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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.

Hans Bader (mail):
Wrong. Most people are ugly (fat, flabby, and out of shape). Seeing them copulate in public would be quite unpleasant.

And the number of people who would have sex in public (given the lack of self restraint and bad taste of many people) is far greater than the number who would ever burn a flag, resulting in a much greater amount of offense.

Not to mention that flag-burning is political expression, which occupies a higher rung on the First Amendment heirarchy than sexual acts.
5.4.2006 7:01pm
Porkchop (mail):

Wrong. Most people are ugly (fat, flabby, and out of shape). Seeing them copulate in public would be quite unpleasant.

If the objection is esthetic, then it seems to me that first amendment standards applicable to art would apply. Are you saying fat ugly people having sex is obscene, but thin attractive people having sex is not?
5.4.2006 7:08pm
Anderson (mail) (www):
Nazi demostrations, flag burning, and so on are at least as disturbing to sensitive children as public nudity is.

Leaving aside public nudity, public *sex*? Uh-uh. No way is it okay for my kids to have to see people humping in the park.

I don't see how having sex is a "speech act" any more than the non-protected burning of a draft card (O'Brien, right?).
5.4.2006 7:18pm
Ilya Somin:
A draft card is government property, and the Supreme Court specifically relied on that fact in O'Brien. Burning your own piece of paper would certainly be protected speech.

I note also that my original post specifically stated that most public nudity/sex is not "expressive" and therefore not subject to First Amendment protection. But the minority which is an exception to this generalization deserves protection for the same reasons as flag burning.
5.4.2006 7:21pm
Paul McCartney:
Why Don't We Do It In The Road?
5.4.2006 7:22pm
Hans Bader (mail):
I was partly being humorous.

I actually think that a showing of offense in individual cases is not required to regulate public conduct of this nature, which has not been historically understood as speech or expressive conduct.

But come to think of it, under the legal test for obscenity, one of the four required factors required for speech to be obscene is whether the speech is patently offensive. So, ironically, the ugliness of those engaging in public sexual conduct might be relevant to that particular factor (patently offensive).

Of course, sex in private between consenting adults would not satisfy the other criteria for obscenity even if the participants were ugly (which is a good thing because most of us become ugly as we get older), even if the Stanley v. Georgia decision didn't call demonstrate that privacy rights place limits obscenity law in non-public settings.
5.4.2006 7:23pm
Robert Schwartz (mail):
Skiing down slippery slope in a full tuck. The fact that you are taking this seriously shows how depraved this society and the law have become.
5.4.2006 7:51pm
Joel B. (mail):
Robert has it exactly right. The idea that pornography is "protected" under the first amendment was and is idiotic and destructive. And those who think I'm wrong should exactly consider the fact that this post is serious! Free speech is just that, not the right to commit acts of debauchery.
5.4.2006 7:56pm
Silicon Valley Jim:
I also think that Robert has it exactly right. The First Amendment, insofar as it applies to this situation, says, "Congress shall make no law . . . abridging the freedom of speech, or of the press". Of course, technology has made it necessary to decide whether radio broadcasts, television broadcasts, web pages, etc., constitute speech or use of a press, but I'm reasonably sure that sex was around in 1791, when the First Amendment was ratified. George Mason and those who debated the Bill of Rights, if there was a debate, could have inserted, "or of expression via sexual intercourse" had they so desired.
5.4.2006 8:12pm
narniabound (mail):
The ability to restrain oneself is as important to liberty as the ability to express oneself. Let's call this what it is, shall we? It's not "free expression" or "free speech": it's lack of self-control. The phrase "get a room" is not uttered because one is embarrassed by the act of seeing two people caught in the act, but because one is annoyed at the lack of restraint. It's one of the few attributes of humanity that separates us from the animals.
5.4.2006 8:12pm
Mike BUSL07 (mail) (www):
Joel, will you be the one deciding what is debauchery and what isn't? Potter Stewart knew it when he saw it, but he is gone now. To you, a couple of idiots doing it in a train station, to, I don't know, "protest homelessness" is debauchery. (Admittedly, it is to me as well). But what I find *much* more offensive is something I saw quite a bit in Union Sq. a few years ago - displays of combat boots and dog tags - put there by war protesters claiming to speak on behalf of the troops. I don't - and shouldn't - have a right to stop them, right? Why is plowing as political speech, any different from a thousand other boorish, tasteless things, one can do as political speech?
5.4.2006 8:14pm
jack brennen (mail):
SV Jim, isn't sexual intercourse a form of "peacable assembly"?
5.4.2006 8:15pm
Mike BUSL07 (mail) (www):
jack, it's only peaceable if it's not any good.
5.4.2006 8:16pm
Sydney Carton (www):
I agree with Robert, Joel, and Silican Valley Jim. This is completely idiotic. But it's not evidence of SOCIETY's depravation. It's only further evidence of the depravity and decline of the legal profession.
5.4.2006 8:16pm
JRL:
"For example, nude people standing by the side of a highway could distract drivers and cause car crashes."

There we go again--just like blaming the rape victim because she was dressed too scantily.

Attractive nuisance, or perhaps unattractive nuisance?
5.4.2006 8:20pm
Michael Lopez (mail):
Oh for crying out loud, will you all take your collective heads out of the first amendment for just a second and think about this from a larger perspective. Narniabound is pretty much on the money -- this is about restraint.

What society has ever survived without harnessing and channeling the libido of its constituents?

The rampant sexualization of our culture is bad enough in that respect -- we have the most intelligent among us (college students) reduced to blase, indifferent piles of human inutility, eager for nothing more than the next sensation.

The fact is that the human being is a fairly simple animal on some levels (although admittedly extraordinarily complex on others) and the sex drive is one of the most potent motivating forces we have. if we give it free reign, we can't expect to ever get anything done. Furthermore, as narniabound suggests, it's also about civilization's taking care to cultivate the virtue of restraint. Without restraint and self-discipline, it's impossible to get anything more than eating, sleeping, and f*cking done -- and you had better hope that the food doesn't run out or eating will go away, too.

