing by means of a camera.

And the fact the trolley cars have security cameras is irrelevant unless the camera are mounted on the floor pointing up.

The decision is yet another example of the death of common sense in the higher courts.

There’s a simple reason the law did not specifically ban “upskirting.” It’s because it never would have occurred to anyone but a member of the SJC that it needed to be spelled out that it was wrong.

In days long gone, when people had a sense of decency and respect for others, someone caught shooting such photos would have been in for a horsewhipping or worse.

Of course, there are already calls to rewrite the anti-voyeur law or pass a new one forbidding upskirt photos.

“The ruling of the Supreme Judicial Court is contrary to the spirit of the current law,” House Speaker Robert DeLeo said. “The House will begin work on updating our statutes to conform with today’s technology immediately.”

Senate President Therese Murray said she was “stunned and disappointed” with the court ruling. She said the Senate will respond quickly.

In 1964, U.S. Supreme Court Justice Potter Stewart famously expressed that link to common sense that Botsford’s decision seems to lack. When attempting to qualify what constitutes hard-core pornography, Stewart said, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.”

Indeed, reasonable people can intuitively decipher what constitutes pornography, or invasive photos on a public transit car. New laws really shouldn’t be necessary.

But no doubt we will need even more of them, as new, more invasive technologies come on market to enable as yet unimagined outrages.