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Yuck, Public Spaces, and Urine:

Apropos my suggestion that even libertarians might allow some regulation of offensive behavior in government-run spaces, simply because it's offensive, what do people think about laws banning public urination? As best I can tell, urine is usually mostly sterile. Sometimes it's not, but I suspect that on balance public urination is probably no more of a public health threat than, say, sneezing without covering your mouth. (Assume that in either case you're not urinating or sneezing directly on someone else.) It's banned, I think, largely because it smells yucky, and (less importantly) because it's perceived as yucky even setting aside its smell.

If I'm right on the public health point, does it follow that laws against public urination are improper?

Jim Anderson (mail) (www):
It also involves a minimal level of genital exposure, and I suppose is a nuisance to clean up after.
5.5.2006 11:40am
PersonFromPorlock:
Eugene, just a thought but primates very generally (monkeys and apes, Africa and South America) use a display of male genitals as a means of conveying hostility. Could it be that laws about public sex and public urination have more to do with a hostility aroused in us by an incidental display of genitilia, than with their ostensible purposes?
5.5.2006 11:42am
jack brennen (mail):
I've always wondered why it is legal for people to let their pet dogs urinate in the park, but I'm not allowed to. Is it just because there aren't enough dogs to make the place stink, while there are enough people?
5.5.2006 11:44am
eddie (mail):
Unless meaningful access to public facilities is provided, criminalizing same is unreasonable. And labelling such behavior as a sex crime . . . would be a travesty.
5.5.2006 11:49am
Thomas J. Webb (mail) (www):
Public urination is a form of littering and just as many people get away with doing it on the side of the road.
5.5.2006 11:51am
Ted Frank (www):
They're not just improper, but unconstitutional in the Ninth Circuit, unless government provides adequate public toilets, if one is to believe Jones v. Los Angeles.
5.5.2006 11:53am
Londo (mail):
I agree with Thomas J Webb, it's a form of littering, and the laws that govern littering should also govern urination.

(Assuming your assertion about the health thing is accurate.)
5.5.2006 11:54am
David Sucher (mail) (www):
I am a bit surprised that even the dreamiest libertarian might argue against laws which define public urination as a nuisance and are "improper." (That's what it would be, right? A "public nuisance?') Do any? Or are you simply offering them up the only possible group which might make such an argument?

As to the objective impact, I wonder about your facts. Sure maybe one guy urinating in one spot might be ok and not cause a health problem. But I think that there would be (have been) true public health hazards should one spot become used by many. As well, defecation is associated with urination and clearly there is an undeniable health issue.

It's funny but I have never felt as if my liberty was unduly abridged by custom and law which prohibit public urination. Of course I may be an eccentric.
5.5.2006 11:55am
Sydney Carton (www):
In general, this entire series of posts confirms my long-held belief that libertarians have no respect for anything relating to the common good, which is why they will be forever marginalized politically.

"Vote for X. He would abolish laws prohibiting sexual predators from masterbating in front of your 4 year old daughter!"

Only an intellectual could be so stupid.
5.5.2006 11:57am
Ken Arromdee (mail):
If I'm right on the public health point, does it follow that laws against public urination are improper?

No, because you're wrong on the "governments shouldn't ban yuckiness" point.

There are cases where we don't think the government should ban yuckiness. But these are just specific cases and don't generalize to *all* yuckiness. They include:

-- when the yuckiness is associated with speech. In this case, you might be able to argue that someone could publically urinate as part of a politicial protest, but not just because they needed to take a piss. You could also require that anyone who publically urinates as part of a political protest do it in such a way that there's no smell remaining once the protest is over (for instance, urinate into a bucket rather than on the ground).
-- when banning the yucky act may make it hard for people to have a normal life, or is one of a group of bans that cumulatively have this effect. Thus, we shouldn't prevent same-sex couples from holding hands in public even though some find it yucky. Of course, this is a judgment call; we've decided, as a society, that not being allowed to hold hands falls into this category, but not being allowed to piss doesn't.
5.5.2006 12:00pm
Ted Frank (www):
In my case, I'm not interested in legalizing public urination; I prefer a society without it, indeed, a society that enforces those laws more stringently than most of the US does. But I find it an interesting challenge to libertarian philosophy, and I find this a useful discussion to determine the mechanism by which one can ban things I don't like like public urination and public sex, while at the same time protect things I do want to protect but others may not, such as South Park episodes or public hand-holding.
5.5.2006 12:01pm
speedwell (mail):
I'm rather prone to urinary infections. I wouldn't care to potentially inflict them on anyone else by distributing my bodily fluids carelessly about the landscape.

