Apropos my suggestion that even libertarians might allow some regulation of offensive behavior in government-run spaces, simply because it's offensive, what do people think about laws banning public urination? As best I can tell, urine is usually mostly sterile. Sometimes it's not, but I suspect that on balance public urination is probably no more of a public health threat than, say, sneezing without covering your mouth. (Assume that in either case you're not urinating or sneezing directly on someone else.) It's banned, I think, largely because it smells yucky, and (less importantly) because it's perceived as yucky even setting aside its smell.
If I'm right on the public health point, does it follow that laws against public urination are improper?
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- Unwanted Touching, Indecent Exposure, and Sexual Arousal:
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- Libertarianism and the Regulation of Public Space:...
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- Yuck, Public Spaces, and Urine:
- Involuntary Sexual Arousal and Touching:...
- Should Public Sex and Nudity Be Legalized II - More Yakking about Yuck.
- Public Nudity and Public Sex, Beyond the Yuck:
- Should Public Sex and Nudity be Legalized?
(Assuming your assertion about the health thing is accurate.)
As to the objective impact, I wonder about your facts. Sure maybe one guy urinating in one spot might be ok and not cause a health problem. But I think that there would be (have been) true public health hazards should one spot become used by many. As well, defecation is associated with urination and clearly there is an undeniable health issue.
It's funny but I have never felt as if my liberty was unduly abridged by custom and law which prohibit public urination. Of course I may be an eccentric.
"Vote for X. He would abolish laws prohibiting sexual predators from masterbating in front of your 4 year old daughter!"
Only an intellectual could be so stupid.
No, because you're wrong on the "governments shouldn't ban yuckiness" point.
There are cases where we don't think the government should ban yuckiness. But these are just specific cases and don't generalize to *all* yuckiness. They include:
-- when the yuckiness is associated with speech. In this case, you might be able to argue that someone could publically urinate as part of a politicial protest, but not just because they needed to take a piss. You could also require that anyone who publically urinates as part of a political protest do it in such a way that there's no smell remaining once the protest is over (for instance, urinate into a bucket rather than on the ground).
-- when banning the yucky act may make it hard for people to have a normal life, or is one of a group of bans that cumulatively have this effect. Thus, we shouldn't prevent same-sex couples from holding hands in public even though some find it yucky. Of course, this is a judgment call; we've decided, as a society, that not being allowed to hold hands falls into this category, but not being allowed to piss doesn't.
I live in Houston. Fortunately, I was not caught in the miles and miles of stopped traffic when everyone was trying to get out of town before Hurricane Rita last year. But if I had been, I'd have been in a bad way with respect to my bladder. After the hurricane, I purchased a folding portable camp toilet that accepts bags, the sanitary gelling powder to put in the bags, and a camp shower enclosure that is easy to set up. Voila, perfect sanitary privacy. I keep these things in my car trunk and I never have to worry about the lack of facilities again.
I fail to see how this distinction can be boiled down to a principle other than these are what I find personally not yucky and yucky.
Perhaps it's not the logic flowing from the premise, but the premise itself that is wrong.
Some commentators have tried to generalize this by pointing to degrees of yuckiness, but that encourages others to claim they find Nazi marches yuckier than urination, and it's still a false (tri)lemma.
You don't think freedom of speech is a principle?
The problem with purist libertarians is that they never get around to answering, what do you do if you're in a society that isn't libertarian? if we were colonizing a new planet or something and we all knew that it was going to be built on libertarian principles, then the vast majority of us who don't want our kids watching live porno action would create lots of restrictive covenants, etc., to take care of those problems. But our society wasn't built on libertarian assumptions and it doesn't work very well to shoehorn libertarian assumptions on to it now.
Maybe what you have to do, if you're libertarian, is to conceptualize America as a 'property' that was subdivided with implied mutually restrictive covenants against public sex, public urination, and so on. I actually think this wouldn't be far from the truth, but I don't know if it would satisfy most libertarians, who, unlike the contributors to the conspiracy, seem more interested in certain kinds of outcomes than they are about the logic that gets you there.
