August 17, 2008
"Hiding in the bushes" might have been a sign this was not a good thing to do

It's clear that this guy is a creep. It's somewhat less clear that he's a criminal.

From the perspective of park rangers, Phu V. Nguyen was obviously violating the state's improper photography statute when he was arrested at Hippie Hollow nudist beach in Austin last weekend.

The Harris County man hid himself behind thick vegetation, was photographing two topless women with a long telephoto lens and ran when they spotted him, rangers said.

But some criminal defense lawyers say the case raises complex legal questions because the women were at a public nudist beach where no laws would prohibit photographing those clothed or wearing swimsuits.

"The trick with these laws is balancing First Amendment rights versus privacy rights," said Kathy Bergin, who teaches constitutional law at South Texas College of Law. "Courts are studying where that line is."

Kyle Lowe, Nguyen's lawyer, said his client likely isn't interested in testing the law's constitutionality and he could advise him to work out a plea-bargain deal with the Travis County District Attorney's office.


Patrick McCann, a Houston criminal defense lawyer and recent past president of the Harris County Criminal Lawyers Association, said "The issue becomes whether you can have an expectation of privacy when you are swimming nude at a public place."

Bergin said courts are wrestling with such issues in part because cameras erected by employers and governments, cell phones and the Internet have made people aware that they could be filmed in public places.

"The concept of privacy is really diminishing. Technology is making privacy harder to come by," she said. "The courts are going to have to stipulate where the lines are going to be drawn between First Amendment concerns and privacy interests."

I'm glad that the guy is likely to take a plea rather than pursue this case to whatever legal end it might reach. I feel pretty comfortable saying that his behavior falls within the scope of the law, and that the intent of the law is within Constitutional bounds, and I'd just as soon leave it that way. But it is a good reminder that the concept of an "expectation of privacy" ain't what it used to be. When I was a kid, I knew I had to watch my step in public because a lot of people knew my family and by extension me, and if they saw me doing something stupid, it would eventually filter back to my parents. Now that I'm an adult, there are entirely different reasons for the same thing. I liked the old way better, but there's no going back.

Posted by Charles Kuffner on August 17, 2008 to Legal matters

I would like to see the statute challenged. How can there be an expectation of privacy outdoors in the wide-open during the day?

Posted by: Justin on August 17, 2008 11:02 AM

What bothers me most is the number of prosecutors who stand behind these convictions. Chuck Rosenthal in particular. In one case despite the person having been cleared by DNA and released from prison, Chuck Rosenthal very arrogantly maintained it didn't matter. He "knew" the person was guilty. Despite the DNA stating he was innocent.

That pretty much sums up the attitude of quite a few prosecutors in Texas and around the country.

They have added an 11th Commandment. "Thou shalt not question the district attorney." Quite a few have, by the way, and regretted it.

Posted by: Baby Snooks on August 17, 2008 11:54 AM

Very well written article. While I agree that he is a creep, I still think challenging the law would help define privacy rights better.

FYI, I posted your article on Topix in the Privacy section. You can see your post at

It also is on the front page of the section, but that changes too often to post the link to it.

Posted by: Anonymous Surfing on August 17, 2008 2:04 PM
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