I live in Houston. Fortunately, I was not caught in the miles and miles of stopped traffic when everyone was trying to get out of town before Hurricane Rita last year. But if I had been, I'd have been in a bad way with respect to my bladder. After the hurricane, I purchased a folding portable camp toilet that accepts bags, the sanitary gelling powder to put in the bags, and a camp shower enclosure that is easy to set up. Voila, perfect sanitary privacy. I keep these things in my car trunk and I never have to worry about the lack of facilities again.
5.5.2006 12:08pm
Mr. Mandias (mail) (www):
I think Mr. Volokh is mostly right about the health risks of public urination. The reason urine is mostly sterile is because it acts as an antiseptic. As far as I'm aware, most diseases that get passed via contaminated water get passed through fecal matter, and while STDs may survive in urine (truthfully I have know idea), I doubt that anyone can contract STDs from urination.
5.5.2006 12:09pm
Taimyoboi:
"No, because you're wrong on the "governments shouldn't ban yuckiness" point....But these are just specific cases and don't generalize to *all* yuckiness."

I fail to see how this distinction can be boiled down to a principle other than these are what I find personally not yucky and yucky.
5.5.2006 12:12pm
Taimyoboi:
Seems to me that if you start from the premise of allowing anything in the public sphere so long as it does not harm anyone else, then there really is no principled distinction you can devise that would allow you to exclude some types of harmless actions (like public sex or urination).

Perhaps it's not the logic flowing from the premise, but the premise itself that is wrong.
5.5.2006 12:16pm
Ken Arromdee (mail):
I may add that Eugene seems to be arguing from a false dilemma, that we either ban all yucky activities or we allow all of them. So either we ban all yucky activities, such as public nudity, public urination, public handholding by same-sex couples, public smoking, and Nazi marches, or we allow them all. This is fallacious; those aren't the only two possibilities. n(Eugene does mention arousal, but then dismisses it. Of course the real reason is not arousal.)

Some commentators have tried to generalize this by pointing to degrees of yuckiness, but that encourages others to claim they find Nazi marches yuckier than urination, and it's still a false (tri)lemma.
5.5.2006 12:18pm
Ken Arromdee (mail):
I fail to see how this distinction can be boiled down to a principle other than these are what I find personally not yucky and yucky.

You don't think freedom of speech is a principle?
5.5.2006 12:19pm
Mr. Mandias (mail) (www):
Most libertarians would be fine with me and my friends dividing up the land in a virgin territory with restrictive covenants or what not against urinating in public spaces. Except that we probably wouldn't do it because it would never occur to us that anyone would do it. Same with the strutting around naked and masturbating in public and all the rest. Would a libertarian be OK with an implied restrictive covenant? Maybe not, but I don't see why not.

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., to take care of those problems. But our society wasn't built on libertarian assumptions and it doesn't work very well to shoehorn libertarian assumptions on to it now.

Maybe what you have to do, if you're libertarian, is to conceptualize America as a 'property' that was subdivided with implied mutually restrictive covenants against public sex, public urination, and so on. I actually think this wouldn't be far from the truth, but I don't know if it would satisfy most libertarians, who, unlike the contributors to the conspiracy, seem more interested in certain kinds of outcomes than they are about the logic that gets you there.
5.5.2006 12:23pm
Clayton E. Cramer (mail) (www):
Sydney Carton writes:

In general, this entire series of posts confirms my long-held belief that libertarians have no respect for anything relating to the common good, which is why they will be forever marginalized politically.
I couldn't have said it better myself. The difficulty with libertarianism is that in its purist form, libertarian ideas acknowledge nothing but direct physical injury or the threat of it as legitimate areas for criminal laws.