This sounds so good, until you live in a place where this is actually the situation, instead of the pipe dream of a middle class intellectual sitting in a comfortable office, surrounded by faculty and students who largely operate under middle class standards of decorum. It is pretty clear that in many parts of San Francisco, public urination is no longer a crime. I used to walk down from the Hastings Law Library to the McDonald's on Market Street for lunch.
Here we had the full implementation of libertarian ideals: a couple of blocks where the smell of public urination was so strong as to be not just unpleasant, but something to make you want to gag. Mentally ill people were pushing shopping carts with all their earthly possessions, muttering and sometimes yelling to themselves and invisible persons. They had not actually yet killed or raped anyone--which seems to be the minimum required in California before a mentally ill person is hospitalized against their will. (That's not what the law requires, but Welfare &Institutions sec. 5150 and 5250 were, at least when I left in 2001, not really enforced.) Here were old men living on the street, often with great fear in their eyes, filthy, unkempt, malnourished, begging for money with which to buy more alcohol or pot.
Large numbers die every year of pneumonia, freezing, or violence. A few were violent but petty criminals, engaging in muggings, robberies by intimidation, and occasionally, something more serious, such as the homeless man who was slitting the throats of others who were homeless. When arrested, he explained to police that he was a 2000 year old vampire, and they couldn't kill him. He had already been convicted of an incident in which he took out someone's eye with a bow and arrow, and was simply told to report to a half-way house for the mentally ill, but this being San Francisco, no one bothered to see if he had done so.
Where I lived in Sonoma County, there was a man who camped outdoors with his dog. He showed up at our church, and the pastor, who knew that I had a mentally ill brother, suspected that there was something wrong with this guy. (I think his name was John.) Within five minutes of talking to John, it was apparent that he was mentally ill, probably schizophrenic. He was ranting about a government conspiracy to take away his children--and he was so mentally ill that he did not even realize the papers that he was showing me. They were the papers that terminated his parental rights. Why?
The mother of the children had already gone into a mental hospital. John was raising a three year and a five year old. John's parental rights had been terminated because he was showing pornographic movies to his children, and then molesting them. Yeah, there might well have been some dark conspiracy, but John was so far gone that he handed me these papers and made no attempt to argue that they contained lies about his behavior.
So why was this guy outside? I suspect that the district attorney had decided that it would difficult to win a criminal case against John, on the testimony of two small children, and it would be traumatic for them to have to testify. This was probably a good call on the DA's part. But why was there no attempt to hospitalize him under W&I sec. 5250? Psychiatrists with whom I spoke told me something that the case law on W&I sec. 5150 and 5250 suggest: California judges, in large numbers, have bought into the notion that One Flew Over The Cuckoo's Nest was a documentary.
22 Professing themselves to be wise, they became fools"
When you tear down God and traditional Biblical morality, you end up arguing over whether or not laws against public urination are proper. What a fun world to live in?!
It's banned, I think, largely because it smells yucky, and (less importantly) because it's perceived as yucky even setting aside its smell.
Because it's "perceived" to be yucky? Let's try this, it's not perceived to be anything...It is revolting to pee in Public, (let's hold aside the hiding behind a tree while desperate).
How about this Taimyoboi, we'll ban whatever the majority of us think is revolting...Fair? Welcome to democracy. Now you have your choice set before you...Libertarian Utopia, where someone groping your daughter is just the same as patting on the back "Why are genitals so special?" And people having sex in the roadway or whatever are "speaking the truth to power."
OR we can go into the dreadfully repressed world of democracy where, I can get together with a majority of my community and declare X illegal precisely because it's yucky or revolting or whatever. I'd take that repressed democracy anyday.
Of course we have to do away with the whole idea of defecating in a sanitary way because that's found in Deuteronomy, and we can't have people imposing their religion on us! That would be really bad. What's next you might not be able to copulate in public! Horrors!
