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Should Public Sex and Nudity be Legalized?
Amber Taylor writes:
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.
Public Nudity and Public Sex, Beyond the Yuck:
The libertarian justification for restricting public nudity and public sex is complex. There are, I think, two issues here (setting aside the First Amendment issue, which I think is generally not an obstacle for banning public nudity and public sex, whether or not the public nudity and public sex is engaged in for expressive reasons -- more on that later, maybe).
1. The Yuck Factor in Public Government-Run Spaces: When it comes to government-owned spaces, may the government forbid certain behavior because the majority finds it offensive? May a library, for instance, eject patrons who are too smelly?
On private property, libertarians would generally turn to the property owner's right to control. Some property owners might well set up nudist colonies; most, reflecting their own preferences and those of the majority of their patrons, would ban nudity. But when certain spaces are owned by the government -- even in a libertarian paradise most such spaces would be privatized, in the world in which most libertarians live, many spaces are government-owned -- the question is whether the government can set up rules that try to maximize the aggregate enjoyment of those spaces.
There might be some constitutional or broader moral constraints on that, for instance if the "yuck" stems from the content of the message that someone is expressing, or from a patron's race. But it's not clear to me that "yuck," whether it comes to nasty smells or to public sex, is a categorically illibertarian at least when it comes to behavior in government-run spaces (which I suspect are at issue in most public nudity / public sex prosecutions, though I realize that public nudity and public sex bans also extend to some private property).
2. Is It More Than Just "Yuck"? More importantly, might there be more than just "yuck" here? I'm not positive, but here's one answer that I've heard and that I think can't be easily dismissed:
Viewing nudity and especially sex does more than just make people say "yuck." Rather, it has the capacity to create, at least as to many viewers, a substantial amount of sexual arousal. Sometimes people will pay good money to get that sort of arousal. But in many places, people don't want such arousal, and find this involuntary arousal to be intrusive and troubling -- not because the behavior is yucky, but because it plays with their hormones in a way that's outside their conscious control.
Now we naturally tolerate a good deal of such arousal, and many of us probably welcome some modest amount of that arousal. Moreover, social and market norms tend to take care of most of the unwelcome sorts of arousal; people generally don't wear bikinis to work, and most people who go places where there are bikini-dressed people either seek to see a lot of skin, or at least expect to see it.
But public sex, and to some extent public nudity, have, I think, a much greater effect on most of us than just bared skin (or than statues of nudes, or even, in many instances, pictures of nudes). The question is whether the law can shield us from unwanted arousal by coercing others not to engage in such behavior; I tend to think the answer is yes, but in any event I don't think "it's just people saying 'yuck' is much of an answer."
Incidentally, if you do want to draw a First Amendment analogy here, it should probably be between public nudity/sex and publicly visible video screens that display nudity/sex -- since restrictions on both may involve the same interest in preventing involuntary sexual arousal -- rather than between public nudity/sex and flagburning, which involves a very different (and in my view much less legitimate) justification for restriction.
Should Public Sex and Nudity Be Legalized II - More Yakking about Yuck.
In brief response to Eugene's thoughtful post below:
I. The Yuck Factor in Public Space.
Eugene argues that perceived yuckiness should be sufficient to justify regulation of behavior in public space because the space is government-owned and the state has a right to "maximize the aggregate enjoyment of those spaces." I am not convinced that this is sufficient justification. If it is right for the government to ban any behavior in public spaces that the majority considers "yucky" (in the absence of explicit constitutional protection), then - at least in some jurisdictions - that would justify bans on a wide range of activities, including, for example, public handholding between same-sex couples. Moreover, at least as a moral matter, I don't see how Eugene's argument would justify forbidding the state to ban offensive public speech or restricting the presence in public spaces of people belonging to unpopular racial or religious groups.
True, such laws are forbidden by the Constitution, but Eugene's analysis seems to imply that the Constitution is wrong to forbid them. After all, if the speech or the groups are hated by enough people, banning it (or them) might "maximize the aggregate enjoyment of [public] spaces." Furthermore, I'm not convinced that a categorical ban on public nudity and sex really does maximize aggregate enjoyment. Those who engage in such behavior (even when it is legal) are braving severe public opprobrium and social pressure. They are willing to pay a high cost to do what they do. That suggests that they derive a high degree of utility from their activities - possibly enough to outweigh the disutility to others caused by yuckiness.