This sounds so good, until you live in a place where this is actually the situation, instead of the pipe dream of a middle class intellectual sitting in a comfortable office, surrounded by faculty and students who largely operate under middle class standards of decorum. It is pretty clear that in many parts of San Francisco, public urination is no longer a crime. I used to walk down from the Hastings Law Library to the McDonald's on Market Street for lunch.

Here we had the full implementation of libertarian ideals: a couple of blocks where the smell of public urination was so strong as to be not just unpleasant, but something to make you want to gag. Mentally ill people were pushing shopping carts with all their earthly possessions, muttering and sometimes yelling to themselves and invisible persons. They had not actually yet killed or raped anyone--which seems to be the minimum required in California before a mentally ill person is hospitalized against their will. (That's not what the law requires, but Welfare &Institutions sec. 5150 and 5250 were, at least when I left in 2001, not really enforced.) Here were old men living on the street, often with great fear in their eyes, filthy, unkempt, malnourished, begging for money with which to buy more alcohol or pot.

Large numbers die every year of pneumonia, freezing, or violence. A few were violent but petty criminals, engaging in muggings, robberies by intimidation, and occasionally, something more serious, such as the homeless man who was slitting the throats of others who were homeless. When arrested, he explained to police that he was a 2000 year old vampire, and they couldn't kill him. He had already been convicted of an incident in which he took out someone's eye with a bow and arrow, and was simply told to report to a half-way house for the mentally ill, but this being San Francisco, no one bothered to see if he had done so.

Where I lived in Sonoma County, there was a man who camped outdoors with his dog. He showed up at our church, and the pastor, who knew that I had a mentally ill brother, suspected that there was something wrong with this guy. (I think his name was John.) Within five minutes of talking to John, it was apparent that he was mentally ill, probably schizophrenic. He was ranting about a government conspiracy to take away his children--and he was so mentally ill that he did not even realize the papers that he was showing me. They were the papers that terminated his parental rights. Why?

The mother of the children had already gone into a mental hospital. John was raising a three year and a five year old. John's parental rights had been terminated because he was showing pornographic movies to his children, and then molesting them. Yeah, there might well have been some dark conspiracy, but John was so far gone that he handed me these papers and made no attempt to argue that they contained lies about his behavior.

So why was this guy outside? I suspect that the district attorney had decided that it would difficult to win a criminal case against John, on the testimony of two small children, and it would be traumatic for them to have to testify. This was probably a good call on the DA's part. But why was there no attempt to hospitalize him under W&I sec. 5250? Psychiatrists with whom I spoke told me something that the case law on W&I sec. 5150 and 5250 suggest: California judges, in large numbers, have bought into the notion that One Flew Over The Cuckoo's Nest was a documentary.
5.5.2006 12:25pm
Joel B. (mail):
Paul just bats 1.000 at this, the last couple posts just scream "because that, knowing God, they glorified him not as God, neither gave thanks; but became vain in their reasonings, and their senseless heart was darkened.

22 Professing themselves to be wise, they became fools"

When you tear down God and traditional Biblical morality, you end up arguing over whether or not laws against public urination are proper. What a fun world to live in?!

It's banned, I think, largely because it smells yucky, and (less importantly) because it's perceived as yucky even setting aside its smell.

Because it's "perceived" to be yucky? Let's try this, it's not perceived to be anything...It is revolting to pee in Public, (let's hold aside the hiding behind a tree while desperate).

How about this Taimyoboi, we'll ban whatever the majority of us think is revolting...Fair? Welcome to democracy. Now you have your choice set before you...Libertarian Utopia, where someone groping your daughter is just the same as patting on the back "Why are genitals so special?" And people having sex in the roadway or whatever are "speaking the truth to power."

OR we can go into the dreadfully repressed world of democracy where, I can get together with a majority of my community and declare X illegal precisely because it's yucky or revolting or whatever. I'd take that repressed democracy anyday.

