The University of Pennsylvania is prosecuting a student for posting on his university website photos of two Penn students appearing to have sex in their dorm window. The student now faces charges of sexual harassment and also stands accused of violating Penn's student code of conduct as well as its policy on acceptable use of electronic resources. The Daily Pennsylvanian has reprinted the offending photo, which can be seen in all its lewd glory here.

The student's defense is that because the subjects of his photographic endeavor were exposing themselves publicly, he could not have been harassing them or otherwise violating their privacy by taking their picture and posting it. The University disagrees, however, and wants the student to admit wrongdoing. The University's proposed sanction--to which the accused student has yet to respond--also involves placing the student on probation until graduation, requiring him to write an essay "discussing what was wrong with the conduct you were involved in," and writing a letter of apology. The student's transcript would not carry any record of the sanction, but prospective employers could readily uncover it.

The DP spoke with law professor Edwin Baker, a free speech specialist who sees the current case as a no-brainer:

Edwin Baker, a Law professor at the University specializing in issues of free speech, said that he believes that what occurred was a public event and the photographer was therefore not out of line in taking the pictures.

"When you're in a space that's publicly viewable, you generally have no legitimate expectation of privacy," he said.

"I believe the dominant view is that it would be viewed as protected photography and the distribution is permissible."

Baker did add, though, that because the University is a private institution, it does not have to adhere to the First Amendment.

Still, he said, the University's own Guidelines on Open Expression -- which outline the school's policies -- have been fairly consistent with the First Amendment.

Penn has been pretty good about not prosecuting students for protected if offensive expression ever since the Water Buffalo Incident of 1993 rendered the university a national laughingstock. That incident led to the repeal of Penn's speech code, and to a decade of commitment to ensuring that speech at Penn was as free as it would be in any public venue. But institutional memories don't last forever, and someone somewhere seems to have forgotten--or, perhaps, never to have learned--the lessons of the Water Buffalo episode. If Penn is not careful, it can easily erode its reputation once again.

This is fucking idiotic. How anything could think taking pictures of public behavior is harassment is just completely beyond me. If ANYONE can be prosecuted (and I don't really think anyone should be), it's the students being photographed, presumably for indecent exposure or "lewd and lascivious conduct."

In the comments to this article, a resident of a nearby building notes that "these people had sex in the afternoon on 3 consecutive days for all to see..friday & saturday at 4pm and sunday at 6pm." By all accounts, many students witnessed these displays, and several took photos. But as the university sees it, the photographers "created an intimidating living environment for [the copulating female]" and should now write apologetic letters documenting what was wrong with their conduct! Meanwile, the couple involved is seemingly getting away scot-free, despite arguably violating state public indecency laws (it's noteworthy that Penn's code of student conduct requires compliance with all federal, state, and local laws).

To the high-rise maiden in distress, I say: if you and your boyfriend indulge your exhibitionistic fantasies in your dorm window in broad daylight, you can't accuse witnesses/photographers of sexually harassing you, creating an intimidating environment for you, and causing you distress. What happened here is your own fault. If you don't want your naked ass on the front page of the campus paper again, I suggest you close the blinds next time.

Agreed, the whole situation is ridiculous and no legal or institutional action should be taken.

But in reality, the law is messier than anyone is admitting when it comes to *photographing* or *videotaping* nude people without their consent.

The law's actually messy about *any* non-consensual photography or videotaping. Wouldn't you be freaked out if you found someone hanging outside your house snapping photos of you? Are we legally allowed to take pictures of people in their houses?

Then there's the question of "reasonable expectation of privacy." Recent court cases have described a "public privacy," for example, to defend women in public from having up-skirt photos taken of them. The Penn students, of course, are pushing the boundaries of public and private (and that's probably part of the sexiness of the idea originally).

Any lawyers out there on the legality of taking photos of people in their homes through their windows? It seems that US law is unclear on whether the fact that one can *see* people through their window restricts their reasonable expectation of privacy not to be photographed without consent.

Certain public displays of nudity -- the Suicide Girls' recent burlesque shows, for example -- cannot legally be photographed by viewers. Here again we have a distinction between being able to *see* something and being allowed to *photograph* something. The *Girls Gone Wild* people have ended up in court over the entire issue of consent: can an intoxicated woman give consent to be videotaped flashing her breasts in public? Is consent necessary if the flashing occurs in public (i.e., outdoors, in a bar)?

See http://www.epic.org/privacy/gender/ for more on such issues. I'm just asking questions. As I wrote before, it's clear that while all the parties directly involved in the Penn case are idiots (and should be asked -- not forced -- to find a new school in which to act like morons), being an idiot is not legally actionable.

As Jack Rose says, the actual law regarding "privacy" in these matters is considerably more complicated than the way it's presented here.

I, too, was thinking that the privacy issue is more complex.

I was also thinking of an old Koren cartoon with the caption, "Some of us long for the days of the old taboos."

Well, yes, it's conceivable that the students engaging in PDA might have a civil cause of action against the photographer and anyone who published, more likely for breach of copyright but also possibly invasion of privacy. But how that would give the university, a third party, standing prosecute any of those involved is still beyond me.