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.
All Related Posts (on one page) | Some Related Posts:
- Unwanted Touching, Indecent Exposure, and Sexual Arousal:
- Smoking on Public Streets:
- Libertarianism and the Regulation of Public Space:...
- Involuntary Sexual Arousal and Touching:
- Should Public Sex and Nudity Be Legalized II - More Yakking about Yuck.
- Public Nudity and Public Sex, Beyond the Yuck:
- Should Public Sex and Nudity be Legalized?
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.
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?
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!
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.
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!).
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.
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.
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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)
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.
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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.
Why isn't the park private, owned by the subdivision association?
Positive Dennis
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.
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.
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.
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.
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.