Redstate

So I'd be interested to know if the OK legislature is now working at lightening speed to rectify the provision.

... and you point out in your comment, the court ruled that the young lady did not have "a reasonable expectation of privacy."

That is the outrageous part of the ruling. The legislature did not screw up here and the courts did not do what Conservatives desire. Unless you are willing to follow the asinine reasoning of the court and believe covering your body with clothing does not project a reasonable expectation of privacy for anyone vertical and approaching 98.6.

How far, now, must women go to convince strangers they're not interested in flashing their goodies to every fellow shopper! Perhaps burquas, as a personal Bill of Rights statement, could be all the rage in the Great Plains!

Further, the guy understood he was doing wrong or why else the clandestine nature of the photography? If it's all OK, why not just walk up to a woman, lift her skirt (after all it's not private anymore, might as well get the best shot possible) and snap away. If she runs, ask her to lift her skirt up for some "action photos" and why not ask the court to make her come back so you can exercise your right to photograph her in public with her undergarments displayed?

The idea that anyone in their right mind would seriously consider that the law as written means that this result is legal is not fit to have an opinion or reproduce! Harsh language? Absolutely! But to suggest that I should be stupid enough to accept such foolishness as serious legal commentary and that I, as a Conservative, ought to be happy with the result, is pretty harsh as well.

There is nothing in this law, not even in the emanations from the penumbra thereof, that would make Mr. Ferrante's actions legal. Nothing! If Mr. Ferrante begs to differ, he is welcome to try and photograph my wife and daughters should I permit them to wear skirts in public in Oklahoma.

The general decency, modesty and morality of clothing herself is expectation of privacy enough for any woman to be protected from the likes of Mr. Ferrante and the Oklahoma courts. Any opinion to the contrary, while permissible to hold under the law, is not sufficiently grounded in reality to be seriously considered by anyone. That an Oklahoma court is incapable of seeing that should be frightening, not a matter for legal debate.

Blue

For more from The Muse, please visit Blue Collar Muse; and
The Voice of Liberty Podcast Network

"After two years in Washington, I often long for the realism and sincerity of Hollywood." -Fred Dalton Thompson

You're misinterpreting JWL's point and claiming contradictions that simply aren't there. To wit:

You said "The Court did not find that the man had done nothing wrong." Two sentences later you said, "Instead, it found that the act was not a violation of the statute under which the man was charged." Perhaps I'm just one of those misinformed, fly off the handle people that doesn't understand English very well but I think you need to decide which side of the argument you want to champion and stick with it. Either the court said he did nothing wrong or they upheld his conviction of a crime.

This is a false dichotomy. It is entirely possible for something to be wrong but legal. Indeed, as conservatives that is the way we ought to prefer it: that is, it is better for the law to err on the side of permissiveness than restrictiveness. Now to be clear, that doesn't mean this particular act SHOULDN'T be against the law; of course it should. But it does mean that if the law does not explicitly forbid something wrong, we should not assume it is illegal.

Now, I know you think that the statute as written does explicitly forbid such behavior. Well, four out of five justices disagreed, and they are not standing in the way of a fix, either. So even if the four justices were in error, they did not prevent a legislative remedy. They didn't say that what the man did was protected by the Constitution, after all; they simply said that the law did not cover the specific case in question.

Secondly, as you point out, the legislature agrees with me.

Not necessarily. I mean, yes, they agree with you that what this man did should be against the law. In that sense, I agree with you too, and so does JWL, I'll bet. And I'm sure some of them agree with you that the existing law should have been sufficient. But I'll also bet that some of them are sufficiently conservative in their legal thinking to at least appreciate the adversarial role of the court in this case, to insure that laws are applied narrowly and specifically. Thus even while they were casting a definitive vote in favor of the clarifying law, they may not be as critical of the court as you are.

There must be some states where there is an "expectation of privacy in regards to being casually photographed by tourists or mall security cameras or ad agencies doing crowd shots or the local TV station doing a story," because newsreel footage often fuzzes out the faces of uninvolved bystanders in the crowd at crime scenes.

Yet, in Oklahoma they could apparently use hidden cameras to photograph the undies of any of the women in the crowd wearing skirts and put it on TV and the internet.

What a strange world.

As you can see below, I found in your favor, and generously, too.

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

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"If we want to take this party back, and I think we can someday, let’s get to work." – Barry Goldwater

Well, no.