Finally, real world governments are unlikely to limit themselves to banning only those yucky behaviors whose absence will maximize aggregate enjoyment. They are instead likely to respond to pressure from interest groups and ban many activities whose yucky aspects do not in fact outweigh their benefits. This is especially likely to be true if we keep in mind the fact that there is no good way to measure how "yucky" a given activity really is and how much disutility a given amount of yuckiness causes.
II. Unwanted Sexual Arousal.
Eugene also argues that public sex and nudity can be banned because they lead to unwanted sexual arousal in bystanders. It might be true that this sometimes happens, but I highly doubt that it is the real reason for most opposition to public sex and nudity. My guess is that the "yuck factor" explains about 90% of the opposition and fear of excessive arousal perhaps a fraction of the remaining 10%. Moreover, there are many other activities that arouse strong, but unwanted emotions in bystanders. Flag burning, for example, arouses very strong feelings of anger and hatred. In a diverse society, almost any activity will generate strong unwanted emotions among at least some people. As a general rule, the management of emotional reactions is unlikely to be a task that government will do a good job at. It is a classic example of a matter best left to the private sector.
OK, I think that's enough (some would say more than enough!) yakking about yuck.
Involuntary Sexual Arousal and Touching:
Say that someone intentionally taps you on the shoulder to get your attention, or intentionally pats you on the back to compliment you, or even touches your arm in conversation or hugs you when parting. You might be slightly put off, at least under some circumstances, but the law would (and, I think, should) consider this to be well within the boundaries of permissible behavior. Not all unwanted touchings are batteries.
Say, on the other hand, that someone intentionally touches your genitals, or intentionally caresses your breasts (if you're a woman). In many circumstances, this would be considered a crime. Why the difference? I think that here too there is a connection with sexual arousal — either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you. [UPDATE: For more on the latter point, which on reflection I think I probably underemphasized, see here. Also, to make clear what I thought would obviously be clear when we were talking about nonconsensual and illegal touching -- and what I expressly said in All Related Posts (on one page) | Some Related Posts: - Unwanted Touching, Indecent Exposure, and Sexual Arousal:
- Smoking on Public Streets:
- Libertarianism and the Regulation of Public Space:...
- 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?
Yuck, Public Spaces, and Urine:
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?
Public and Private Spaces:
My own, perhaps idioyncratic libertarian view, is that because most public spaces (streets, sidewalks, etc.) should actually be private (owned, e.g., by homeowners' association), but are nevertheless public, the government can and should try to mimic the rules for public spaces that private owners would impose. There is no doubt that the vast majority of private owners would prohibit nudity, sex, and urination in public view. Those are easy issues, because the First Amendment is not implicated, but I think the same considerations apply even in situations where the First Amendment is implicated, and I'd argue against allowing picketing in front of someone's home, or protesting funerals, or public obscenity ("fuck the draft") [contrary to some commenters, I don't feel any obligation to defer to the Supreme Court regarding what I define as "obscene"]. I'd make some exceptions for the "public square" when core freedom of speech and association is at issue, but not many. Protecting people in "public" areas from things that would never be permitted on private property strikes me as going to the core of the states' police powers.
UPDATE: Many commenters seem astonished by the idea of private streets. My parents have a house in a private, gated community, where the streets are indeed privately owned. Access to the community is for owners and their guests. The community functions quite well, as far as I can tell, and, among other potential advantages, there is virtually no crime. This may not be everyone's cup of tea, but there is nothing either radical or impractical about streets being privately owned.
Why Reasons Matter:
Some commenters in the public-sex-and-nudity threads expressed puzzlement that we'd even discuss what for them is such an obvious question. One obvious reason for discussing it is the possibility that the current legal rule gets it wrong; but these commenters dismiss this possibility. And perhaps they're right -- I do tend to think the current legal rule is right, though I'm not nearly as certain as some of the commenters seem to be.
Yet even if one is sure one knows what the right answer is, exploring the reasons for that answer proves to be quite important. Let me just briefly identify a few:
1. Understanding the reasons for a rule helps us understand the boundaries of the rule. Even if we agree with the core principle that sex or nudity in most public places should be outlawed, this core agreement may not extend to all the boundary cases. Should nude beaches and nudist colonies be entirely forbidden? Should female toplessness be generally allowed on many beaches, as it is in places that aren't that far from us culturally? Should near nudity (at least off beaches) be forbidden, as some have at times suggested even in the U.S.? Should nudity be forbidden on broadcast television? On cable television? The list could obviously go on.
