Gilmer v. Mississippi: will US Supreme Court hear case of criminalizing unauthorized videotaping of a person through a window visible to public view in her home?

January 8, 2008

News: According to SCOTUS blog, the U.S. Supreme Court is considering whether to review a case involving a criminal law that prohibited “video voyeurism.” Basically, a guy (an elected constable) sat in his car in the parking lot and videotaped a woman (fully clothed) through her balcony window for 1 hour or so, on at least 5 different occasions. Anyone passing by her window could see her.

As described by the Mississippi Supreme Court, the facts of the case were as follows:

“Eddie Gilmer was an elected constable in Madison County at the time of his alleged criminal behavior. He served warrants in Madison County, including at the Pear Orchard Apartments in Ridgeland, Mississippi, where Debra Clayton occupied a second-floor apartment. In March 2003, Clayton noticed that Gilmer would arrive at the Pear Orchard Apartments in his official vehicle marked “Madison County Constable, District Number 3, Eddie Gilmer” around 9:00 p.m. and park his car in a space in the apartment complex parking lot with his vehicle facing Clayton’s apartment about 87 feet from her balcony. Gilmer would stay in his parked car for an hour or an hour and a half before driving away.”Clayton contacted the police about Gilmer’s suspicious behavior. Consequently,police officers conducted five separate surveillance operations. Officers captured Gilmer on tape, recording Clayton with a hand-held video camera while she was sitting inside her apartment in front of her balcony door, which was open about eighteen inches. The evidence demonstrated that, while filming, Gilmer often zoomed in on Clayton’s chest and crotch area. Eddie Gilmer was convicted of 5 counts of violating Mississippi’s video voyeurism statute (Miss. Code Ann. 97-29-2006) and was sentenced to 15 years in prison.

Analysis: I have not researched the law in this area, so these are only my uninformed initial impression. The due process challenge raised by Gilmer is that the statute as interpreted by the Mississippi Supreme Court is vague–i.e., it does not adequately provide fair warning on what is proscribed. This is a basic constitutional challenge studied in law school.

Gilmer also raises a First Amendment challenge to the statute. This to me is the most interesting. Gilmer argues that the criminal statute is overbroad because it can criminalize the conduct of “anyone legitimately using a video camera.” Implicit in the argument, it seems to me, is the notion that people have a First Amendment right to videotape what is open in plain view to the public. I will think about the merits of that position some more.