It turns out that there is a narrow slice of the world where creepy people can engage in kinda twisted stuff without committing a crime.  The place happens to be on the steps of the Lincoln Memorial.  From the Washington Post:

“There is no evidence Mr. [Christopher Hunt] Cleveland positioned his camera in any way or employed photographic techniques or illumination, so as to capture images that were not already on public display,” [D.C. Superior Court Judge Juliet J.] McKenna wrote in her ruling.

This appears to be technically true.

The move was opposed by U.S. Attorney Akhi Johnson, who wrote in a filing that “it would be difficult to dispute that women generally have a subjective expectation of privacy against photographs of their private areas while wearing clothing to cover the private area.”

This is, indeed, beyond dispute.  It’s also just part of the question, as the inclusion of the word “subjective” demonstrates.  That no one expected, as they sat on the steps of the Lincoln Memorial, that some perv with a telephoto lens was going to take pictures of their crotches and butts, isn’t in doubt.  Who would do such a thing?  Well, Cleveland, obviously.

There is no question that Cleveland’s conduct was “repellent and disturbing,” as his lawyer, Jon Norris, conceded.  While it might be argued by some that even though Cleveland directed his camera a bit too low, the virtue of the ruling is that it protects the right to take photographs of things visible in public, and this is the same right that allows people to capture the images of police engaged in misconduct.  Is that not a worthy right to protect?

While the argument has merit, it’s also a bit disingenuous.  Just because you can do something doesn’t mean you should, and certainly doesn’t mean that it’s in any way laudable.  But then, no one is suggesting that Cleveland should be given a medal for being such a champion of free speech.  The question isn’t whether this jerk is a hero, but whether he’s a criminal.  He’s neither.

By characterizing Cleveland’s conduct as taking “upskirt” pictures tends to obscure the actual conduct with the net result, it’s not an entirely unfair characterization.  Yeah, he was shooting pics of “private parts” that weren’t kept private enough.  It’s not that women intentionally revealed their crotches, but the images taken were nonetheless public.  It’s not that Cleveland may have mistakenly thought they were deliberately revealed.  He knew what he was doing, but he also knew that as long as he could shoot his pics in public, that was lawful.

And it’s not that anyone would morally fault the U.S. Park Police officer who caught Cleveland taking his pictures, and figured there was something illegal, not merely disgusting, about his conduct.  But legally, the officer was wrong.  He may not have thought this conduct should be lawful, but lawful isn’t about how things feel.

This will no doubt prove to be a controversial decision by Judge McKenna, who will be attacked as everyone from a self-loathing misogynistic woman to a perv-apologist.  That comes with the job, when people just don’t like the outcome and feel compelled to lash out because the law doesn’t prohibit every act they “feel” it should.

Did Cleveland find a “loophole” in the law, in the fact that he photographed nothing that wasn’t already “exposed” to public view?  In a sense, he did.  Few people would argue that there is any societal value in allowing a guy to take covert pictures of women’s crotches and butts.  This isn’t the free speech we hold so dear, per se.

And yet, it is.  It is because there would be no way to prohibit conduct such as Cleveland’s without simultaneously prohibiting conduct we do hold dear.  As soon as we try to frame law around feelings, or base criminality upon the “subjective expectations” of the victims, we lose not only the conduct under attack but all other conduct that can be swept away with it.  And that conduct will invariably include conduct that we do hold dear.

How many cops, despite it being beyond question that they are subject to being videotaped and photographed in the performance of their duty, continue to insist that they have a right to privacy, and that they will arrest anyone who takes their picture?  They believe they have a “subjective expectation” of privacy.  We all have “subjective expectations” of lots of things.  Why won’t all you other people just do only what they want you to do?

As warped as Cleveland’s conduct was, taking pictures of things exposed in public, whether deliberately, accidentally or with a telephoto lens, is still just taking pictures of things exposed in public.  And that’s a right that demands protecting, even if some twisted jerk like Cleveland uses it for his own disgusting purposes.  So Cleveland goes free, and he should. No, he must.  Hard as it may be for some to accept, this was the right decision, and one that inures to all of our benefits.

Update:  Reaction among the entitled is exactly what one would expect:

But honestly, this ruling makes perfect sense. Everything bad that happens to a woman is always the woman’s fault. You can never allow yourself to leave the house in a loose-fitting garment and just expect that no man standing behind you on an escalator will snag that underpants portrait. Remember: when you’re female, if someone else behaves in a manner that is completely, irredeemably inappropriate, the person who is actually responsible is you.

Like trying to use reason with the three-year-old, all they see is that they can’t have exactly what they want, so they recharacterize the problem in terms of their victimhood.  Neither the court nor any rational person blamed the women involved; this was a decision about what conduct constituted a crime, not about how the women feel about themselves.

The level of irrational narcissistic analysis is just embarrassing, and highly counterproductive in terms of seeking a remedy.  To the extent there is conduct here that could be susceptible to prohibition, absurd assertions take it further away from a cure. For that, commentary like that in Think Progress by Jessica Goldstein is to blame. Stupid knows no gender.