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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.

Jody (mail):
I don't see how Eugene's argument would justify forbidding the state to ban offensive public speech

But the state does ban offensive public speech. See FCC &Stern. That same entity bans public nudity - see FCC and Janet Jackson.

That suggests that they derive a high degree of utility from their activities - possibly enough to outweigh the disutility to others caused by yuckiness.

Or that they're just selfish.
5.5.2006 2:43am
Artemis (mail):
I asked this question in the other thread, but perhaps you'd respond to it here? Does your argument that public sex should not be banned apply as well to public masturbation? What if some man walks onto a playground at a park and starts masturbating while staring at my four year old daughter? Is that a "no harm" activity?

Come to think of it, public sex between two persons might also be a vehicle of some sort of predatory intentions toward children, might it not? Don't pedophiles often show their child victims adult pornography?
5.5.2006 2:46am
honeybadger (mail):
I'm suprised no one brought up the simple matter of public health and hygiene concerns. If it's acceptable to outlaw spitting, urinating, and defecating in public to prevent the spread of disease, surely it isn't a stretch to think other body fluids should be kept to oneself.

For what it's worth, all the sex parties I've ever been to have a "no naked people around the buffet" rule. Makes sense to me!
5.5.2006 3:08am
Cornellian (mail):
The unwanted arousal concern would never be an issue in practice. The people who will be out there having sex in public if that were legal will not look like Jennifer Garner and Brad Pitt. They will invariably be the sort of people you desparately do NOT want to see naked, let alone having sex.
5.5.2006 3:13am
Ilya Somin:
Does your argument that public sex should not be banned apply as well to public masturbation? What if some man walks onto a playground at a park and starts masturbating while staring at my four year old daughter? Is that a "no harm" activity?

Yes, I see no reason why the argument doesn't cover masturbation. As for the case of the 4 year old daughter, I answered a similar hypo on the other thread. There are many public activities that might cause offense to children or their parents. The proper way to handle them is social pressure and opprobrium, not jail time. Personally, I think it's much worse for children to be exposed to, say, a Nazi march than for them to see a man masturbating.


Come to think of it, public sex between two persons might also be a vehicle of some sort of predatory intentions toward children, might it not? Don't pedophiles often show their child victims adult pornography?

I highly doubt that very many pedophiles recruit victims by engaging in public sex. But if a given instance of public sex really is part of a conspiracy to ensnare children into the clutches of sexual predators, then it certainly can be criminalized under my "harm to third parties" exception. Indeed, it would be a VERY easy case for the theory.
5.5.2006 3:13am
Kevin Bryan (mail) (www):
Even libertarians think we should be able to ban "yucky" things in a common space. The reason we allow nazi marches and "fuck the draft" T-shirts is because they have a speech function as well, and the "good" of free speech being inviolable outweighs the "bad" of yuckiness. Even beyond yuckiness, government certainly ought maximize "social pleasure" in the commons in areas where it doesn't create some deontological rights problem.

We don't allow anyone to do anything in a common. If I wanted to play football in a busy street, eventually the cops would collect me and suggest that there might be a more suitable location. Indeed, if I were to play soccer on a busy outdoors pedestrian mall, causing other walkers to go out of their way to circumvent my game, it's not beyond the power of government to remove me from that location.

As for the public handholding - if mores were such that a majority thought that offensive to see in a common, and would go out of their way to avoid seeing it, it would be justifiable for a government agent to prevent the handholding. I think this is a quite a stretch for examples dealing with modern Western society (indeed, one sees handholding in Teheran, so it might be a stretch even outside that bound!).
5.5.2006 4:08am
DoubleDownRob:
I cannot describe to you how badly i want to go back to high school and have public sex/nudity as a Lincolin Douglas debate topic, if only so i can give the argument that the utility derived from public sex outweighs the utility of prohibiting that behavior. JS Mill strikes again!
5.5.2006 5:59am
logicnazi (mail) (www):
On the pedophile hypo above I think the concern here is the implicit threat and directedness of the action. The law ought not to prevent public nudity/sex perse but it *should* prevent harrasment, threats and stalking (sexual and non but because of the stronger impact of sexual harrasment it is acceptable to give stronger laws). Thus it is one thing if you are having sex in the bushes or masturbating on the park bench another if you are delibrately following someone around while you do it.

I mean as scary as these hypotheticals are quite similar situations are possible today. I mean what now prevents a guy from sitting in the park obviously reading playboy (no nudify on cover) and leering openly at your 4 year old daughter. Or even more extreme reading a book/pamphlet obviously arguing that child molestation should be legal and doing the same. These behaviors are similarly awful yet somehow the free speech rights that protect these books or facial expressions aren't a problem now.
5.5.2006 6:46am
logicnazi (mail) (www):
As for the public harm point as I remarked in the other thread I think the unpleasentness it causes in bystanders is overrated. When there was a very unattractive naked women sprawled out on the street in berkeley people would just give her a kinda disgusted look and walk about their buisness. On the other hand the anger that political or religious speech can generate is huge.

Also one has to distingush people's reaction of eww and yuck from the real unpleasentness it causes. I mean people will PAY to see really gross things and tons of people navigate to rotten.com every day. Just because someone finds it disgusting and yucky doesn't mean they aren't also thrilled, titallated and entertained by it.

On another point I really don't understand why unwanted sexual arousal is supposed to be such a big problem. Usually situations that I get aroused from are actually kinda enjoyable. If it is arousing (at least visually) that means it is generally a pleasing sight.

However, the idea that random nude people around is going to arouse anyone but a very few fetishists is just silly. Naked people just aren't that arousing except in particular circumstances.