This isn't about speech, it isn't about expression, and it certainly isn't about being offended (although the taboo which leads to being offended is part of a useful social schema). This is about having a functional, industrious civilization
5.4.2006 8:22pm
Ming the Merciless Siamese Cat (mail):
Public fornication is constutionally protected expression? To paraphrase Orwell, one has to be a law professor to believe such things: no ordinary man could be such a fool.


"Nazi demonstrations, flag burning, and so on are at least as disturbing to sensitive children as public nudity is."



Puhleese. Do you have children (and, given the above absurdity, I pray for their sake that the answer is 'no')? I am perfectly able to explain to my six-year old that men marching in Nazi uniforms are misguided fools and that humans are capable of holding abhorent ideas. That's a lesson its never too early to begin to convey. However, I six is entirely too young for me to explain two adults engaged in a sex act on the public streets and one's right to freedom of expression does not include a right to compel me to have to provide such an explanation to my child.

Furthermore, I am unable to think of any idea that (i) could not be better and more clearly expressed by means other than public fornication or nudity. Rather, the shock of the acts themselves would surely distract from the actual idea surportedly being conveyed. Indeed, it is the shock of the conduct (conduct, not expression), and resulting attention, that is the entire point of the exercise. And one no more has the right to publicly strip or fornicate to draw attention to their message than they have the right to use a bullhorn in a residential neighborhood.

Finally, you state:


"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."



Having lived and worked in Europe for a number of years, I wouldn't care to see the sexual, religious and social mores of young Europeans become the norm in the US and I am not prepared to say that the the prevalence of public displays of sexuality have nothing to do with shaping those mores — anymore than I am prepared to say that increased displays of and references to sex and nudity aren't partly responsible for the coarsening of American culture.
5.4.2006 8:23pm
OC:
What about Ginsberg v. New York, 390 U. S. 629 (1968)?
5.4.2006 8:25pm
therut:
Some lawyer has waaaaaaaaaaaaaaaaaaayyyy to much time to waste. But I am sure there will be at some point in the future a political party that will support such nonsense. Wonder which one it will be???????????
5.4.2006 8:29pm
jack brennen (mail):
Well said in the update Mr. Somin.

It seems to be part of our lamentable everything that isn't compulsory is forbidden culture, which just so happens to fly in the face of our constitution.
5.4.2006 8:32pm
crane (mail):
I've always been puzzled by the moral standard that says it's okay to show kids cartoons and movies with people beating the living daylights out of each other, but the slightest hint of consensual sexual activity will scar them for life. Frankly, if I were given the choice between explaining sex or the Holocaust to a six-year-old... well, I'd much rather pull out an illustrated anatomy book than try to convey the idea that one group of people could decide to methodically slaughter another.
5.4.2006 8:37pm
Richard Aubrey (mail):
Yeah, well, if different cultures have different views, they can make different laws.
Ending with a discussion of what Saudis think is yucky is Anthropology for Relativists 101.

Why should the US be the only country not able to make laws according to its public consensus? All those third-world pisspots get to do so, and it's charmingly authentic.

The question is whether the folks who want to screw in front of our kids are anxious to screw, or are trying to epater les bourgeoisie because they think it's cool. If they need to screw, let them do it behind bushes. If grossing out the passersby on the grounds that they're probably fundies who deserve all that and worse is crap.
5.4.2006 8:48pm
Freder Frederson (mail):
I am not going to touch the issue of sexual displays with a ten foot pole, but nudity per se is a different issue. I lived in Germany for a couple of years where they have a whole different attitude towards nudity than they do in this country in that the Germans (and Austrians and most other Europeans) have no problem with nudity (God forbid you see the inside of their homes, though).

I was sitting in a sauna in with my wife at a ski resort in Austria when an older couple came in with a younger (I would say late teens, early twenties) woman who was obviously their daughter. We, of course, were all completely naked. The daughter was extremely attractive. She sat down on the bench above me with her . . .umm. Well, let's just say it's a good thing the extreme heat of the sauna had a an effect on me that I would normally regret but in this case spared me considerable embarassment and probably a lot of grief from my wife. When they left, I turned to my wife and said to her "Can you imagine getting naked with your parents in the sauna". We both just laughed at such a ridiculous image.

Now, what was my point again other than to start a Penthouse letter. Oh yeah, in this country, nudity almost always gets caught up in sexuality. I think that is social conditioning.
5.4.2006 8:55pm
Reg (mail):
What a ridiculous idea.

This is where I part with the libertarians. It is already difficult to raise kids in this society. I suppose there are a few libertine folks out there who don't care what their kids are exposed to, but I'd guess they are in a very small minority.

I highly doubt that exposing kids to sex acts at a young age has no effect, unless we don't care when elementary school kids experiment sexually or worse, sexually assault each other. There are good parents out there who train their kids well, but there are also a lot of bad parents. I think there is a legitimate purpose for laws to protect society and help kids of bad parents by preventing unsupervised children from accessing adult media and from being exposed to adult behavior.

Also, I don't know what the purpose of allowing sex and nudity in public places would be. Anybody who wants to see that doesn't have to look far. And I don't know of any ideas that can't be fully expressed absent a showing of genitals. Nothing would be gained by this, and there is a great deal more to lose.
5.4.2006 8:57pm
Waldo (mail):
If you have the right to screw in the park, do I have the right to heckle you as you do it?
5.4.2006 9:04pm
crane (mail):

If you have the right to screw in the park, do I have the right to heckle you as you do it?


