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Massachusetts Court Says 'Upskirt' Photos Are Legal
cold fjord writes with this CNN report: "Massachusetts' highest court ruled Wednesday that it is not illegal to secretly photograph underneath a person's clothing — a practice known as "upskirting" — prompting one prosecutor to call for a revision of state law. The high court ruled that the practice did not violate the law because the women who were photographed while riding Boston public transportation were not nude or partially nude."
This is a good thing for anybody who believes in the rule of law. Laws should be written to clearly put those governed on notice as to what behavior is prohibited. Pervy or not, if the photographer was within the actual letter of the law, he shouldn't be be held criminally liable for doing something which was not prohibited. The solution is not to "interpret" the law to extend beyond its text; the solution is to fix the bad law.
If laws can be "interpreted" to go beyond their plain meanings, then it becomes difficult for those subject to them to figure out what is prohibited. Not only is it patently unfair to hold someone accountable for an action that wasn't listed as prohibited, there is a strong constitutional precedent for holding it "void for vagueness." See, e.g., Connally v. General Construction Co., 269 U.S. 385, 391 (1926):
[T]he terms of a penal statute [...] must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
"Make it ten--I am only a poor corrupt official."
--Captain Louis Renault (Claude Rains), Casablanca
Too late, Mass Legislation has already passed the law banning upskirting. It's heading to the governor's desk. If not today, by tomorrow, it'll be signed and put into effect.
That's because it isn't actually their job to do that. They arrogated that power to themselves.
The actual power given to them by the constitution is the usual judicial power. Or in other words: guilty, not guilty, adjudication withheld, case dismissed, etc. They have original jurisdiction in cases that involve the states, ambassadors and so forth. Nowhere does the constitution say or imply they can declare a law unconstitutional. That is done by the constitution itself. That's the whole damned point of it.
The consequence of allowing these judges to determine constitutionality has been (just to mention a few) inversion of the commerce clause, violations of almost the entire bill of rights, usurpation of states rights by the feds, and more.
The constitution is written in plain English. If it proves insufficient to the cause, it can be amended. The very first amendment it ought to have is the holding of legislators accountable when they make laws that the constitution rules out. In the vast majority of cases, that's bloody obvious. For instance, "shall make no law" is crystal clear. So what does congress do? They make laws in that very area anyway. And the justices? They uphold these laws. It's no wonder the legal system is such a wreck. They aren't traitors; they're just criminals.
I'm sure it's actually still illegal. What it's not, according to the actual case, is on the wrong side of the "anti-peeping tom" law. I'm guessing the prosecutor fucked up, tried to go for a charge with a bigger sentence, and couldn't make it stick.