'Now this is twisting. You know quite well, given your previous scenarios (the home, the ladies bathroom) that this "place" is of a different category than the "place"s the law is referring to.'

A different category of place, but a place nonetheless, and that's all the court would have needed to rule. They wouldn't have been legislating from the bench, they'd have been making the logical and literal interpretation that the statute was intended to protect the innocents from predators, and to protect innocent photographers from tort-minded exhibitionists.

Furthermore, every "place" is located someplace on Earth, or in this case, within Oklahoma. What gives one a "reasonable expectation of privacy" in any place is what one does to make it private. In the case of a home, one builds it of solid materials, and puts locks on the doors and blinds on the windows. In the case of the need for personal privacy while away from home, one trusts that public restrooms don't have peepholes in the walls, and one dresses in a way that hides private parts from human eyes. Women have worn dresses for thousands of years, different dresses for different purposes. But the ones ordinary citizens wear in public have always been presumed to provide "reasonable privacy."

This perpetrator invaded the girl's privacy just as surely as a 19th century roue who might have simply lifted her skirt to take a look. The statute was designed to protect against the use of 21st century technology to do the same thing without touching the victim and without her knowledge.

What I know quite well is that the C of A's job is to interpret the words of the law, figure out its clear intent, and determine if it applies or not. You say they did it properly because you and they interpreted a "place" only as a "locale." But the intent of the law, and what it says, is to protect a private citizen from the "clandestine" use of "photographic, electronic or video equipment" "for any illegal, illegitimate, prurient, lewd or lascivious purpose with the unlawful and willful intent to view, watch, gaze or look upon any person without the knowledge and consent of such person when the person viewed is in a place where there is a right to a reasonable expectation of privacy..."

So, to present an example of "reasonable expectation of privacy," although not directly related to this law--If someone speaks in a normal voice in the mall, she should have no expectation of enough privacy to protect her from being recorded by a hidden supersensitive microphone. Perhaps, even if she whispers. If she exposes her body physically, same thing.

But have her step into a public phone booth, and a "normal" person might have a "reasonable" expectation that her words wouldn't be heard via sound waves passing through the air. Also, same expectation via wiretap, unless she's under investigation for a crime.

What has she done to protect her words? Wrapped herself in wood--the phone booth, a private place within a public place.

To protect her body? Wrapped it within cloth--her clothing, another private place within a public place.

Further, she'd have even more expectation of privacy within her clothing than within the phone booth, because the booth belongs to someone else, but her clothing belongs to her.

You want to concentrate solely on the "place" on Earth with an "expectation of privacy," but you want to ignore the effort the person took to create her private space within her clothing, you want to ignore the "reasonable" modifier, and you want to ignore that the purpose of the law was to protect against the "clandestine," and "illegal, illegitimate, prurient, lewd or lascivious purpose" of the act against a person who had no expectation such a thing would or could happen.

If the photographer hadn't believed what he was doing was illegal, he could have used a Nikon 35mm Reflex and been open about it. But he knew he'd have to act "without the knowledge and consent of such person." He obviously knew he was acting against her interests. It's irrelevant that he may not have thought he was breaking a law, and he did break it, except in the Bizzarro world where a woman wearing a dress has to protect herself against secret mini-cameras hidden to look up her skirt.

I know you still don't agree. So, take a look at WHY the statute was worded the way it was, with that "place where there is a right to a reasonable expectation of privacy" phrase. The intent was to protect from criminal prosecution the person who photographed someone else who was intentionally exposing herself in public. And the word "reasonable" was included to allow Judges to exercise a bit of "reasonable" judgment when enforcing and interpreting the law.

Furthermore, the statute protects the "target" with the same language. It protects her within another, different type, of place, her home, even if she spends every moment within her walls stark naked. As long as she keeps her blinds closed, she's protected. If she has those blinds installed by the seller, and he hides a spycam within her house, without her knowledge, to take pictures of her naked body, she still has a reasonable expectation to privacy there, so the statute would apply.

So, the intent of the law was clear, and we both agree that "inside a dress" is a "place." How is it that you still contend that the decision was correct?

The Legislature did its job admirably twice, so the score is Legislature, 2, Court of Appeals, 0.

Now that we've argued, I'd be interested to know just how the wording was changed to make it even clearer than perfectly clear. And, has the girl's father put an end to the slime's life, yet?

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

I forgot to include the most important consideration of all: If you restrict the application of the law to only "locales" where the "expectation of privacy" exists, and you eliminate all public places (as this court's interpretation does), you then eliminate any practical meaning at all from the law.