And you just know some people would be hanging around kibitzing.
5.4.2006 9:08pm
Frank Drackmann (mail):
You are correct sir,, Fat,Ugly people having sex is obscene, thin attractive people doing the same is not. I think there's a survival of the fittest that drives us to fuck with a modicum of privacy however, the Fred Flintstones who had sex out in the open were more likely to get eaten by the Velociraptors than the Barney Rubbles who got it on in the cave.
5.4.2006 9:11pm
Gil Milbauer (mail) (www):
I think this post has the issue exactly right, and the responses remind me why I'll never call myself a conservative.
5.4.2006 9:13pm
Anthony A (mail):
I think Crane's response is a wonderful application of the idea that the cure to bad "speech" is more speech. Even if public sex were legal, heckling it would be, too, which would deter most folks from doing it.
5.4.2006 9:28pm
Tom952 (mail):
The yuck factor deserves respect if you wish to have a society that respects the yuck factor. We can live in a society where we celebrate our high-minded tolerance for foul and offensive language, public sex of every imaginable style, and perhaps highly public exhibitionist excretory functions. Or, we can forego these meaningless forms of expression in favor of living in a more refined, pleasant society. It depends upon our values.

Does anyone really believe the liberty of public sex would make our nation a better place to live?
5.4.2006 9:38pm
Humble Law Student:
I'm not trying to be too much of a jerk. Okay, I am. Professor Somin is your fealty to freedom (barely qualified by anything it seems) so absolute that you would refuse to ban the following behavior?

When you have children, preferably a daughter, some men and women engage in various sex acts in front of your house everyday when she goes to school. Or maybe, they have crazy monkey sex in the park that you like to take her to play in.

For crying out loud, don't you ever think certain behavior can EVER be so out of bounds that it would justify society as whole codifying their condemnation of it in some enforceable way?

Btw, please forgive the extreme hypo, I just want to know if the you think social norms can ever be a basis for law. Give me something, so I don't write off liberations forever.
5.4.2006 9:44pm
Tal Kedem (mail):
Tom952:

Precisely the point is that each person should be the arbiter of which sorts of expressions, fair or foul, in which he or she wishes to engage or to view. We can, and should, encourage one another to be refined and to be pleasant, but employing force of arms of the government and legally reqiuring people to adhere to our particular view of 'refined' in a manner that exceeds restraining them from harming one another is problematic and unjust.
5.4.2006 9:44pm
Humble Law Student:
libertarians*
5.4.2006 9:44pm
bode:
For what it is worth this recent post to the smoking gun seems appropriate to the discussion:

http://www.thesmokinggun.com/archive/0503061lot1.html

I'm not sure what permitting the above buys us as a society, but to each his own I suppose.
5.4.2006 9:46pm
A Berman (mail):
Basically, ideas like this are what happens when lawyers start thinking too much of the law.
The United States of America is not a mindless computer, with us reading the Constitution as a computer program that controls everything we do. We are thinking people, and we can distinguish between preventing public speech and preventing public fornication and interpret the First Amendment in that manner.
5.4.2006 10:02pm
Not So Humble Law Student (mail):
I fear a lawyer who doesn't express absolute fealty to freedom. There is no higher value.
5.4.2006 10:04pm
Ilya Somin:
When you have children, preferably a daughter, some men and women engage in various sex acts in front of your house everyday when she goes to school. Or maybe, they have crazy monkey sex in the park that you like to take her to play in.

For crying out loud, don't you ever think certain behavior can EVER be so out of bounds that it would justify society as whole codifying their condemnation of it in some enforceable way?

Btw, please forgive the extreme hypo, I just want to know if the you think social norms can ever be a basis for law. Give me something, so I don't write off liberations forever.


This is an easy one, even if "extreme." I would certainly find such activity offensive and distasteful, but that doesn't mean that government should ban it. I would find it even more offensive and distasteful if Nazis or Communists demonstrated in front of my house every day, but that doesn't mean that the government should get to ban that.

The issue is complicated slightly by the possibility that these people are actually stalking or harassing me or my hypothetical daughter. If that is the case, then their activities should indeed be banned. But that should be the case regardless of the content and style of their speech and activities. If they were constantly hounding me in order to promote libertarian views I agree with, the same conclusion would apply.

As for social norms being translated into criminal law, I have no problem with that so long as the norm is supported by evidence of real harm and not just "yuck factor" considerations. In this case, most arguments in favor of criminal prohibition do in fact reduce to anger at yucky activities and so I reject them.
5.4.2006 10:10pm
ficus:
I find this series of comments reassuring, inasmuch as there are a large number who find the poster's point appalling. But it seems probable to me that the proportion who find it appalling would be much higher in a cross-section of the public (sorry guys, no offense intended). I take that to be yet another reason for trying to keep this kind of question out of the hands of lawyers who have become judges, and leaving it in the hands of legislators.

Mr. Somin concluded his update with the words, "we will have a much freer society." And that is a good thing, why?
5.4.2006 10:15pm
Ross Levatter (mail):
It gives a whole new meaning to the free rider problem...
5.4.2006 10:25pm
Mike99:
Does anyone really think that having sex is speech?
5.4.2006 10:27pm
chrismn (mail):
This (the ridiculous ability of libertarians to take everything to their "logical" conclusion) is why I stopped being a libertarian in college. This is simply moronic, and shows the good professor has lost all common sense. (I am sorry to be ad hominum, but at some point complete idiocy has to be pointed out as complete idiocy. Is it ok to defecate in public as long as you do it in a bag so their is no public health problem?)

I have yet to see in this thread that anyone who is willing to say public fornication is a right has children. Many have brought up Europe at least in regards to nudity. In a sense, Europe indeed does have "public" fornication in that hard core pornography (or at least soft core, I haven't checked that hard) seems much more accessible on the public airwaves. Who wants to raise children in such an environment?

And guess what? Not many do. So is survival of the culture enough of a public purpose to ban public copulation?
5.4.2006 10:35pm
Occassional Reader:
So what kind of sex is expressive?