---

A question for Ilya. Do you think zoning certain areas like children's parks as non-nudity zones would be acceptable. So long as they are isolated spaces it wouldn't seem to reduce the expresive power of the nudists while it would reduce some of the more extreme anxiety such a law might cause (even though I think that in actuality few people are likely to go be nude in childern's areas)
5.5.2006 6:55am
logicnazi (mail) (www):
Oops, forgot to close tag hopefully this will fix the overspill. When someone gets around to reading this delete the duplicate of this post above.

On final short point.

On the limited question of whether or not nudity and public sex ought to get first ammendment protection we should be able to totally disregard any question of whether it causes any significant harm. If you believe that nudity ought only to be regulated because of the harm to society than you should be perfectly confident that an objective look at scientific and social evidence by a judge will determine that the government has a compelling interest in regulating nudity/public sex.

In order to justify denying nudity/sex first ammendment protection one needs to actually argue that it should require less harm to make nudity/sex illegal than other forms of protected speech. Otherwise you should be happy to leave the issue of harm to judges informed by scientific findings. I would suggest the reason we don't do this and most people aren't comfortable with this is because they are afraid that studies might show minimal harm and then it would have to be legalized.

--

In fact I think I'm willing to give in on the explicit masturbation in a chilren's park on this point. It should be illegal because their really is a great degree of extra harm that may enter (perhaps increased child molestation, almost certainly enraged parents getting violent etc..) and the restriction of not masturbating in children's parks seems narrowly tailored. Thus this should stand up even if nudity/sex gets first ammendment protections.
5.5.2006 7:34am
Positive Dennis:
Another question is this?

Why isn't the park private, owned by the subdivision association?


Positive Dennis
5.5.2006 9:15am
ifitdon'tfityoumustacquit:
I'll meet you half way and proposed that we just ban people wearing spandex in public!!!!
5.5.2006 9:39am
Mr. Mandias (mail) (www):
"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. "

Does it matter that the supposedly 'involuntary' reaction to flag burning is dependent on our ideas and political allegiances? Will a Nigerian get outraged over flag burning? Would a caveman? While I'm guessing both would have limbic responses to sexual displays.
5.5.2006 9:55am
InterestedAmateurorSomething (mail):
I don't make my living directly from working with the Law, so I'm not going to attempt to make any substantive additions to the conversation here. I just wanted to urge you all to look up the chapters on Disgust and the Law in Martha Nussbaum's recent Hiding from Humanity: Disgust, Shame and the Law. What this thread has chosen to call "yuckiness" Nussbaum refers to (more robustly) as Disgust. Nussbaum is stridently anti-utilitarian, so any talk of aggregate happiness would be out of place in considering her legal arguments; rather, she tries to construct a plausible account of the emotion in the language of moral psychology in order to understand its structural role in shaping individual human lives.
In particular, she argues that disgust has its root in a basic human fear of decay and death (which, she concedes, may indeed have had some evolutionary benefits); but that, by virtue of a mysterious process of contamination, we have a tendency to infect entities not directly related decay and death with those qualities. Because there is something profoundly arbitrary and resistant to reason about the contamination process, she argues, this emotion cannot serve as the basis for just legislation. Again, not the sort of account that's going to be of much use in the legal community, really, but still of some interest for closet humanists.
5.5.2006 12:32pm
Clayton E. Cramer (mail) (www):
Cornellian writes:


The unwanted arousal concern would never be an issue in practice. The people who will be out there having sex in public if that were legal will not look like Jennifer Garner and Brad Pitt. They will invariably be the sort of people you desparately do NOT want to see naked, let alone having sex.
I wouldn't be so sure of that. The only time that I have seen two people having sex in a public place (although under a blanket, which was hiding only their nakedness--there was no mistaking their actions)--they were both quite attractive. This was on a beach in California.

In any case, you need to make a law that handles both the worst and best cases. If the argument is arousal, then the best looking couple ends up being the worst case.
5.5.2006 3:49pm
logicnazi (mail) (www):

Does it matter that the supposedly 'involuntary' reaction to flag burning is dependent on our ideas and political allegiances? Will a Nigerian get outraged over flag burning? Would a caveman? While I'm guessing both would have limbic responses to sexual displays.


I don't think so. Why do you think it matters?

Besides, it isn't like people work so mechanically. If you have ever been to a nude beach it is clear that one can have a ton of nudity without causing any arousal. In fact I would argue that whether or not one gets aroused is just as much dependent on attitudes and inclinations (what you find hot). True it is less culturaly relative but so what?

A quick clarification about my point on judges deciding the issue. I didn't mean to say that judges don't rule on the question now but they seem to give public nudity laws the benefit of the doubt the way many people on this board want to do. Following the precedent in Lawrence judges should ignore any moral objection that nudity is just wrong and should evalute claims of harm from public nudity in a scientific evidence based fashion rather than accepting at face value the claims about how seeing nudity will harm children's sexual development.
5.5.2006 3:53pm
Julian Morrison (mail):
Seems to me that this comment is making a mistake of assuming no side effect. Whichever changed first, taboo or law, likely the other would fall soon. Meaning, it could well become the hot done thing to show off sex. Ugly people would stay home in shame. "Unwanted" arousal could abound.

Truly the idea of unwanted arousal amuses me. (using psychobabble for semantic clarity:) Why privilege the opinions of the superego over those of the id? Arousal means you want sex. Unwanted wanting is silly, it's a division against yourself. Imposition of unwanted wanting is trebly silly, and victim-mongery besides. Your psychological state is your own problem, so I see it.
5.7.2006 12:16am
kit:
I thought the purpose of the law was intended to uphold CIVILisation. I see that the legal profession now intends for it to be used to overthrow Western Civilization and revert to BARBARIANism or some other ism. Law professors nowadays are a bunch of termites.
5.7.2006 7:03pm