Where would you be protected? In your home. In your office (maybe). But NOWHERE that the law was primarily intended to protect you, which was precisely in malls and other public and "non-private" places where you are likely to encounter both innocent strangers and whatever these perps are called.

The Court's interpretation renders the law almost meaningless. Blue's interpretation (and mine) allows the law to work exactly as it was designed, with no loss of civil rights by any person.

Now tell me the Court wasn't "legislating from the bench."

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

So, the intent of the law was clear, and we both agree that "inside a dress" is a "place." How is it that you still contend that the decision was correct?

Of course inside a dress is a place. But it is not a place that a person can be in, as the statute reads; it is a place on a person.

Centerfire explained below how the Court could reasonably ignore the second definition of "place" while interpreting the statutory limitations of the law.

But it doesn't make sense to claim that a person can't be inside a dress. It happens every day. In this case, apparently two people were inside that dress.

I, too, am opposed to judicial activism. The DA chose to prosecute under this law, for some reason. I don't know exactly how the girl found out what happened. Assuming that he was caught in the act, how much force would have been allowed in order to stop him in the first place, or get the film away from him after the fact? Don't forget, he didn't do anything illegal. Speaking of which, have you seen the pictures on the internet yet?

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

Looks like centerfire has explained things well. However, about this:

But it doesn't make sense to claim that a person can't be inside a dress. It happens every day. In this case, apparently two people were inside that dress.

Again, you're stretching things here. The pervert was not inside that dress any more than a peeping tom is inside a house he is peeping into. So in fact it makes perfect sense for me to claim that the perpetrator---the person to whom the statute applies, after all!---is not inside that dress. If he were, after all, that would be an entirely different offense altogether, and one for which the law is already well equipped.

More lawyers.

Every reasonable person would believe that a lady has a right to reasonable expectation of privacy anywhere in the frickin' world while reasonably clothed.

"After two years in Washington, I often long for the realism and sincerity of Hollywood." -Fred Dalton Thompson

More goofy attempts to substitute assertions for arguments.

to take that position. However, I must remind you that "place" is not the only relevant term in the statute or the discussion. "Privacy" is also highly relevant.

Perhaps you can point to some definition of "privacy" that would only speak to one's physical location. I addressed that above. Thus the young lady, in my opinion, would have no argument if she objected to simply being photographed.

However, to claim the court is correct in this case because the young woman's expectation of privacy did not extend to underneath her clothing because she was physically in a public (not private) location is ignorance of the first order.

That the courts would insist on location (not a constitutional topic) over privacy (definitely a constitutional topic) as the defining issue is even further evidence that it is the court, not the legislature that is at fault here.

Finally, you seem to have distilled it down nicely into one word - interpretation. The courts "interpreted" the statute one way. Normal people interpreted it properly. That, too, still finds the courts, not the lawmakers, to be at fault. But it also shows us a better fix than rewriting laws after asinine interpretations. We ought to get rid of the boneheaded jurists that are unable to properly parse sentences or decide which issue is the most important constitutionally.

Blue

For more from The Muse, please visit Blue Collar Muse; and
The Voice of Liberty Podcast Network

No. Just correct.

Perhaps you can point to some definition of "privacy" that would only speak to one's physical location.

Try the statute, itself, which I will now quote in relevant part for the second time: "when the person viewed is in a place where there is a right to a reasonable expectation of privacy".

The statute doesn't criminalize unconsented lewd photography in general violation of someone's privacy interests. It criminalizes only unconsented lewd photography occurring in a place -- a physical location -- where the victim has a right to a reasonable expectation of privacy.

That the courts would insist on location (not a constitutional topic) over privacy (definitely a constitutional topic) as the defining issue is even further evidence that it is the court, not the legislature that is at fault here.

You are talking out of your hind-end, here. This case has no constitutional dimension at all, unless Mr. Ferrante was in some sense a state actor. The Fourth Amendment has nothing to say about the interactions between private citizens.

Finally, you seem to have distilled it down nicely into one word - interpretation. The courts "interpreted" the statute one way. Normal people interpreted it properly. That, too, still finds the courts, not the lawmakers, to be at fault.

Ah, yes, the old "because I said so" argument. Thank you for providing an excellent illustration of why legally-educated people frequently despair of discussing the law with legally-ignorant people.