How about a Sunday morning romp with a condom on the pavement in front of a Catholic church?
5.4.2006 10:38pm
Daniel Chapman (mail):
Just want to toss my vote for "absurd" out there... Anything more would be taking this post too seriously. It should be dropped by the wayside of intelligent thought and forgotten.
5.4.2006 10:49pm
Tom952 (mail):
Nazis or Communists demonstrated in front of my house every day, but that doesn't mean that the government should get to ban that.

Yes, but they would be expressing a political viewpoint, and as such it is protected speech.

Three gay guys and a Tijuana-trained donkey (sans condoms) working off some testosterone on the corner there in Falls Church is simply disgusting. You would look like a total ass strolling past such a spectacle while explaining your high-minded principles to your teenage daughter.
5.4.2006 10:54pm
SLS 1L:
If someone presents me with some kind of evidence that merely viewing public nudity or sexual activity is harmful to children, or at least a prima facie case for believing so, then I'd be happy to ban it. But nobody has presented such evidence, or even a plausible causal argument.
5.4.2006 10:58pm
Bruce Hayden (mail) (www):
I just finished rereading "The Third Chimpanzee". I had pulled it out in response to a question at Althouse, and ended up rereading the whole thing. Part of the first part of the book revolves around determining how we differ from the other two types of chimps (it was pointed out at Althouse that despite the closeness of our DNA, there are other reasons to consider us in different genera).

One of the points made was that one of the human universals that is significant in its difference with almost all other animals, and, in particular, with our closest animal relatives, is that sex is private for us. Regular chimps line up when a female is (visibly) ovulating, and pygmy chimps engage in promiscuous sex on a daily, routine, basis, including sex with members of their own gender.

But apparently private sex is a human universal. Homosexuality is apparently accepted in many more human cultures throughout throughout the world and time than is public sexual intercourse (ignoring some ritual sex involving, for example, fertility).

The author suggested that private sex, along with hidden ovulation, evolved in our species to facilitate pair bonding, and that evolved in order to keep males around to support the raising of kids. (And, yet, private sex is practiced by significantly more cultures than even have males living with females).
5.4.2006 10:58pm
Duncan Frissell (mail):
Contrary to the assumptions of some posters, the libertarian position doesn't favor public sex being permitted. It actually opposes public sex because it favors there being no public spaces.

And these posts are a great argument in favor of the libertarian position.

No Commons -- No Problems of the Commons.
5.4.2006 11:02pm
Rex:
I would find it even more offensive and distasteful if Nazis or Communists demonstrated in front of my house every day, but that doesn't mean that the government should get to ban that.

But what is the function of government if not to regulate those actions which a majority of the populace (or its representatives) objects to, so long as not otherwise constitutionally protected?

It's one thing to argue that offensive or distasteful conduct should not be the subject of legal constraint, i.e., live and let live. But to say that the government shouldn't "get to ban that" is to deny the basic police power inherent in states. Whether the government should exercise such power broadly or prudently is a question on which reasonable minds can disagree, but to reject the existence of that plenary power in the first place is just inconsistent with our legal tradition.
5.4.2006 11:13pm
logicnazi (mail) (www):
Grrr...these comments drive me crazy. Ill-formed emotional appeals about how society needs to control it's sexuality or we need some restraint are no different than the same emotional crap we see with flag burning or people said about things like playboy.

Just listen to yourselves! It sounds just like those lame, unconvincing responses that are always being mocked on Volokh when someone tries to justify censoring something because it is 'anti-Palestinian' or because they find depictions of the prophet offensive. The Muslim groups said almost exactly the same thing about the cartoons, 'Yes we need free speech but society needs a boundary when religion is mocked'.

Also responses about how people have started taking the law too seriously or that otherwise suggest that intellectual discourse has just gone to far on this point just show that the commentator can't come up with any good responses. If you are going to give up logic, argument and reason when they conflict with your social prejudices then quit pretending your beliefs are justified or you make decisions for good reasons. If you are willing to throw logic and argument overboard when it doesn't say what you want then you are no different than a flat-earther or anti-evolutionist and having a discussion is pointless.

I don't mean to say that opposition to legalizing/giving constitutional protection to public nudity is beyond the pale or something. However, such opposition should take the form of a good reason to believe it is important (empirical, invocation of general principles etc..) not emotional backlash. As a responsible human you have a responsibility to either identify the flaws in an argument or the false premises or grudgingly digest the unpalatable conclusion. You don't just get to avoid some conclusion because you don't like it.

As for the actual substance of the issue I mostly agree with Ilya but I do think there is a reasonable case for the other side. I think there might be a reasonable pragmatic argument that nudity is not particularly uniquely expressive of ideas the way some swear words do seem to be. Also it is much easier to carve off nudity as a banned category without serious content discrimination on important social issues. Sure nudists might have their content impinged upon but it is unlikely to pose the same problems that banning words like 'Fuck' would which would implicitly take sides in certain important cultural battles.

Ultimately I don't think these are very good arguments just because the harm from nudity is so small, if existent at all. Sure some people find it gross/disgusting (but realistically you would see it very infrequently except at some protests) but most people would just find it scandalous in that sorta good way that leaves them with a good story to tell.

I mean I live in Berkeley which effectively has legal public nudity and you see almost no nude people around. All that happens is every once in awhile a bunch of college girls get together and have a topless march down the major street. It isn't hot or titillating (at least to me) but it isn't exactly inflicting great harm on people who happen to see it.

Ilya it's good to have you around.
5.4.2006 11:17pm
Anderson (mail) (www):
I just think it's absurd to imagine that the First Amendment is an absolute.

Porn can't be banned "for the children's sake" because it can be consumed in a manner that doesn't affect children. That's not the case with public sex acts.
5.4.2006 11:18pm
Redman:
Does the public have no rights?
5.4.2006 11:30pm
Dave G:
Now that the "what about the children" line has inevitably been trotted out, it's probably worth reminding people that from an historic point of view, children being exposed to displays of sexual activity is far more the norm than the exception. This isn't too surprising since until about 100 years ago, 1)the vast majority of children were raised in rural agricultural environments, where sights of animals mating were pretty common, and 2)most people grew up in single-room homes or homes with many people per room, where privacy was basically non-existent.

