A while back we did a piece about New York photographer, Arne Svenson, who photographed his neighbors in their apartments through their open windows and without their permission. A couple whose children had been photographed in their apartment, sued him. You can read the whole story here if you missed it the first time.

Short version, the court ruled in the photographer’s favor, stating a specific fine art exception and he did not need releases. We noted in that article that these type cases are both fact and state sensitive. State laws typically apply to cases involving the creation of potentially offensive photographs and/or claimed invasion of privacy of subjects appearing in photos without their consent.

Recently the Texas Court of Appeals by an 8 -1 vote has effectively tossed out a criminal statute prohibiting ‘improper photography’ on the grounds that it is an unconstitutional abridgment of a photographer’s right to freedom of expression. The Court in its reasoning essentially stated that the “photographer’s camera is equivalent to a journalists’ pen”.

The statute banned taking images of another person in public without their consent and with the intention to “arouse or gratify the sexual desire of any person”.

Balancing a basic First Amendment right against a practice widely engaged in by sexual predators, especially those who target children, is a classic case of a Court being in a “no win” situation.  Whatever the decision the result was going to be a large unhappy, segment of the public.

Quoting Texas Judge Sharon Keller: “Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendants mind’ the First Amendment was designed to guard against.” The Court also opined that the statute was unclear as to just what type of photography had been criminalized.  (Conceptually – criminal statutes must be very precise with respect to the prohibited behavior a violation of which may result in jail time).

So the case was tossed. It revolved around a Ronald Thompson who was stopped and arrested by police officers after being alerted by concerned parents at SeaWorld in San Antonio in 2011. Officers later found 73 images of children in swimsuits after confiscating his camera. He was indicted for multiple felonies for “improper photography”.  We have not viewed any of the subject images, but you can read more more about it here or by doing an Internet search of the story.

This Texas ruling applies only to the State of Texas. The reasoning however, may or may not be “borrowed” or “adopted” by courts in other states. Additionally, it has little effect on Federal Criminal Statutes that deal with the interstate or international transmission of child porn.

Digital photography coupled with the use of the Internet has helped cause child pornography to flourish. In the days of film, such images had to be processed by a lab or by the shooter in their own darkroom. Labs would typically refuse to process or print such images and would often report the photographer to the authorities. Take the Walmart and Foto Mats (remember them?) out of the equation and anybody can create and trade or sell sordid images to fellow pedophiles or predators anywhere in the world under the secrecy of the Net. Police and FBI attempts to police the web are on-going and have expanded but the trade in such garbage continues.

Lest you think that such “photographers” hide under raincoats, we regret to inform you they rarely have raincoats these days. A few years ago, in a full room of people, at one of our seminars in Las Vegas.  A “photographer” attending our lecture during Q&A, stood up in front of about 200 people and asked us the following question:
“I photograph children who are naked and semi naked in public places.  Do I need to get model releases?” 

When asked by us as to what possible legitimate reason he could have to create such images the attendee responded,

“I do it for artistic reasons and don’t make any money on the photos”.

The room went silent, holding their breath. Rather than be polite, we simply refused to answer the question and he got up and left perhaps feeling insulted but not embarrassed.  We were all happy to see him leave the room and not share the same air we were breathing.

Exacerbating the problem is the fact that many European families who frequent Caribbean beaches allow their children to play on the beaches sans swimsuits. While there are cultural reasons for the practice it is unfortunate that both “amateurs” and “professionals” scout such ocean playgrounds and photograph naked or semi-naked children with near impunity. Some cruise lines now informally warn their passengers departing for such beaches of the practice. Once these images find their way onto the Net, they get distributed world wide and the photos will likely be accessible forever.  Most parents will simply never know that their children are being exploited, thinking that this happens to others, not to them.  

In conclusion…. we have no conclusion. What seems obvious may not be so obvious in court, as this case in Texas proves. What Thompson did was more than despicable, but the law as it read in Texas would also sweep up innocent photographers who shoot real documentary photography. Even street photographers like Robert Frank, the late Vivian Maiers, and even our good friend Jay Maisel, could conceivably be arrested for taking photos in Texas, as their statue reads.

On one hand, real photographers have the right to take photos. And on the other hand, the public should be protected from sexual predators. It’s a tough balancing act and it plays out differently in different states.

Hence the title of this piece. The statutes from state to state are a confusing state of affairs.