Is urine corrosive? Maybe it erodes buildings, sidewalks, and asphalt. Is urine bad for vegetation (I know it mostly helps, but too much nitrogen starts killing things)? Can public urination lead to health-endangering levels of ureic acid or whatever it is in urine?
I never said freedom of speech was not a principle. What I did suggest was that there was no principled distinction between the "all yuckiness" you refer to, and the specific ones of public urinating and gays holding hands.
I can always claim that anything I do that you find yucky is a type of expression or speech, and therefore entitled to constitutional protection.
U.Va. 1L,
My suspicion is he was referring to New Testament Biblical morality. The kind about hating the sin, not the sinner.
Does anyone think that this debate would even be happening if it weren't for homosexuals looking for a way to justify striking down the laws against having sex in public places? For several centuries, we seem to have operated without any significant debate that some things are not okay to do in public:
1. Urination.
2. Defecation.
3. Sex.
4. Masturbation.
5. Leaving dog feces on public property.
Now, suddenly, in the last few years, laws that have the general effect of making it tolerable to live in urban settings are up for debate--and for one reason: homosexuals have long argued that laws against sex in public places are unfair to them. I was startled to see that the Massachusetts Supreme Judicial Court, a couple of years before it imposed same-sex marriage, ruled that homosexuals having sex in the bushes behind a rest stop could not be prosecuted for that, because not having marriage available to them, they lacked the opportunity to have a stable home environment. (Yeah, if you aren't married, you can't take someone back to your apartment for sex after picking them up at a rest stop restroom.)
This isn't a one-time event. As I pointed out here, quoting from Newsday: And here, quoting the New York Times: Why is it that we have to change not just individual laws, but construct an entire new theory of what constitutes inappropriate public behavior, just to make homosexuals happy?
You were right about stoning obstinate sons though.
Joel B,
So would I. My posts were an attempt to criticize the other train of thought, not advocate for it.
Here.
Don't be so charitable. Libertarianism is a monstrous, demonic moral philosophy. Let me reiterate: it has become obvious in these series of posts that libertarianism has NO PROBLEM with a sexual predator publicly masterbating in front of a 4 year old girl.
You know from your experiences how twisted these theories are in practice. But to a well-rounded man, experience in these things shouldn't even be necessary. Unfortunatlely, it is painfully obvious that libertarians lack the most basic common sense, and probably the most basic morality.
But I take heart in the widespread fact that libertarians are rightly marginalized politically by the public, who could never succumb to such intellectual stupidity. Unlike libertarians, the people haven't lost their common sense or all morality yet.
If we just agree to make public urination a felony, we can imprison all the homeless! Whoops, can't do that. Have to find some other polite way to victimize them.
I think, given Sydney and Clayton's harsh statements about libertarianism, that we should be careful to avoid letting this thread degenerate...
...into a pissing contest.
Even if this wasn't just a thought experiment but instead a policy edict, surely you can conceive of a resolution to the libertarians' position that doesn't involve your conclusion? In other words, don't jump to a world of show-off pedophiles right off the bat (unless that is the world you'd like to jump to) -- maybe the problem is with responsibility for parents, or maybe the problem is an inherent problem of public space.
(Note: I've not studied libertarianism, and although I've got A, S, &U sitting around, I haven't had time to get more than 10 or so pages through the introduction yet.)
I'm reporting your to my Dark Lord!
Opps, gotta run. I've got some virgin sacrifices to perform to get Kelo overturned!
No real disagreement on 2,3, and 4, but apparently 1 and 5 are not universally condemned in western society. I would note, though, that when most people lived down on the farm and in smaller quarters, lack of privacy was more common and 2,3, and 4 were probably a good deal more common than we might think today.
Apparently, there is no problem with public urination in vast swathes of Latin America. It seems that a fairly common problem with recently immigrated Hispanic boys of elementary school age in my county is that they tend to take a leak on the closest wall during school recess, much to the chagrin of the supervising, usually female, teachers and their female classmates. The boys don't seem to mind as much . . . envy?