For activities once banned primarily due to the "yuck" factor, you can add autopsies to the list, and probably a few other medical procedures that I'm having trouble remembering.
5.4.2006 11:31pm
Laura (mail):
All communities have standards. If the standards aren't codified, then the community member with the very lowest personal standards gets to set them for everyone.
5.4.2006 11:34pm
JoeNik:
Does public sex extend to masturbation? To a female teacher masturbating in front of the football team? How about an adult male masturbating in front of a grade school while watching the children play?

If you think that public intercourse is OK but not masturbation explain why the line you draw is better then the line I want which is kissing is OK but sex is not. If you want to allow masturbation but not if there is an intent to seduce or if children are used as a focal point explain why I must prove your state of mind before I can regulate your conduct.
5.4.2006 11:36pm
Christopher Fotos (mail) (www):
This is either insane or cribbed from The Onion.
5.4.2006 11:56pm
Lev:
Take colored watercolor paint. On one of the individuals paint "public" and on the other paint "politicians." Voila, any nudity and copulation become expression.
5.5.2006 12:00am
Bruce Hayden (mail) (www):
The discussion is clearly not cribbed from the Onion. Only a bunch of law profs, law students, and lawyers could get into this sort of 1st Amdt. argument about this topic. Most anyone else would think we were insane.
5.5.2006 12:01am
Freder Frederson (mail):
I would find it even more offensive and distasteful if Nazis or Communists demonstrated in front of my house every day, but that doesn't mean that the government should get to ban that.

What if the Nazis or Communists were naked or having sex? That would really be a cunundrum, wouldn't it?
5.5.2006 12:06am
JB:
Now that we know the libertarian position on sex, I wonder what the libertarian sex position is.

This is an interesting intellectual exercise: In the absence of harm, nothing should be forbidden. In theory. How far does that carry into the real world before it meets compelling interests that limit it?

Personally, I believe there's harm in it (kids sexually experimenting too young, it becoming vastly harder to stop sexual predation, etc), but that doesn't require my moving off of a harmless-freedom-absolutist position. From what I've seen of those who are trying to move off that position, they're generally failing and looking silly and unprincipled.

Is there another potential limiting factor besides harm, yuck, and general public approbation?
5.5.2006 12:15am
Joey (mail):
Ilya, thanks for the further clarification in your second update. If I understand what you're saying then I entirely agree with you. Leaving the Constitution out of the equation, I can find no moral basis for outright banning sexual acts in public. Now, I consider myself both religious and conservative, so this isn't a secular/libertarian defense, and certainly isn't an example of a "ridiculous ability of libertarians to take everything to their "logical" conclusions," as chrismn says. As I see it, sex in public differs only from obscene hand gestures, spitting, flatulance, etc., by degree, so it would impossible to establish an absolute line between what is and is not socially acceptable.

The BBC's "Have your say" section featured a discussion somewhat related to this a long time back, in which people wrote in about experiences of socially unacceptable behavior they had witnessed in public, ranging from spitting and swearing to one man injecting insulin into his stomach in a restaurant. Should these acts be banned, too, simply because they cause offense? I would say no.

People seem to believe that because public sex is a topic the vast majority of people, including yourself, believe is obscene, it should be illegal simply on the grounds that there is a near-absolute consensus on the matter. However, I think that a society should rather take it upon itself to denounce such acts, and not rely on the government to do so for them. I think there is a valid reason why public sex has a 'yuck factor,' and that reason is because certain societies gave it one by their common deploration of those acts. Further, I think there is a tendency for moral legislation to devalue the very thing it is outlawing to the point where people no longer view it as delporable and instead ask, "why was it ever illegal to begin with?" That is a far more dangerous road to head down than the road which may occasionally pass by two people bumping uglies.
5.5.2006 12:19am
Sydney Carton (www):
Of course there's a moral basis for keeping sex acts private. Public sex acts are a concession to lust. It violates chastity and the dignity of the human person in their sphere of privacy and modesty. It forces upon ALL of us the acceptance of the most depraved acts (assuming that all types of sex acts are permitted). Hence, society is forced to accept viewing more perverse, obsecene, twisted, disgusting sexual performances. It would encourage the perversion of traditional morality, chaste morality, like marriage. It would objectify base pleasure and corrupt all of society, not just the youth.

I agree with chrismn: sometimes you have to be harsh when you speak the truth. This is a deplorable idea, and the work of a perverse mind that should forever be kept away from makers of policy. And I fear that unfortunately, the depravity of the legal profession suggests that in time these lunatic ideas will be foisted onto an unwilling public and grave violence will be done to our society. Ilya Somin, I highly suggest you humble yourself and understand that if your morals cannot find a reason to ban public sex acts, then you should do some serious soul-searching.
5.5.2006 12:46am
Artemis (mail):
JoeNik asked precisely the question that I would have asked. What if someone walks onto a playground and starts masturbating while staring at my four year old daughter? Would you be willing to ban that kind of activity? Why or why not?
5.5.2006 12:48am
Daniel Chapman (mail):
"As I see it, sex in public differs only from obscene hand gestures, spitting, flatulance, etc., by degree, so it would impossible to establish an absolute line between what is and is not socially acceptable."

How do you figure? Maybe if you stopped thinking in bizarre abstracts and joined reality for a second, you'd realize that drawing an absolute line is EXACTLY what societies do when they decide what behavior will be tolerated and what won't.

We let people drive 65, but not 66.
We let people sell cigarettes, but not marijuana.
We let people have sex with 18 year olds, but not 17 year olds.
Do I really need to go on?
5.5.2006 12:49am
ficus:
The crux of Mr. Somin's position on sex in public is that it is "offensive." He means that it is offensive, but not wrong in any stronger sense, as it does no "clear harms to third parties". Objections to it are on the plain of taste. From that he concludes that the state's police power should not be used against it.

