No, upskirt shots aren't protected by the Constitution

For many women living in urban areas, putting up with catcalls is a daily experience. And if that weren't enough, street harassers could soon be able to take upskirt photographs of women under the guise of the first amendment.

On Monday, 31-year-old Michael Robertson of Andover, Mass., argued that charges against him for taking upskirt photos of women violated his right to free speech. Robertson was arrested in 2010 for breaking the state's "peeping Tom" law on Boston's T subway, but his municipal trial has been stayed pending his appeal to Massachusetts' highest court. If convicted, Robertson will be jailed for at least two years.

Robertson's lawyer, Michelle Menken, argued in front of the state's Supreme Court on Monday that his case should be thrown out, saying, "If a clothed person reveals a body part, whether it was intentional or unintentional, he or she cannot expect privacy." According to Menken, the peeping Tom law was irrelevant to Robertson's actions, as it is only applicable in private places, such as fitting rooms and bathrooms.

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Menken also argued that the law only protects those who are partially nude, and Robertson's subject wore underwear. So, ladies, the next time you take public transportation, remember that wearing panties automatically strips you of any right to privacy. "They have to be in an exposed state to violate the current law, and these women were not," Menken said.

By Menken's standards, women who choose to wear skirts or dresses in public are automatically consenting to potential viewing of their private areas, provided that they are wearing underwear. Her logic is a slippery slope in itself — what if a woman wears a skirt with a thong or even Spanx, which leave part of a woman's genitals in an "exposed state"? While Robertson's actions may not have violated the letter of the law, as he took the photos in a public area, there are still reasonable grounds for him to be prosecuted. His subject did not choose to expose her underwear and is still a victim of peeping Tom behavior.

When the Bill of Rights was ratified in 1791, the Founding Fathers hardly had peeping Toms and modern technology in mind with the "freedom of speech" clause. It's hard to believe, though, that if cell phones had been around, the Fathers would have supported creepy men taking photographs of unsuspecting women, regardless of whether or not it was in a public place. Freedom of speech is hardly an argument for discreetly photographing someone's genitals.

Menken's arguments send a terrible message to women: If you're the victim of an unwanted sexual action, it's your own fault for deigning to enter the public while wearing a skirt. As Erin Gloria Ryan at Jezebel notes, it's not difficult to imagine peeping leading to physical assault and even rape. By suggesting that women are to blame when men violate their basic privacy, Menken asks the court to set an awful precedent for victim blaming in sexual assault cases.