He Trailed Women With a Camera. It Was Legal, Judges Say. In this NY Times article, “Trailing Women With a Camera Was Legal, Appeals Court Rules” by Maria Cramer, May 12, 2020, David Eric Lambert’s unlawful photography convictions were tossed out last month. “It is simply not reasonable to expect that our fully clothed images will remain totally private,” one of the judges wrote.

This decision is wrong. It shows the problem with limiting our rights to a subjective culturally changing notion of “reasonableness.”

A man follows women in stores and videotapes their clothed body parts, focusing on their buttocks and breasts.  The appeals court found that since the women could be filmed by security cameras and with the ubiquity of camera video phones In our Society, the women had no reasonable expectation of privacy to their clothed bodies filmed in public.

The fact that privacy is eroding should not mean that people give up their rights to privacy for all purposes.  We do not expect security cameras to zoom in on body parts to gratify the viewer for sexual or commercial purposes.  Indeed, if they did, a person should be able to sue the store.

We want to promote a sense of safety for all walking in public places.  This decision erodes that sense, especially for women. At the same time that we are working hard to eradicate sex harassment in the workplace and in schools, we should not legitimize the violation of social norms by denying a woman’s right to dignity by walking in public.

There is no First Amendment right to film people’s bodies or use their likeness without their permission.  This man should pay willing women to model for him, not skulk around secretly filming women for commercial or sexual purposes.

But, says the civil libertarian and defense lawyer in me, why must we criminalize this conduct? The reason is because we expect the state to take on the burden of keeping us safe and allowing us to feel safe In public. There is a particularly insensitive nature to this Opinion, written by three male judges.  We can choose to criminalize the filmmaker’s zooming in on female body parts, just like we can criminalize the filming of women not fully dressed.  I can’t help but wonder if the man had focused his camera on men’s genital areas, whether the decision would have been different.

And we can alter the character of the society in which we live, the way in which we interact with each other, the way our children grow up.  We need not say, everyone is doing it, so no one has the right to say “no”.  We can demand this man ask the woman to first say “yes.”