A lot of people part company with him at the first step: they view sex in public as more wrong that just "offensive." I do, and in saying that I am not making an argument at all. I am expressing what everyone knows, or should know. That isn't intended to persuade Mr. Somin, although I would be happy if (unexpectedly) he changed his mind.

It is difficult to construct an argument for something so basic; we argue by starting with agreed premises, and you have to start somewhere. A person who claims to see nothing wrong with sex in public, other than as a matter of taste, is leaving you not much to start from. The understanding that one shouldn't have sex in public is intuitive with most people.

The analogy that has been drawn to things like racial bias is specious. True, the inferiority of other races is intuitive with many people, but at the same time it conflicts with other things they understand, such as the wrongfulness of doing unwarranted harm to another person. You can try to show an inconsistency. I do not think that such a move by Mr. Somin would be possible. There are no principles with which the condemnation of sex in public conflicts, that people generally recognize. One might, I concede, cite the principle that there is no moral wrong other than an act that injures another person. That principle, if true, would go far toward justifying Mr. Somin's position; but who, outside the circle of libertarians, thinks it's true?
5.5.2006 1:06am
Joey (mail):
Daniel, I promise to join reality if you promise to consider what I actually said in its full context and also show a little tact. There is no reason to start an exchange so bitterly.

The entire point of this thread, and what I was saying, rests on whether public sex should or should not be legal, and why or why not. Each of the examples you mention are indeed arbitrarily drawn lines and a valid debate could be waged against any of them. My question, though, was not WHERE to draw the line, but rather whether a line in this particular instance CAN be drawn. And I maintain that it can't. Further, I am not arguing where or why societies draw the line, but where and why the government should not draw the line. The difference between the two, especially in my first comment, is important.

Then again, maybe my saying "a line cannot be drawn on decency, therefore there should be no line at all," is akin to saying, "66 MPH is no more rational than 65, and no benefit is apparent in 65 and not in 66, therefore speed limits should be abolished." I'll have to think that one over.
5.5.2006 1:07am
Bruce Hayden (mail) (www):
As I pointed out above, public sex isn't something banned by just some human societies, but, rather, by almost all of them. It is more a human universal than even men and women living together in monogamous family units. Indeed, in some societies, men live with men, and women with women. But even there, heterosexul sex is done almost exclusively in private. Homosexuality is accepted by many more societies than accept public sex.
5.5.2006 1:11am
GW 3L (or I was until 9:30 this evening):
JB asked:
Is there another potential limiting factor besides harm, yuck, and general public approbation?


This isn't responsive to your question, but I think you may have meant "opprobrium." "Approbation" means approval. I only point it out because I used to mix them up.

Slightly more responsive is that we might place some limitations on people screwing outside my house on a daily basis or people screwing outside of an elementary school where attendance is mandatory because of the "captive audience" concern.

Of course there's also the inherent limitation that most people have no interest in screwing in public. I find somewhat offensive the suggestion by many on this thread (not yourself) that humans are so inherently immoral, so weakly constrained by personal notions of propriety, that in the absence of government coercion, we'll regress into ravenous sex-crazed animals. It's a remarkably dim view of our capacity for goodness, godliness, or whatever aspirational qualities we look for in mankind.
5.5.2006 1:14am
Bruce Hayden (mail) (www):
My contention that the reason that we think that public sex is either wrong or distasteful (or both) is that we are hard wired that way. This contrasts with race, which, I would submit is primarily learned behavior. My experience with the later is that if you have kids growing up in upper middle class to upper income families in a mixed racial environment, they grow up almost race blind. An example of this was related to me today - a HS girl who goes to a prep school (with a lot of money) was at a soccer tournament today, and their team were struck by how blonde the other team was. They hadn't realized until then that their team (and school) was as racially mixed as it is, since the other team wasn't. It just isn't something they think about.
5.5.2006 1:21am
Sydney Carton (www):
"I find somewhat offensive the suggestion by many on this thread (not yourself) that humans are so inherently immoral, so weakly constrained by personal notions of propriety, that in the absence of government coercion, we'll regress into ravenous sex-crazed animals."

You don't get it. In the absence of government coercion, there will be coercion of the mob. People would not permit public sex acts to be performed with impugnity. There would be vigilantism of the highest order in policing against these sort of things. And eventually, if the government kept permitting this sort of thing, the people would force a ban into law or rebel against the government so depraved to permit it (a government so depraved to permit this sort of thing would probably be on the brink of collapse anyway).

We don't need government coersion to prevent ALL of us from becoming sex animals. This kind of thing is to stop the predators, and the extreme perverts out there. And it's probably to protect THEM from being torn limb-from-limb by a mob who would refuse those people from corrupting the rest of society into their perversity. These people should be GLAD that the government bans this stuff, because if it didn't, they'd be subject to the harsher justice of public wrath.
5.5.2006 1:28am
Perseus:
Apparently, the spirit of Diogenes is alive and well.
5.5.2006 1:30am
JB:
GW 3L: Yes, I meant Opprobium. Thanks for the correction.

And as to your example, doesn't "captive audience" fall under harm? There's lots of stuff that I can't avoid that doesn't bug me.
5.5.2006 1:31am
GW 3L (or I was until 9:30 this evening):
I think I get it now. It's not that we're so immoral that we'll all start screwing in public; it's that we're so inherently immoral that we'll start murdering people who do so. I guess the people who want to have sex in public ARE lucky that these laws are in place to protect them from the likes of you and me.
5.5.2006 1:33am
GW 3L (or I was until 9:30 this evening):
JB:

Reading your post quickly, I missed "harm", so captivated was I by "yuck" and my chance to flex my vocabulary muscles. You're correct, of course.
5.5.2006 1:40am
Alan K. Henderson (mail) (www):
As a strict constructionist, I find the First Amendment irrelevant. Speech is spoken information. Public sex is not speech. There is no constitutional freedom of expression, because "expression" can mean any public or private act, from bombing a Federal building to selling lemonade on a street corner.
5.5.2006 2:44am
U.Va. 1L (mail):
As a strict constructionist, I find the First Amendment irrelevant.