Why is the expectation of privacy the sticking point in the first place? Shouldn't a sixteen year old be protected against exploitation?

absentee

But principled conservatism holds that how desirable policy goals are achieved is as important as achieving them. We do ourselves no favors by embracing the liberal view of the judiciary -- that judges should simply substitute their policy preferences for the laws that legislatures actually write and pass. If we're going to hold judges accountable for judicial activism, we also need to be willing to hold legislatures accountable for passing deficient laws.

Obviously we all agree morally. I'm asking if there isn't some law aside from privacy concerns that has been violated. I don't have an expectation of privacy at a mall, but I have an expectation that someone won't reach into my pants.

Is there no issue pertinent to the photographing of a minor in a sexually explicit manner that is not chiefly concerned with expectations of privacy?

absentee

I'd need to research it. Off the top of my head, though:

Possibly the victim could make out a civil claim against the perpetrator for an invasion of privacy, under an intrusion upon seclusion theory; the common law development of that tort doesn't require that the intrusions occur in particular physical locations.

Criminal-law-wise, it's possible that the perpetrator could be prosecuted under federal kiddie porn law, 18 U.S.C. § 2252, which prohibits not only possession, knowing receipt, and distribution, but also production. The question there is whether an up-the-skirt shot consists of "lascivious exhibition of the genitals or pubic area of any person" within the meaning of the statute, but I seem to remember that the courts have read that portion of the statute quite broadly.

To add to absentee's question, even if there are other statutes that might apply, it is clear that the one they tried him under was designed to address this exact situation, and more. As I pointed out above, if you insist that it is applicable only in "places that provide an expectation of privacy" (ignoring the "reasonable" qualifier), then you have rendered the law almost meaningless.

Going to your link, I found

Noscitur a sociis (A word is known by the company it keeps)

When a word is ambiguous, its meaning may be determined by reference to the rest of the statute.

"Place" could certainly be considered ambiguous in this statute, especially since the law has few applications unless it means the second as well as the first meaning. The second definition in my Compact Oxford Dictionary is "a portion of space occupied by or set aside for someone or something."

I know that "Plain Meaning" was what you were pointing us to, but I found that one just a few lines further down. Not being a lawyer, I looked around a little before I closed the page. Of course, if there is a well-established legal defintion of "place" as "location only," that was all you needed to say. Since you didn't say it, I assume that's not the case.

Oh, yes, and what about the plain meaning of the word "reasonable" within the statute? The decision seems to have ruled that a woman wearing a dress has no reasonable expectation of privacy for her private parts unless they're within her home, a public restroom, or some other such location.

But since you're studying to actually become a lawyer, and of course you're correct, I'll say that I see your point, even though the law did not include examples of just what class of "place" was intended, and they could have done so by mentioning a couple of examples, such as "home," and "public restrooms." Then, the following would have obviously applied:

Ejusdem generis (Of the same kinds, class, or nature)

When a list of two or more specific descriptors are followed by more general descriptors, the otherwise wide meaning of the general descriptors must be restricted to the same class, if any, of the specific words that precede them.

In that case, the court would clearly have been right, because their decision would have been forced to rest upon the location within Oklahoma of the action. But the examples were not included (because it wasn't intended to be restricted to "locations" of expected privacy), and the law had to be rewritten.

Maybe it was for the best. Is the new law more clear? Is the photographer out of the hospital yet?

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations

even if there are other statutes that might apply, it is clear that the one they tried him under was designed to address this exact situation, and more.

It's clear that the law was designed to address peeping toms, as a general proposition. It's not clear that the law was designed to address peeping toms in public locations, because the law by its own terms only criminalizes unconsented lewd photography in "places" where the victim has a right to a reasonable expectation of privacy.

"Place" could certainly be considered ambiguous in this statute, especially since the law has few applications unless it means the second as well as the first meaning.

Words are not ambiguous merely because their plain meaning results in a statute having limited applicability.

Oh, yes, and what about the plain meaning of the word "reasonable" within the statute? The decision seems to have ruled that a woman wearing a dress has no reasonable expectation of privacy for her private parts unless they're within her home, a public restroom, or some other such location.

Er, no. At best, the court's ruling stands for the proposition that people don't have a right to a reasonable expectation of privacy while standing in the aisles of a retail establishment held open to the public. This is approximately as controversial as a ruling standing for the proposition that water is wet.