Of course we have to do away with the whole idea of defecating in a sanitary way because that's found in Deuteronomy, and we can't have people imposing their religion on us! That would be really bad. What's next you might not be able to copulate in public! Horrors!
5.5.2006 12:25pm
Mr. Mandias (mail) (www):
Urine discolors buildings, right? But is this unsightly change in color anything different than a 'yuck' factor? Frankly, how do libertarians justify rules against littering in public spaces, if the only reason to dislike litter is aesthetic?

Is urine corrosive? Maybe it erodes buildings, sidewalks, and asphalt. Is urine bad for vegetation (I know it mostly helps, but too much nitrogen starts killing things)? Can public urination lead to health-endangering levels of ureic acid or whatever it is in urine?
5.5.2006 12:26pm
Taimyoboi:
Ken,

I never said freedom of speech was not a principle. What I did suggest was that there was no principled distinction between the "all yuckiness" you refer to, and the specific ones of public urinating and gays holding hands.

I can always claim that anything I do that you find yucky is a type of expression or speech, and therefore entitled to constitutional protection.
5.5.2006 12:28pm
mlle glass (www):
urin smells bad and, when freely flowing in public spaces, can get into the water, which is unsanitary. the bad smell and stains also lower property value. waving genitals aside, that is reason enough for me.
5.5.2006 12:32pm
U.Va. 1L (mail):
I'm all for the traditional Biblical morality, Joel, so long as all of it is followed. None of this half-assing it and ignoring, say, the bit about how you're supposed to have your obstinate sons stoned to death.
5.5.2006 12:37pm
Taimyoboi:
"None of this half-assing it and ignoring, say, the bit about how you're supposed to have your obstinate sons stoned to death."

U.Va. 1L,

My suspicion is he was referring to New Testament Biblical morality. The kind about hating the sin, not the sinner.
5.5.2006 12:40pm
Clayton E. Cramer (mail) (www):
Joel B. writes:

How about this Taimyoboi, we'll ban whatever the majority of us think is revolting...Fair? Welcome to democracy. Now you have your choice set before you...Libertarian Utopia, where someone groping your daughter is just the same as patting on the back "Why are genitals so special?" And people having sex in the roadway or whatever are "speaking the truth to power."
Does anyone think that this debate would even be happening if it weren't for homosexuals looking for a way to justify striking down the laws against having sex in public places? For several centuries, we seem to have operated without any significant debate that some things are not okay to do in public:

1. Urination.

2. Defecation.

3. Sex.

4. Masturbation.

5. Leaving dog feces on public property.

Now, suddenly, in the last few years, laws that have the general effect of making it tolerable to live in urban settings are up for debate--and for one reason: homosexuals have long argued that laws against sex in public places are unfair to them. I was startled to see that the Massachusetts Supreme Judicial Court, a couple of years before it imposed same-sex marriage, ruled that homosexuals having sex in the bushes behind a rest stop could not be prosecuted for that, because not having marriage available to them, they lacked the opportunity to have a stable home environment. (Yeah, if you aren't married, you can't take someone back to your apartment for sex after picking them up at a rest stop restroom.)

This isn't a one-time event. As I pointed out here, quoting from Newsday:
East Hampton Village officials and gay leaders resolved yesterday to meet regularly and address fears that homophobia is jeopardizing a local beach.

In response to angry criticisms voiced yesterday at a public forum, police Chief Gerard Larsen said he will confer with the district attorney's office to see whether he can legally stop a private security firm hired by homeowners from videotaping and monitoring Two Mile Hollow Beach. Meanwhile, the East End Gay Organization is creating a task force to meet with police biweekly.

The organization called for the two-hour forum after the Further Lane Association, an organization of homeowners who live near the beach, hired Superior Group of Sag Harbor to monitor and videotape Two Mile Hollow in early June for public sex, public urination and trespassing. The beach has been a popular meeting place for gay men for more than 50 years.

The firm threatened to make civilian arrests, prompting Larsen to alert the East End Gay Organization before sending four plainclothes village officers to monitor the beach on June 13, resulting in the arrest of three men for public urination and two others for oral sex. No one was targeted because of sexual orientation, Larsen has said.
And here, quoting the New York Times:
Andrew Friedman, 44, a real estate agent from Brooklyn walking his German shepherd, Beethoven, on Tuesday evening, called the crackdown another example of the historic persecution of gays.

