Other people are unwilling spectators to our offensive expression and conduct all the time. I can stand on the steps of the Supreme Court and wave gory, graphic photos of dismembered fetuses at passing schoolchildren. I can wear a jacket that says "Fuck the draft" in a courthouse. I can put cartoons of Mohammed on t-shirts and wear them on the street. Lots of people would find these things offensive, but we don't allow their religious fervor, patriotic sentiment, or just plain weak stomachs to be grounds for censoring the public sphere. Why is sex special? To use legalistic language: unlike decibel limits, this is not a content-neutral restriction. (Or is it? Is a dimension of expression, not content of expression? Can I really express myself sexually if I am not permitted to act on my feelings? In the same way that no other words really convey the sentiment "Fuck the draft," does any other mode of expression really get across what a physical gesture like a kiss does?) . . .
It just seems odd to say that we can burn flags in public (something many people find so offensive that it provokes violence) but we can't have sex in the bushes at the park because someone might get the vapors.
With a few reservations, I think that Amber is right: public sex and nudity should not be banned merely because people find it offensive, any more than flag burning should be forbidden for the same reason. The latter, in my view, is actually considerably more offensive than public nudity. I feel the same way about people who wear hammer and sickle T-shirts or publicly flaunt other "totalitarian chic." Others, of course, differ but none of us should have the right to use government power to suppress what we deem offensive.
Two reservations (which I'm not sure Amber would disagree with):
1. First Amendment issues.
Not all public sex and nudity is "expressive" in nature; indeed, in most cases it probably isn't. Only the kind that is clearly intended to express some political or other viewpoint should be protected by the First Amendment. Nonexpressive public sex and nudity should also be legalized, but local governments do not have a constitutional obligation to adopt that policy.
2. Dangers to the safety of third parties.
In some cases, public sex and nudity could pose a danger to the safety of third parties (i.e. - people other than those participating in the, ahem, activities in question). For example, nude people standing by the side of a highway could distract drivers and cause car crashes. Regulation in some such cases is surely justified. However, nudity and sex should not be targeted for regulation any more than other activities that pose similar risks. In the highway case, all distracting behavior by the side of the road should be banned, not merely that which the majority of the public finds offensive. And certainly such dangers cannot justify a categorical ban on public sex and nudity.
On the other hand, I don't think that bans on public sex or nudity can be justified by the need to protect children or by the need to prevent the spread of STDs, two commonly proffered rationales. Nazi demostrations, flag burning, and so on are at least as disturbing to sensitive children as public nudity is. Indeed, I'm far from certain that the latter harms children at all. Various degrees of public nudity are much more common in Europe than in the US, and as far as I know European children have not suffered as a result. Regarding the spread of STDs, it should be up to participants in the sex act to decide whether they want to take the risk. Moreover, the danger of STDs is mostly a function of the absence of protection, not the location of the sex act.
Update: Much of the negative reaction to this post (see, e.g., here), is driven by the "yuck" factor. People find public nudity and sex deeply distasteful and so want it banned. I share the view that much public sex and nudity is "yucky" but disagree that that justifies banning it. Yuckiness unsupported by proof of actual harm may be enough to justify a social norm against an activity, but is not enough to justify throwing people in jail. Moreover, to put it mildly, there is a long history of laws justified by "yuck factor" reasoning that we now recognize were unjustified, including laws against gay sex, laws against interracial marriage, and even laws against women wearing "male" clothing. We should be very skeptical of criminal prohibitions that can be defended only by appealing to yuckiness. Finally, as Amber Taylor noted in her post (cited above), what is considered "yucky" varies enormously by culture. We rightly condemn Saudi laws that forbid women to appear in public without veils, yet Saudi traditionalists presumably consider unveiled women just as "yucky" as we consider public nudity.This leads to a broader point about why we should care about this issue. It is not because public sex and nudity are themselves tremendously important but because the laws banning them are a particularly blatant example of the desire to ban activities merely because we find them offensive and distasteful. The impulse is a powerful one. But if we can expose it and learn to control it, we will have a much freer society.
Update #2: I think many people have misunderstood this post as arguing that all or most public sex and nudity is protected First Amendment speech. I tried to make it clear in the original post that only nudity (and less likely) sex "that is clearly intended to express some political or other viewpoint should be protected by the First Amendment." I also said that most public sex and nudity is "nonexpressive" and therefore constitutionally unprotected. But let me make the point even clearer: I am making a moral argument, not a legal one. While only a narrow subset of public nudity and sex should be constitutionally protected by the courts, I contend that laws banning public nudity and sex should be abolished for moral and policy reasons. They should be retained only in those few cases where there are clear harms to third parties that go beyond offensiveness or "yuck factor" considerations.
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