A man charged with "upskirting" a woman on the Green Line in 2010 - and captured the next day by a decoy T cop in a skirt of her own - wants the Supreme Judicial Court to toss the charges, saying the law used to prosecute him was only meant to protect women in the shower or dressing rooms, not to people practicing the First Amendment in public.
The Suffolk County District Attorney's office, which wants the chance to convince a jury or judge to throw the book at Michael Robertson, begs to differ, saying that even in a public space, state law grants people certain privacy rights - such as the right not to have a camera pointed into their crotch.
The state's highest court heard arguments from both sides on Monday (watch the hearing - skip to 8:20).
In a brief filed before the hearing, Robertson's lawyer argues that the state law used to charge him specifically refers to "nude or partially nude" victims in "such place and circumstance would have a reasonable expectation of privacy in not being so photographed, videotaped or electronically surveilled" and the normally dressed women on the T don't meet those criteria.
In fact, attorney Michelle Menken says, the T is exactly where people should expect to have embarassing photos taken, pointing to both the T's own policies that allow photography and sites such as People of the MBTA, and that such photography is protected under the First Amendment. In her arguments before the court on Monday, she said holding a cell phone was hardly furtive or secretive.
The DA's office, however, says that even on the T, people have some expectations of privacy, for example, what is underneath their clothing. The very fact that a woman is wearing a skirt indicates there are parts of her body that she does not wish to expose to public purview, assistant DA Cailin Campbell argued:
A person has a reasonable expectation of privacy that areas of her body that she does not expect to be public will not be photographed.
And the fact that Robertson might have gotten photos of a woman's panties, rather than a particular body part, is as immaterial as the case of a pickpocket who reaches into a pocket that turns out to be empty - in both cases, the suspect had the intent to do something illegal - the DA's brief says.
The Lawrence Eagle-Tribune has more on the oral arguments.