WEIRD NEWS
11/06/2013 01:13 pm ET Updated Nov 07, 2013

Michael Robertson Says It's His Constitutional Right To Take 'Upskirt' Photos

A Massachusetts man claims he has the constitutional right to take "upskirt" photos of women in public.

Michael Robertson, now 31, was arrested in 2010 after trying to take cellphone photos up women's dresses on the Boston subway, according to the Boston Herald.

The Andover man is charged with two counts of photographing an unsuspecting nude or partially nude person, the Eagle Tribune reports, and faces more than two years in jail if found guilty.

Monday, Roberton's lawyer, Michelle Menken, argued before the Massachusetts Supreme Judicial Court that Robertson did not commit a crime because his right to snap photos up women's skirts is protected under the First Amendment.

“If a clothed person reveals a body part whether it was intentional or unintentional, he or she can not expect privacy,” Menken said in court. She went on to say that "peeping Tom" laws protect people from being photographed in bathrooms or dressing rooms, but do not protect clothed individuals in public areas.

She also argued he could not be guilty of photographing a "partially nude" person because the women in the photos were fully clothed, and their genitalia was covered by underwear

“What he saw was in plain sight. He did not place his camera directly up a women’s skirt. He saw what was in front of him,” she argued.

Watch the hearing here.

State Attorney Cailin Campbell countered that subway passengers have an "understandable expectation" that they will not be "photographed like that in that kind of setting."

In 2006, a 34-year-old man in Oklahoma was acquitted in a similar case when. After he stuck a camera under a 16-year-old's skirt at a SuperTarget store and snapped a picture of her underwear, the court ruled that the teen did not have "a right to a reasonable expectation of privacy."

However, the ruling caused such public outrage that the state eventually passed a law explicitly making it illegal to take photos of a person's private areas in public without his or her permission.

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