But since you're studying to actually become a lawyer, and of course you're correct, I'll say that I see your point, even though the law did not include examples of just what class of "place" was intended, and they could have done so by mentioning a couple of examples, such as "home," and "public restrooms." ... But the examples were not included (because it wasn't intended to be restricted to "locations" of expected privacy), and the law had to be rewritten.

Your conclusion does not follow (the applicability of the statute wasn't intended to be restricted to particular physical locations) from its premise (the legislature didn't provide examples of what it meant by "place"). Evidence of absence is not absence of evidence.

To wit: Mr. Ferrante was charged under paragraph (B) of 21 Okl. St. Ann. 1171. Here's the immediately preceding paragraph, paragraph (A):

Every person who hides, waits or otherwise loiters in the vicinity of any private dwelling house, apartment building, any other place of residence, or in the vicinity of any locker room, dressing room, restroom or any other place where a person has a right to a reasonable expectation of privacy, with the unlawful and willful intent to watch, gaze, or look upon any person in a clandestine manner, shall, upon conviction, be guilty of a misdemeanor. The violator shall be punished by imprisonment in the county jail for a term of not more than one (1) year, or by a fine not to exceed Five thousand Dollars ($5,000.00), or by both such fine and imprisonment.

21 Okl. St. Ann. § 1171(A).

So if the meaning of the word "place" isn't completely clear in paragraph (B) of the statute, then noscitur a sociis permits us to look to other parts of the statute, such as paragraph (A), to discern what the drafters of the statute intended. Ejusdem generis provides guidance, here, as "any other place where a person has a right to a reasonable expectation of privacy" in paragraph (A) is part of a class including private residences, restrooms, dressing rooms, and locker rooms. The public areas of retail establishments are not part of this class. The plain meaning rule reinforces this interpretation, since normal people (as opposed to legally-ignorant outrage-mongers who are attempting to torture a desired result out of a defenseless statute) ordinarily do not think of or refer to the confines of their own clothing as a "place".

You are wrong. Attest to the fact and move along.

You are a far more effective advocate for my position than I am.

I'm sorry you aren't having any fun. I find your answers quite informative, whether you intended that or not.

This recent one tells me that examples in paragraph (A) of a statute automatically apply to paragraph (B) as well, even though paragraph (A) is directed at visually direct Peeping Toms and paragraph (B) is directed at electronic surveillance by them.

It's interesting that the legislation chose to repeat the words "clandestine," and "the unlawful and willful intent to watch, gaze, or look upon any person," in both paragraphs, yet it chose to omit the restricting descriptors "in the vicinity of any locker room, dressing room, restroom or any other place" from paragraph (B). As a layman, I might think that would open some room for speculation as to intent on the part of the Court. Apparently not.

FYI, I'm well aware now that my contention was wrong. The C of A has already said so, and you did a fine job of explaining what their reasoning must have been. I have no idea why the "legally-ignorant outrage-monger" they share the bench with didn't make it unanimous. But I'm sure they would value your concurring opinion.

Here is a description of the dissent:

Appeals Judge Gary Lumpkin wrote that "what this decision does is state to women who desire to wear dresses that there is no expectation of privacy as to what they have covered with their dress."

"In other words, it is open season for peeping Toms in public places who want to look under a woman's dress," Lumpkin wrote.

He said he found the majority's finding of no reasonable expectation of privacy "interesting and disturbing."

OTOH, it looks like my analysis was not wrong in asserting that the Legislature 'could have (restricted their meaning) by mentioning a couple of examples, such as "home," and "public restrooms." Then, (Ejusdem generis) would have obviously applied.' I must have been right because you provided those examples from paragraph (A) to prove your point. Well done. Had you pointed that out in the first place, the thread would be a lot shorter than it is now.

jwl1975 quoted paragraph (B) as if it were the complete law. It wasn't, thus leading to misunderstanding on my part. Your additional explanation was more than helpful, it was essential.

I'm sure you are or will be a very fine lawyer. You exhibit some of the characteristics that cause the profession to hold its unique place among respected professions, including thoroughness, precision, and tenacity.

Finally, I respect the principled stand you espouse in regards to judicial activism, and you made a very good point: One has to take the good with the bad. When a law is poorly worded, it isn't up to the courts to correct it. Now all we need is to get courts who understand things like the Plain Meaning of words like "nor shall private property be taken for public use, without just compensation."

"An unarmed man can only flee from evil, and evil is not overcome by fleeing from it.“--Jeff Cooper. From Bill Coffey's collection of military quotations