2. Relatedly, understanding the reasons for a rule helps us evaluate analogies that people draw to the rule. Whether two situations (e.g., public nudity and smoking on public streets) are analogous requires us to understand the morally and practically salient features of each situation. If public nudity should be banned because it's immoral for a person to appear nude before strangers, this wouldn't itself carry over to smoking. If it should be banned because people are entitled to walk the street free of perceiving things they find offensive, then the question should just turn on what the majority finds offensive (even without regard to health questions). Likewise, is public nudity analogous to the display of "classical-looking" nude statues, so that we could prohibit the latter as we prohibit the former? Hard to tell without understanding why it is that we think public nudity may properly be banned.
3. Understanding the reasons for a rule may also help us understand how harshly violations of the rule should be punished, and how much effort we should invest in enforcing the rule.
4. Understanding the reasons for a rule can help us think about theories that would reach results contrary to the rule. For instance, if some libertarian theory tells us that public nudity and sex should be legal, but we're convinced that this result is wrong, then this tells us that the theory is mistaken. But how mistaken, and in what ways? Is the error of the theory a deep mistake that should lead us to jettison the whole theory? Should it lead us to recognize an exception to the theory, and if so, what sort of exception?
I understand the pragmatic impulse not to worry about problems that seem to have an obvious answer. But it seems to me that thinking hard about reasons, even for the seemingly obvious results, is potentially quite valuable, and shouldn't be lightly pooh-poohed.
Libertarianism and the Regulation of Public Space:
David's recent post raises the interesting suggestion that government regulation of public space should, for the most part, mimic the rules that private owners would establish over a given type of space if it were privatized.
I agree with David's point that we would be better off if much of the land that is currently publicly owned were instead private. But I'm not sure he's right that government should have all or most of the same rights as a private owner would so long as the land remains in public hands. Here are my reservations:
1. Diversity.
David is absolutely right that most private owners would ban public (here, in the sense of visible, rather than in the sense of "on public property") sex and nudity on their own land. However, a minority would permit it, or at least would permit a greater degree of nudity and/or sexual behavior than would be acceptable to majority sentiment. If the government's rules for public land simply mirror those that a majority of private owners would enact, this diversity would be lost. This point applies far beyond the nudity issue. There are many behaviors that the majority dislikes, but that minorities differ about. Notice, as David himself points out, that his approach would permit (and perhaps encourage) government to regulate even many activities where the First Amendment is "implicated."
Unlike private space, public space is supposed to be, in effect, co-owned by everyone in the community. Therefore, it would be unjust, as well as often economically inefficient, for the state to exclude all uses of public space that the average or median private owner would forbid on his private property. At the very least, as I argued in my previous posts, the state should not be able to ban public behavior solely on the ground that the majority finds it "yucky," even though most private owners would ban such activities on their own land.
My rule might still not be as good as the private ownership alternative. But if the law does not ban "yucky" behaviors on public property, but does allow the majority to subject them to social pressure and opprobrium, social norms will end up limiting the incidence of "yuckiness" to something very roughly approximating the levels that would prevail if public spaces had a diverse set of private owners. Only those people with very strong preferences for aberrant behavior are likely to be willing to pay the cost of facing ridicule and social isolation. As some support for this conjecture, I note that I am familiar with communities (e.g. - Northampton, Massachusetts) where the authorities do little or nothing to enforce laws against public nudity and even against more discrete forms of public sex. Yet only relatively small numbers of people actually take advantage of this leniency. One of the commenters to my previous post noted a similar pattern in equally permissive Berkeley.
2. Monopoly Power.
Unlike most privately owned spaces, publicly owned space often involves monopoly power over an important amenity. For example, in most communities, the government is the owner of all or most roads. The local government is also often the owner of the only large public park. This monopoly power might not exist to the same degree if we adopt David's proposal of privatization, but it certainly exists in the status quo under government ownership. Basic economics suggests that monopoly providers of a service (here, access to key public spaces) should not have an absolute power to exclude people or behaviors they dislike. And this is in fact the approach that the law takes even with monopolistic private owners such as common carriers. At the very least, monopolistic government owners should not be given as much discretion in regulating land use as nonmonopolistic private ones.