As to number 5, first, I refer you to France . . . with no further comment. Second, I would note that leash laws are a relatively recent innovation in most of the United States. Prior to their advent, dogs could roam at large and deposit feces where they chose. I think "several centuries" is an overstatement in this regard -- maybe 50 or 60 years in most of the US; leash laws became more common as the country became more urban.
Yup. In another comment thread, Steve in CA is making the libertarian argument for broadcasting hardcore porn. Of course, the same crowd sees nothing wrong with abolishing age of consent laws, with the ACLU arguing in Limon that there was a "due process liberty interest" that minors had in deciding whether to have sex with adults--in effect, setting up the argument that if an adult can persuade a child to have sex, hey! The Constitution protects that!
I think the core problem here is that libertarians suffer from the curse of the intellectual. Tey prefer beautifully constructed theories over the grubby reality of real human society.
Like Bertolt Brecht's famous remark about how the government might have to elect a new population, libertarians, if they ever got in charge, would soon discover that they needed to hire a new species to fulfill their fantasies. Unfortunately, because libertarians and liberals (with whom they share some strong similarities) control the federal bench and most law schools, they don't need to get elected! They just legislate from the bench.
Just because it's sterile before it exits the human body doesn't mean it stays that way. Urine attracts all kinds of, rodents, growths, etc that actually cause the health hazards. Anyone who hasn't cleaned the floor around their toilet in a few weeks knows how this works.
Ponder also why people wash their hands after using the bathroom.
It's a political philosophy. It's not about what we want people to do, but about what we don't want the government to do.
Most libertarians react to sex, nudity, urination just as their neighbors do. They just want to keep the categories straight between what should be handled by armed agents and what should be handled by private people.
Many of the conservative positions expressed here can't be separated in principle from those advocating Islamic Sharia law. Some draw the line at women exposing their ankles; others choose navels, or nipples, or buttocks.
Why there? Well, because, umm, well because it's obviously revolting!
My problem isn't so much imposing social norms on public spaces (as long as important expression is protected). My problem is that public spaces keep growing, and defined more broadly all the time (into things like anywhere someone works, or anywhere there might be a child...).
Let's shrink public spaces, and let private people decide which norms they'd like to enforce on their own property.
If, as you suggest, it's not possible to distinguish between speech and non-speech, then we shouldn't have any special protection for speech at all.
I was startled to see that the Massachusetts Supreme Judicial Court, a couple of years before it imposed same-sex marriage, ruled that homosexuals having sex in the bushes behind a rest stop could not be prosecuted for that, because not having marriage available to them, they lacked the opportunity to have a stable home environment.
No, it didn't.
Certain "wardrobe malfunctions," even if genuine, cannot be encouraged in front of audiences that may include children, because children may imitate behaviors that are easily misunderstood.
Try it at your next job interview.
And, for those of you who never spent any time in a shelter for battered women and their children -- we sometimes meet parents who never in five years thought to teach their little boys to aim. It's not cultural repression to teach people ways to avoid clean-up work, nor to tell them local customs so the cops won't need to teach them in jail.
(And please do not imagine that numbskull behaviors ever divide up neatly according to race or nationality, among shelter parents. The 5% of parents who act clueless come from all walks of life, several economic strata.)
Perhaps this is further explanation for why vast swathes of Latin America are essentially basket cases. Robust economic develoment demands strict self-control and accountability. A society where "anything goes" has neither, and will suffer for it.
Well, the whole gist of this ridiculous series of posts has been, "if it feels good, do it". And now he seems to be saying, "hey urine is clean, why can't we just urinate in public?". I'm sure he even makes the trip down the hall from his office when he needs to go. He doesn't just pee in the corner of his office. He is just putting up a ridiculous strawman. I sincerely doubt that he would want to live in a world where people could just whip it out and pee whenever and wherever they felt like it.
