pageok
pageok
pageok
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.

John Herbison (mail):
What about the constitutional right to bare arms?
5.5.2006 1:07am
John Herbison (mail):
More seriously, with regard to the publicly visible video screen analogy, is Erznoznik v. City of Jacksonville still good law since City of Renton v. Playtime Theatres and Barnes v. Glen Theater? The reasoning of Erznoznik would tend to support constitutional protection of public nudity; however, I suspect that Renton and Glen Theater would control.
5.5.2006 1:14am
Maniakes (mail) (www):
Expressio unius est exclusio alterius. Explicitly including the right to bare arms excludes a constitutional right to bare other-body-parts not mentioned in the constitution. Unless you're willing to take the "penumbras and emanations" argument to absurd lengths.
5.5.2006 1:35am
Wintermute (mail) (www):
What is this, ratings sweeps week?

I got a video collection I could link to and make accessible only from the VC ;-) including one from the new fad, "doggin," i.e., sex in public places. It's hot, too. LMAO
5.5.2006 2:05am
James of England:
How is the physical response to expressive conduct different when the response is arousal to when the response is outrage? Both seem to me to result in hormonal, emotional and physiological responses that are partially involuntary, and that can hence be intrusive and troubling.
5.5.2006 2:08am
Gil (mail) (www):
I find it interesting that none of the comments in the other thread (as far as I noticed) mentioned unwanted involuntary sexual arousal as a reason to ban public nudity or sex.

I thus conclude that Eugene has manufactured this excuse to mask the actual reason (Yuck).

What's so special about sexual arousal that allows one to control other people's peaceful behavior? We don't typically give such power to allergies, for instance. Why is it more than the religious and social conventions against it?

Eugene, I don't recall...where do you come down on banning smoking in public (and in workplaces)? Smoking isn't politically important expression, and people have real, unwanted, reactions to that.

Any reason why those who react badly to smoke shouldn't control the yucky behavior of others?

If so, on what principle do you distinguish them?
5.5.2006 2:14am
Steve in CA (mail):
I think the commenters on the earlier post got way sidetracked with the constitutionality of public sex bans. Sure, it's constitutional to ban sex in public. But there are a lot of laws that are constitutionally legitimate, but still a bad idea. As a libertarian, I have a hard time coming up with a good reason to ban sex in public. I also have a hard time thinking of a good reason you shouldn't be able to show hard-core porn on network tv. And the idea that it harms children to see real or simulated sex acts -- well, that might be true, but I'm not aware of any evidence that it's true.
5.5.2006 2:36am
JB:
Maniakes: So you're suggesting a sort of Florida Taliban look? Veils, long pants, and t-shirts? The Beach Burka?
5.5.2006 3:07am
SLS 1L:
I don't find it very plausible that #2 is the real reason, or even a significant portion of the real reason, that people object to nudity and sex in public. If it were, we'd expect people to see public nudity as less bad when the nudist is unattractive. I doubt this is true - if anything, I suspect people see it as worse. Not even extreme unattractiveness, such as serious disfigurement due to injury or disease, would be a defense to a criminal charge for public nudity.

The same holds for sex acts people are unlikely to find arousing. I suspect the number of people who would be likely to be aroused viewing by male-male fellatio or really hardcore S&M sex is small. Yet most people would probably think public displays of those acts are worse, not better, than public PIV intercourse.
5.5.2006 4:27am
logicnazi (mail) (www):
This hormone argument is totally fallacious. I mean a demonstration that makes one very angry creates lots of chemical changes to your body that speed up your heart, makes your face red, etc.. etc..

In fact every act of speech is going to play with the chemical balances in your brain in ways you can't control. Just seeing the message is going to release neurotransmitters and all sorts of things. In fact the argument would actually work much better for anger or outrage because at least sexual arousal is usually a positive reaction and random sexual arousal doesn't exactly have horrible consequences.

Besides if this argument were to fly we should make tight pants, sexy shirts, bare midriffs and a hundred other sexy looks illegal. I mean the idea that people are going to get more aroused seeing naked people screwing in the bushes or a totally nude person than they do seeing young girls with tight jeans and a bare midriff or guys in stylish clothes is just silly.
5.5.2006 7:03am
Maniakes (mail) (www):
JB, yes, a law mandating the Florida Taliban look would be constitutionally sound under my theory. That would not, however, make it good policy.
5.5.2006 12:39pm
Clayton E. Cramer (mail) (www):
Steve in CA writes:


I think the commenters on the earlier post got way sidetracked with the constitutionality of public sex bans. Sure, it's constitutional to ban sex in public. But there are a lot of laws that are constitutionally legitimate, but still a bad idea. As a libertarian, I have a hard time coming up with a good reason to ban sex in public. I also have a hard time thinking of a good reason you shouldn't be able to show hard-core porn on network tv. And the idea that it harms children to see real or simulated sex acts -- well, that might be true, but I'm not aware of any evidence that it's true.
Do you suppose if you broadcast hardcore rape torture movies in the afternoon that it might have some influence on minors? Or do the television stations turn off the mind control rays when the commercials are over?

Reality won't fit your ideology, so reality will have to be discarded. Movies and television influence people, for both good and bad. That's why companies pay for "product placement" in movies. That's why the drink that Tom Cruise asks for in one of his recent movies caused a dramatic spike in demand for that drink. That's why the excessively detailed shower rape with an instrument scene in the movie "Born Innocent" provoked several copycat crimes against girls around the country. That's why media coverage of mass murders directly caused at least one copycat crime--to the point that the copycat traded one AK-47 for another, to get the same manufacturer as Patrick Purdy:
Police now believe Wesbecker had begun plotting the suicide rampage for at least seven months. Searching Wesbecker's house, police found a copy of a Feb. 6 Time magazine detailing mass murders in California, Oklahoma, Texas and elsewhere. A headline underlined by Wesbecker read
"Calendar of Senseless Shootings."

The major gun purchases were made between February and May.

Initially police thought Wesbecker was an ardent gun handler or paramilitary buff, but evidence indicates his interest in guns was relatively young.

"We have no information indicating he had a collection of guns, or was even interested in them before last year," said Lt. Jeff Moody, homicide investigator. "As far as we know he had no formal training in weapon use."
There are a disturbing number of examples that I have collected of child molesters using pornography as a method of encouraging children into having sex. Here's one example. And here's another.

And so you want to believe that children watching hardcore porn aren't going to be influenced to try it? You want to believe that child molesters won't use this to manipulate or arouse children? You would have to be an intellectual to believe something that absurd.
5.5.2006 1:27pm