Smoking on Public Streets:
By the way, what would you folks think of banning smoking on public streets, by analogy to the bans on public urination? Both smoking and urine creates smells that many people find offensive. Assume that neither creates a material risk of danger to health. (As I mentioned before, urine is generally mostly sterile; my guess is that whatever harms second-hand smoke might cause, the modest amounts that one inhales from passersby on the street likely have negligible effects.)
I'll gladly concede that smoking on city streets is treated quite differently as a social norms matter from public urination; many people whom I much like and respect have smoked on the street, and some of them probably still do -- I doubt that many of them have urinated on city streets. My question is whether, despite this, smoking should be banned on public streets, and, if it is, whether such a ban would be morally proper.
I'd like to set aside the question of government-imposed bans on smoking in private places (such as restaurants and bars) that are open to the public; that's a separate issue that has been much discussed, both in libertarian circles and outside them. Here, I want to focus on laws that are limited to smoking on government property, and especially outdoor property -- sidewalks (both immediately outside building entrances and more generally), parks, and the like.
Unwanted Touching, Indecent Exposure, and Sexual Arousal:
Why do we treat unwanted touching of some parts of the body different from unwanted touching of other parts of the body? (Obviously, I'm referring here to unwanted touching, not beating someone, holding someone down, or otherwise injuring them.) And why do we treat being nude or having sex in front of unconsenting others as a crime?
It seems to me that the two may be related. In an earlier post, I suggested that one similarity may be that both may involve "a connection with sexual arousal — either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you." If someone rubs a man's penis in a public place, for instance, the man may feel involuntary sexual arousal (though even if the touching is arousing, it might be unpleasant, precisely because it's done without the man's permission). Likewise, if two people are having sex in a public place, passersby may also feel such involuntary arousal (though I stress again that the arousal may be disgusting rather than on balance pleasant, precisely because it's unexpected and unconsented to). Such messing around with others' hormonal systems, it seems to me, is troubling in a way that an unwanted pat on the back or the ounesthetic but nonsexual display of, say, an unsightly belly is not.
On reflection, though, I think I probably overstated the importance of this factor as to unwanted touching, and understated the importance of the other factor that I mentioned: "the likelihood that the other person is deriving some sort of sexual arousal from touching you." Even if you feel entirely unaroused (neither pleasantly aroused nor, more likely, unpleasantly aroused) by someone caressing your private parts in public, you may feel quite upset by the likelihood — not certainty, but likelihood — that this other person is deriving some arousal from the action, and from your involuntary involvement in the action.
That too helps explain why we treat unwanted pats on the back differently from unwanted pats on the breast or on the genitals. (To shift for a moment to a much more intrusive but necessary touching, I take it that many of us would be quite upset if we learned that our gynecologist, urologist, or proctologist, who has to touch our private parts, is actually being aroused by the touching, or, worse still, is engaging in the touching because he wants to be aroused by it. Here, we probably must acknowledge some risk of the arousal — but I suspect most of us try to put it out of our minds, and most certainly would not enjoy learning that the risk in this instance is reality.)
And it might explain why we're quite upset by at least some forms of public nudity and especially public sex. If I see someone masturbating in a public place, I'll probably assume that he's doing precisely because he gets his jollies from being seen by unexpecting passersby (maybe not passersby quite like me, but at least some kinds of passersby). Perhaps it is this sense that the person is likely to be deriving some sexual arousal from others' involvement in his act, even if the involvement is simply observing, that makes it an offense against those others.
I'm not sure how apt this explanation ultimately is for all cases of public sex or public nudity, especially ones where it doesn't seem terribly likely that the people engaged in the act really are doing it for the sake of sexual exhibitionism. But the risk that sexual exhibitionism is part of the motive, and thus that the viewers are in a sense being involuntarily used (though without physical touching) for the actor's sexual gratification, seems to be present in at least many instances of public sex and nudity, to the point that a prophylactic rule against such conduct (except when only consenting viewers are likely to be present) seems sensible.
As I said in the earlier post, I'm not positive about this, but it seems to me that there's something interesting and possibly important in play here: Some conduct that sexually arouses a person through the unwanted participation — even visual — of another may be improper, even if similar conduct in which sexual arousal is absent is generally fine.
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