That's certainly the most interesting "strict construction" of the First Amendment I've ever seen.
5.5.2006 3:32am
Eugene Volokh (www):
Alan K. Henderson: So a ban on movies, photographs, or other pictures that express antigovernment views would be constitutionally permissible? Likewise with a ban on handwritten letters that criticize the government, since they are neither "spoken information" nor "press"?
5.5.2006 3:41am
Gil (mail) (www):
For those who don't see a problem enforcing common notions of "yuckiness" as a matter of public policy should read this article and decide whether or not they agree with Leon Kass' "Wisdom of Repugnance" theory that leads him to oppose not just human cloning, but also dissection of cadavers, organ transplantation, etc.

It seems clear to me that Professor Somin's policy guidelines make much more sense.
5.5.2006 4:38am
logicnazi (mail) (www):
Lots of people seem to be jumping out to say that public displays of sex are going to cause all sorts of harm, particularly to the children. Now if you just mean that this is going to mean they are going to have more sex then it is a purely moral concern that I will discuss below but many people are asserting that it will make sexual predation, teen pregnancy and other universally agreed upon harms significantly more likely.

However, this is an empirical question. We can go out and test it with studies and similar methodology (I find it interesting that people seem to know that it is a harm before doing the research...suggests that the real issue is yuck/moral disapproval and this comes secondarily). Also if your justification for banning public sex/nudity is the great harm it will cause you should have no problem granting nudity/public sex at least some reasonable level of constitutional protection. In those cases where we have good reason to believe it will cause harm the government has a case for a strong governmental interest.


The other thread in opposition seems to be purely moral backlash. Some people seem to have a fundamental belief that outside of certain very narrow strictures sex/sexuality is deeply bad. Now of course it is pointless to try and argue this point but once you draw back to just saying it is immoral any justification for government action on the matter ends. It is no different than the demand by the muslim groups that one not display the cartoons. According to them allowing mohammed to be displayed was just not something that a decent society did.

So if this is your position I don't see how you can consistantly claim the government ought to be enforcing these laws. How would this be any different than the government enforcing laws that prevented insults to christ given the huge percent of christians in the country?
5.5.2006 7:20am
Daniel Chapman (mail):
One theme I've noticed among some more, um, "hardcore" libertarians is that they often turn "the government" into some sort of abstract concept when considering the enforcement of moral standards. It's not the big bad "Government" that is saying you can't have sex in public. It is THE PEOPLE. "The Government" is merely the method we've chosen to enforce the rules we've chosen.

If you want to be able to start humping like bunnies in the park, you're going to have to either point to a provision in the Constitution or find a judge willing to make one up. Scare tactics about a coercive "big brother" who's infringing in your "liberty" carry absolutely no weight outside of your own (very, VERY small) group.
5.5.2006 8:28am
ficus:

How would this be any different than the government enforcing laws that prevented insults to christ given the huge percent of christians in the country?

A ban on an act that is immoral in the eyes of the world at large is not legally problematic in the way that a ban on an act that is immoral only in the eyes of adherents of a particular faith would be. Christians themselves, by the way, make this distinction, at least sometimes and at least in practice. So do Jews. So do many Muslims, and the recent actions of Muslim extremists are an aberration.
5.5.2006 8:49am
Mr. Mandias (mail) (www):
Reasons #1-5 libertarians will never get anywhere in this country. Whenever I start getting tempted by their ideas, something like this happens-I'm told that it should be perfectly legal for someone to do some S&M outside an elementary school, or go down low on the sidewalk in front of my house, or fisting in a park where I've taken my kids to play.

But wait, it gets better--this isn't a legal issue, its a moral issue. I'm actually immoral! for not wanting to see this stuff, or my kids either.

Are there any of these purist libertarians who are adults? with kids? Just wondering. I actually kind of hope there aren't.
5.5.2006 9:48am
jack brennen (mail):
To the libertarians above, don't answer if you don't want to, but do you vote Republican?
5.5.2006 10:36am
Mr. Mandias (mail) (www):
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. But our society wasn't built on libertarian assumptions and it doesn't work very well to shoehorn libertarian assumptions on to it now.

Hell, maybe I've just got the answer to the question. Its OK to regulate public nudity, urination, public sex and what not because we have a society founded on an implied mutually restrictive covenant not to do such things.
5.5.2006 12:16pm
Michael Lopez (mail):
Everyone who keeps bringing up the cartoons seems to be missing a vital point:

There's absolutely nothing wrong with Muslim governments banning images of Mohammed in their own damned countries.

There's something wrong with Muslim governments saying that we can't have the cartoons in the United States because this isn't their country. (The Muslim government's, that is.)

Likewise, if America decides to outlaw hopping on one leg... well, guess what? Hopping on one leg would be illegal. And that's fine. Amend the Constitution if there's some legal impediment to it... but the fact is that a society has a right to self-determination.

That's right: a society has that right. Not just the individuals in the society.

And if society doesn't want to see people copulating in the streets, then bully for them. If a particular state wants to allow it, and another wants to ban it... bully for them.

Our Constitution gives us certain freedoms -- but if you redefine "speech" to mean "activity" you've gutted the very power of society to regulate itself. After all, what is theft but some alternate type of expression -- specifically, an expression that you feel you deserve something more in life? Why is that not OK?

