Monday, October 13, 2014

Up the Skirt Photos a Free Speech Right?

"The center cannot hold; things fall apart."    —W. B. Yeats

You probably missed it, but Washington D.C. Superior Court Judge Juliet McKenna recently declared innocent a man arrested for surreptitiously taking photos up women’s skirts of their private parts. Why? The photos were an exercise of “free speech." Besides that, woman do not have a “right to privacy” in public places if they are so foolish as to let someone do this. (2)

Do you ever get the impression that the definition of  “free speech” may be going too far—and all at the same time an ominous counter-trend in the law eats away at other protections to our freedom?

On the one hand, we’ve gained all kinds of ground for what sociologist Robert Bellah called “individualistic expressionism.” (3) On the other hand, laws that allow the government to confiscate personal property merely upon suspicion of a crime, for example, continue to grow apace. And this is to say nothing about the egregious ways in which the rights of minorities are violated daily in the justice system. (I sometimes have a momentary paranoid flash that increasing personal freedom may be a “bread and circuses” ploy to satisfy the population while the National Security State encroaches more and more). 

While legally a different issue, the reinterpretation of the Second Amendment away from its original social meaning (the need for militias) to a purely individualistic meaning (my absolute right to carry a weapon) is part of the same trend. 

An eroding societal ‘center’?

Don’t get me wrong. I’m very happy to live in a country with a right to express freely my social, political, and religious ideas. But stealth photos of women’s crotches as free speech—give me a break! Better yet, give the judiciary some greater sense of the idea that every right carries with it responsibilities. I was taught, in Seminary, that any virtue carried to the extreme becomes a vice, and that even free speech was limited by a cultural sense of social responsibility.

But that stabilizing center of social sensibility, personal self-restraint and responsibility progessively erodes in our midst, more and more issues end up in court rather than settled by cultural norms and standards.

Where is the balance?

Early 20th Century Supreme Court Justice Oliver Wendell Holmes said that the constitutional prohibition of legislation against free speech was not ”intended to give immunity for every possible use of language.” He was the product of a culture which considered free speech to be tempered by self-regulation for the common good.  Contemporary legal theorists like Nigel Warburton consider such ideas “outmoded.” (4)

"Free speech” has expanded to cover flag burning, most pornography, heckling near women going for an abortion, hurling anti-gay slurs at the military funerals and outside church services, and (still a mind-boggle to me) corporate and personal rights to give enormous amounts once forbidden to political campaigns. Liberals and conservatives alike applaud the freedoms they like and deplore those they don’t.

If rights have no limits, one set of rights clashes severely with another set of rights. All issues of freedom are, for Americans, very touchy. But so is the guy using stealth to peek up your skirt, which new technology makes easy to do secretly and stealthily.

How can we find a new stabilizing center? Or will our growing freedoms become the anarchy the Security State will find a tempting target for future expansion?
1. William Butler Yeats, The Second Coming.  See

2. See Jessica Goldstein,  "In the Light of the Upskirt Ruling, Some Fashion Tips for Ladies"

3. See Robert Bellah, Habits of the Heart: Individualism and Commitment in American Life.

4. See Free Speech: A Very Short Introduction by Nigel Warburton.

1 comment:

  1. Bravo. The law has not evolved as quickly as the technology. Judges are afraid to be seen as activist.