Scott Wiener Bathroom Photo: Law Prof Calls Blogger's Account "Public Confession"

Categories: Law & Order
Luke Thomas, Fog City Journal
Perhaps he said too much...
Earlier today we reported on gay activist and blogger Michael Petrelis' arrest stemming from an incident in which he photographed Supervisor Scott Wiener in a City Hall men's room, then posted the picture on his blog.

The arrest was referred to on Petrelis' site as "an act of heavy-handed political retribution." That's one way of looking at it. Another, says Professor Mort Cohen, is that you shouldn't attempt to snap photos of people urinating and then admit to it on the internet.

Petrelis is being charged with violating Section 647(j) of the penal code, which deals with spying on or recording someone in an "area in which the occupant has a reasonable expectation of privacy." Cohen says a men's room counts here -- but not in every circumstance. And if Petrelis hadn't crowed about his accomplishment -- in writing -- the Golden Gate University law prof says it'd be much harder to charge him with a crime.

Petrelis has clashed with Wiener in the past, and objected to the supervisor's recent ordinance banning most public nudity. In an Oct. 27 blog post, he admitted to attempting to photograph the supervisor in mid-piss:

My new camera was ready for use in the second floor men's room at City Hall on Friday afternoon when I walked in. Scott Wiener was standing at the urinal and had just started to tinkle as I entered and the camera took 4-6 seconds to focus, enough time for him to put away his wiener and zipper up.

The only photo I caught was of him grabbing his toothbrush from the wash basin. He sighed heavily and with exasperation having to not only have to interact with me, but in a restroom and with a camera going off. I made small talk the beautiful day and he left in a huff.

"If a picture is taken of me just brushing my teeth, I don't have any expectation of privacy if I'm a public figure," says Cohen. "But if he's accused of trying to take a picture of [Wiener] urinating? I'd say that's a crime. Attempt is a crime."

In his blog post, Petrelis appears to have said far too much, admitting he'd have snapped a photo of Wiener at the urinal if only his camera wasn't so slow.

"An attempt is when an individual with intent to complete an act takes some action toward the completion of that act -- and this guy [Petrelis] has said exactly that. He's confessed in public," continues Cohen. "There is at least a colorable claim of interference with the privacy which is reasonably expected. So I think there may be something to the charge."

Petrelis has written that his first court appearance is scheduled for Dec. 5.

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As a passionate First Amendment advocate, having been involved in a few First Amendment cases myself, I'm always interested in whatever legal opinions are proffered, including this article on the arrest of Michael Petrelis. But the fundamental premise it relies on is factually inaccurate, if not just a little ironic.

On his site, Petrelis very clearly prefaces excerpts from an article I wrote for The New Civil Rights Movement as being exactly that. In fact, the very quote referenced in this article, book-ended as it should be by quotation marks, links to the article I wrote, not to Petrelis' site. Whether or not Petrelis views Wiener's actions as "an act of heavy-handed political retribution" might be inferred by virtue of his curatorial decision in excerpting my article, but he didn't state it, I did. 

It just seems to me that an article that centers almost entirely on what Petrelis said on his blog -- even wondering aloud "did he perhaps say too much," in the caption -- should perhaps be a little more careful in attributing sentiments to him he hasn't expressed, or putting words in his mouth he neither said, nor wrote. 

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