The answer is it's not OK because society says it's not OK. There's no reason that personal property rights should necessarily trump someone's "right" to steal... except that we say so. It doesn't matter if that fiat, that ipse dixit, comes from religious teachings, philosophical reflection, or just caprice.
5.5.2006 2:44pm
Clayton E. Cramer (mail) (www):

I think I get it now. It's not that we're so immoral that we'll all start screwing in public; it's that we're so inherently immoral that we'll start murdering people who do so. I guess the people who want to have sex in public ARE lucky that these laws are in place to protect them from the likes of you and me.
I rather doubt that decent people are going to murder you for having sex in a public place. I think a bucket of cold water (what used to be done to stop dogs from humping) would be sufficient.

Now, some of the rest of the libertarian utopia (guys masturbating on the school grounds) might get a violent reaction.

Look, if you really don't like behaving like a responsible adult, you can always move to San Francisco, or live at a law school, and no one will say a word of criticism. Just don't have sex with animals in public. At that point, those very liberal sorts will suddenly get all self-righteous and indignant about it--for no reason that I can figure out.
5.5.2006 5:40pm
Clayton E. Cramer (mail) (www):

Are there any of these purist libertarians who are adults? with kids? Just wondering. I actually kind of hope there aren't.
My experiences as a Libertarian Party activist about 20 years ago was that most activists were pretty rational; a small number of purists were suffering from "I'm so smart that I can prove that red is the same as green, and I won't get run over when I cross the street on a red light (which is really green)." I also noticed that the more rational activists were a bit older, and more likely to have kids.

It is quite interesting how people tend to get more pragmatic as they get older; liberals often become moderates; libertarians get more conservative. An ounce of experience is worth a pound of theory, except in the academic community, where experience is worthless.
5.5.2006 5:46pm
Alan K. Henderson (mail) (www):
So a ban on movies, photographs, or other pictures that express antigovernment views would be constitutionally permissible?

I don't see anything in the Constitution that empowers Congress to regulate artwork.

Movies are arguably a form of press. They are literature recorded in a different medium. Since the advent of talkies, they almost always include recorded speech.

Likewise with a ban on handwritten letters that criticize the government, since they are neither "spoken information" nor "press"?

John Adams might agree...

Somehow, neither James Madison not George Mason were moved to enumerate in the Bill of Rights and the Virginia Declaration of Rights, respectively, a right to freedom of private writings. I think I know why. Historically, tyrants who prohibit criticism of the government classify such activity as treason. Article III, Section 3 clearly states: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort" (emphasis added). Criticism ain't treason. And you can't run for national office without slamming a national officeholder (unless you're an incumbent).
5.5.2006 5:54pm
Clayton E. Cramer (mail) (www):

For activities once banned primarily due to the "yuck" factor, you can add autopsies to the list, and probably a few other medical procedures that I'm having trouble remembering.
Should public autopsies be allowed? I think it qualifies as "expressive conduct," just like burning a flag. Besides, you can cut off the corpse's head, put it on a pole, and march it down the street singing "La Vie du Boheme," while blood drips down. And all the law professors and the ACLU can gather around to congratulate you on your willingness to work towards a civilized society where laws only regulate actions that cause direct harm.

And here's the saddest thing of all: Professor Volokh thinks of himself as being slightly right of center. For a law professor, I think he is. What does that tell us law schools?

Perhaps it's time for the villagers to light their torches, and storm the castle, before they finish turning Volokh's Monster into something that is self-mobile, and sits on the Supreme Court.
5.5.2006 5:59pm
Clayton E. Cramer (mail) (www):

That's right: a society has that right. Not just the individuals in the society.
I could actually buy into the argument for individual rights that is being advanced in these threads if this anarchist view were consistently followed. But most of the crowd that wants no restrictions on sex in public places, or public nudity, or sex with children, gets quite insistent on majority rule when it comes to funding AIDS research and treatment, or gun bans, or welfare programs, or antidiscrimination laws (especially with respect to sexual orientation). That's where I get a bit sensitive, because it shows that the goal isn't freedom in the abstract, but freedom to do what these individuals want--and no interest in it for anyone else.
5.5.2006 6:10pm
Ming the Merciless Siamese Cat (mail):
Jeez, the answer is obvious. Banning so-called expressive public nudity and fornication does not violate the constitution because it is a permissable content neutral 'time, place and manner' restriction.

The speaker is free to convey whatever message he wishes, however, regardless of the message, he cannot express it by striping off his kit or engaging in public copulation. Such a ban survives judicial scrutiny because it (i) serves an important objective not involving the suppression of speech (public decency, prtoection of children, asthetics, involuntary arousal, etc.); (ii) is narrowly tailored (so long as you're clothed and keep your gentitalia to yourself, no problem); and still permits alternative means of communication (handbills instead of handjobs).
5.6.2006 2:27am
logicnazi (mail) (www):
Ming,

No it clearly is not content neutral for the same reasons that the court determined that laws banning words like 'fuck' from being displayed in public were not content neutral. You are just not expressing the same thing when you say, 'I like being nude' as you are when you are walking around without clothes. The problem with your definition of content neutral is that it is hard to see how it protects anything but a written essay. I mean presumably the government could simply ban any movie theater from showing a movie which showed people kissing or getting into bed together. After all on your notion this is a content neutral time, place and manner restriction.


Also it amazes me that there are commentaters on this board who are so smug and unthoughtful that they are hoping people who think the government shouldn't regulate public nudity don't raise kids (as if they didn't have plenty of stupid view and prejudices). I mean do these people really think that kids who grow up in europe and see breasts on TV are horribly harmed? Or that people who grow up in cultures which allow women to wander around topless or are otherwise casual about sex/sexuality somehow end up fucked up (for reasons other than the fact that more puritanical cultures are in charge)? At the very least don't they think they ought to at least have evidence about the harm of nakedness or seeing sex to children before they smugly dismiss people more thoughtful than they are?
5.7.2006 6:05pm
Mr. Mandias (mail) (www):
I'm with you, Ming, but Mssr. Logicnazi is correct that the Court isn't.
5.8.2006 10:53am