"It's an insult and it's annoying and it's been going on through the centuries," he said. "Until they put us on a train to Buchenwald, my lifestyle's not going to change."
Why is it that we have to change not just individual laws, but construct an entire new theory of what constitutes inappropriate public behavior, just to make homosexuals happy?
5.5.2006 12:51pm
Taimyoboi:
Heh, more on Biblical Morality

You were right about stoning obstinate sons though.
5.5.2006 12:55pm
Taimyoboi:
"Taimyoboi...I'd take that repressed democracy anyday.

Joel B,

So would I. My posts were an attempt to criticize the other train of thought, not advocate for it.
5.5.2006 12:58pm
Reml (mail):
To build on Jack Brennen's comment, dog urine (as well as bum urine) is a major problem in parts of NYC where there isn't much grass. If you've ever walked down a cross street on the Upper West Side, you're likely to encounter the noxious smell of dog urine. Frankly, I think it's cruel and selfish to keep a dog in Manhattan both b/c of the lack of green and the small apartments, but as a Manhattan dog ban would likely be political suicide, we might just have to push for doggie diapers.
5.5.2006 12:58pm
Taimyoboi:
What do you know, the Bible even has an answer to public excretion:

Here.
5.5.2006 1:01pm
Sydney Carton (www):
Clayton: "The difficulty with libertarianism is that in its purist form, libertarian ideas acknowledge nothing but direct physical injury or the threat of it as legitimate areas for criminal laws."

Don't be so charitable. Libertarianism is a monstrous, demonic moral philosophy. Let me reiterate: it has become obvious in these series of posts that libertarianism has NO PROBLEM with a sexual predator publicly masterbating in front of a 4 year old girl.

You know from your experiences how twisted these theories are in practice. But to a well-rounded man, experience in these things shouldn't even be necessary. Unfortunatlely, it is painfully obvious that libertarians lack the most basic common sense, and probably the most basic morality.

But I take heart in the widespread fact that libertarians are rightly marginalized politically by the public, who could never succumb to such intellectual stupidity. Unlike libertarians, the people haven't lost their common sense or all morality yet.
5.5.2006 1:09pm
Eh Nonymous (mail) (www):
I was amused by Clayton's natterings.

If we just agree to make public urination a felony, we can imprison all the homeless! Whoops, can't do that. Have to find some other polite way to victimize them.

I think, given Sydney and Clayton's harsh statements about libertarianism, that we should be careful to avoid letting this thread degenerate...

...into a pissing contest.
5.5.2006 1:32pm
Tennessean (mail):
Sydney and Clayton, et al.: It strikes me that you are confusing a tentative exploration of a thing with a final assertion of its truth. No one, to my reading, has issued an edict that libertarians would be perfectly okay with "a sexual predator publicly masterbating in front of a 4 year old girl" -- instead, they have queried whether thinking about such issues will provide fruitful tests and insights into the problems we deal with running governments. To assert otherwise is, to my mind but uncharitable and incorrect.

Even if this wasn't just a thought experiment but instead a policy edict, surely you can conceive of a resolution to the libertarians' position that doesn't involve your conclusion? In other words, don't jump to a world of show-off pedophiles right off the bat (unless that is the world you'd like to jump to) -- maybe the problem is with responsibility for parents, or maybe the problem is an inherent problem of public space.

(Note: I've not studied libertarianism, and although I've got A, S, &U sitting around, I haven't had time to get more than 10 or so pages through the introduction yet.)
5.5.2006 1:32pm
Shangui (mail):
Libertarianism is a monstrous, demonic moral philosophy.

I'm reporting your to my Dark Lord!

Opps, gotta run. I've got some virgin sacrifices to perform to get Kelo overturned!
5.5.2006 1:34pm
Porkchop (mail):
Clayton Cramer wrote:

For several centuries, we seem to have operated without any significant debate that some things are not okay to do in public:

1. Urination.

2. Defecation.

3. Sex.

4. Masturbation.

5. Leaving dog feces on public property.

No real disagreement on 2,3, and 4, but apparently 1 and 5 are not universally condemned in western society. I would note, though, that when most people lived down on the farm and in smaller quarters, lack of privacy was more common and 2,3, and 4 were probably a good deal more common than we might think today.

