Lawyer Defends Client’s MBTA ‘Up-Skirt’ Photos, Claims They Should Be Protected by the First Amendment

She said in public places like the T, people “cannot expect privacy.”

By Steve Annear | Boston Daily | November 5, 2013 3:33 pm

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Green Line Photo Uploaded by Massachusetts Office of Travel & Tourism on Flickr

A lawyer representing an Andover man arrested in 2010 for allegedly taking photos up women’s skirts on the T argued this week that her client’s actions should be protected by the First Amendment.

Attorney Michelle Menkin told Super Court judges on Monday that the law being used against Michael Robertson—the state’s “Peeping Tom” law—only applies to people being photographed unknowingly while nude or partially nude, in places like dressing rooms, and does not cover strangers in public settings that are clothed.
In 2004, at the onset of technological advances where cell phones with portable cameras became more common, Massachusetts adopted a law to punish secret surveillance of a person who is nude or partially nude in areas where there is an expectation of privacy.
Robertson, 31, was arrested three years ago after he was caught taking photos up a decoy police officer’s skirt, using his cell phone, on an MBTA Green Line trolley.
Following his arrest, Robertson filed a motion to dismiss the charges of attempted electronic voyeurism for lack of probable clause, but his appeal was denied, so he decided to try and get the motion dismissed. Robert’s trial in local court is currently on hold, pending the outcome of the SJC hearing.
Menken argued this week that the current law being used to charge Robertson can’t be the basis of a conviction because, “the statute, on its face, applied to Peeping Tom activity aggravated by the use of a recording device, and does not protect clothed people in public places.”
In a court-filing, she wrote:

…construing the statute so broadly as to encompass photography of clothed people in public venues would render it unconstitutionally overbroad…it would potentially punish artistic  and journalistic activities protected by the first amendment.

“A person expects that the area under their clothing is private and protected against hostile intrusion … but if a clothed person is out in public  and reveals areas under their clothing, whether inadvertently or otherwise, to plain view, she or he no longer has an expectation of privacy,” Menkin said in court.
In a counter argument, the Suffolk District Attorney’s Office said that there is an expectation that people should not being taking pictures up women’s skirts, despite the way the law is written, however. “A person has a reasonable expectation of privacy not to be so photographed while she rides the train … [and] that areas of her body that she does not expose to the public will not be photographed.”
Prior to this case, Sen. Katherine Clark submitted legislation on Beacon Hill to refine the language of the law and make it less ambiguous. In her proposal, Clark recommended adjusting the wording in the current state law, so that it reflects technological changes such as the use of cameras on phones, and increases fines for those convicted of violating the law.
Clark also wants to include the words “intimate area” to the state’s law, so that even body parts covered by clothing—like underwear—would be protected. That definition would cover “human genitals, buttocks, pubic area, or female breast below a point immediately above the tip of the areola, whether naked or covered by undergarments.” That legislation is pending, however.
If Roberston’s appeal is denied, and he is convicted under the law, he could face up to two-and-a-half years in prison.