He is just being silly especially when he seems to be advocating all kinds of just revolting and rude behavior in public yet gets all bent out of shape by someone wearing a hammer and sickle t-shirt. What a strange world he envisions.
There is a long, long way from saying the government should not engage its forces in prohibiting an act to saying that we private citizens should encourage the act.
Public urination is also quite common in Taiwan, though public nudity, sex, and masturbation certainly are not. Taiwan has a very robust economy and a very low rate of violent crime. Apparently some cultures can piss on the street and still be economically advanced! So much for the grand theories tying the wealth of nations to their policies on public pissing! Glad that issue got resolved.
Well, someone correct me if I am wrong, but I have interpreted this series of posts to be an inquiry into the proper role of the government (particularly through criminal law) to regulate "yucky" behavior. We do live in a world where people can just whip it out and pee whenever they feel like. I could walk into my bosses office and pee in his trashcan if I wanted. Is it really the worry of being arrested for a misdemeanor that keeps me from doing so? Perhaps, but social condemnation and the possible loss of my job is probably a larger motivation. I am genuinely curious as to why many people think if the government doesn't make something illegal, it will become prevalent. For the purposes of this discussion, we have assumed that there is no public health risk. Even if we think it is disgusting, why does that mean we want to government to outlaw it? What sort of disgusting things should we not outlaw? I am very skeptical of the idea that we should use the government to enforce public mores, as that often leads to unforseen results. The ban on sale of sex toys in Alabama (or whichever state, I apologize if I have unfairly picked on AL) seems to be motivated by nothing more than a decision that dildos are "yucky". Is that ok?
Ken,
That strikes me as a non sequitur. Simply because you are unable to draw bounds on what constitutes speech does not mean that we can no longer protect speech. We just have to widen the net a tad.
But that's moving the discussion a step beyond what is at hand. The question is not to distinguish between speech and non-speech, but to find a principle that allows you to draw bounds around certain types of expression that you find yucky and certain types of expression that you don't find yucky.
You can argue that certain public actions are not speech to begin with, and therefore not subject to constitutional protection, but once you declare that action to be speech in some contexts, you can no longer principally rule out that action in any other context as not speech.
Looping back to the original point, once you grant the right for people to engage in public sex, nudity or urination in certain expressive cases, you then must grant it in all cases.
1. Statutory rape laws were unconstitutional.
2. Child pornography laws were unconstitutional.
3. Laws banning drunk driving were unfair.
4. Laws prohibiting sale of guns, alcohol, tobacco, heroin, etc. to minors were impossible to justify.
Libertarian positions (other than the pure anarchist position) can't be separated in principle from Islamic Sharia law, which also criminalizes violence, theft, and fraud. So?
Whether the properties of urine justify a ban on urinating in public is another question.
What?
You don't agree that separating harm caused by force or fraud from harm caused by exposure to disapproved behavior is a principled difference?
Urinating on streets and sidewalks does not pose a public health problem. I still agree with bans against public urination because of the offensive smell. Some city areas get no breezes and no rainfall, and the urine smell can linger for days. Even if only 5% of city dwellers urinated in public just once per day, many areas of a city would reek. (I lived in Brooklyn for three years and had numerous odoriferous experiences due to human urine.)
I would classify banning public urination as avoidance of a public nuisance, analogous to laws against allowing garbage to rot on your property.
To paraphrase Oliver Wendell Holmes: The right to create a reek ends where the other man's nose begins.
The claim to which I was responding was that conservative views of what the law should do were indistinguishable in principle Islamist views. Well, sure they both consider certain behaviors that do not cause direct physical harm or loss to be criminal. But that's true of liberalism as well, and progressives, too. Just because there's a similarity in some aspects of the legal philosophy doesn't mean much. Nazis and liberals both believe that there should be laws criminalizing some actions, but to argue that Nazis and liberals have much in common in principle is a statement that manages to be both accurate and trivial.