Apparently, there is no problem with public urination in vast swathes of Latin America. It seems that a fairly common problem with recently immigrated Hispanic boys of elementary school age in my county is that they tend to take a leak on the closest wall during school recess, much to the chagrin of the supervising, usually female, teachers and their female classmates. The boys don't seem to mind as much . . . envy?

As to number 5, first, I refer you to France . . . with no further comment. Second, I would note that leash laws are a relatively recent innovation in most of the United States. Prior to their advent, dogs could roam at large and deposit feces where they chose. I think "several centuries" is an overstatement in this regard -- maybe 50 or 60 years in most of the US; leash laws became more common as the country became more urban.
5.5.2006 1:35pm
Clayton E. Cramer (mail) (www):
Sydney Carton writes:


Don't be so charitable. Libertarianism is a monstrous, demonic moral philosophy. Let me reiterate: it has become obvious in these series of posts that libertarianism has NO PROBLEM with a sexual predator publicly masterbating in front of a 4 year old girl.
Yup. In another comment thread, Steve in CA is making the libertarian argument for broadcasting hardcore porn. Of course, the same crowd sees nothing wrong with abolishing age of consent laws, with the ACLU arguing in Limon that there was a "due process liberty interest" that minors had in deciding whether to have sex with adults--in effect, setting up the argument that if an adult can persuade a child to have sex, hey! The Constitution protects that!

You know from your experiences how twisted these theories are in practice. But to a well-rounded man, experience in these things shouldn't even be necessary. Unfortunatlely, it is painfully obvious that libertarians lack the most basic common sense, and probably the most basic morality.
I think the core problem here is that libertarians suffer from the curse of the intellectual. Tey prefer beautifully constructed theories over the grubby reality of real human society.

But I take heart in the widespread fact that libertarians are rightly marginalized politically by the public, who could never succumb to such intellectual stupidity. Unlike libertarians, the people haven't lost their common sense or all morality yet.
Like Bertolt Brecht's famous remark about how the government might have to elect a new population, libertarians, if they ever got in charge, would soon discover that they needed to hire a new species to fulfill their fantasies. Unfortunately, because libertarians and liberals (with whom they share some strong similarities) control the federal bench and most law schools, they don't need to get elected! They just legislate from the bench.
5.5.2006 1:38pm
duglmac (mail):

Just because it's sterile before it exits the human body doesn't mean it stays that way. Urine attracts all kinds of, rodents, growths, etc that actually cause the health hazards. Anyone who hasn't cleaned the floor around their toilet in a few weeks knows how this works.

Ponder also why people wash their hands after using the bathroom.
5.5.2006 1:45pm
Gil (mail) (www):
Libertarianism is NOT a moral philosophy at all.

It's a political philosophy. It's not about what we want people to do, but about what we don't want the government to do.

Most libertarians react to sex, nudity, urination just as their neighbors do. They just want to keep the categories straight between what should be handled by armed agents and what should be handled by private people.

Many of the conservative positions expressed here can't be separated in principle from those advocating Islamic Sharia law. Some draw the line at women exposing their ankles; others choose navels, or nipples, or buttocks.

Why there? Well, because, umm, well because it's obviously revolting!

My problem isn't so much imposing social norms on public spaces (as long as important expression is protected). My problem is that public spaces keep growing, and defined more broadly all the time (into things like anywhere someone works, or anywhere there might be a child...).

Let's shrink public spaces, and let private people decide which norms they'd like to enforce on their own property.
5.5.2006 1:51pm
TravisW (mail):
Ken Arromdee - You assert that Prof. Volokh has presented a false dilemna, and that there are other possibilities. Would you (or anyone else) provide some? I am very interested in hearing some sort of principle as to when to make "yucky" behaviors illegal - is there some sort of percentage of the public? I suppose it is implicitly a majority based on the argument that in a democracy the laws (more or less) reflect the views of the majority. But there are exceptions, and I would like to know when they are justified. Would a community in which a majority of the people found same-sex hand-holding so "yucky" as to make it illegal be justified in doing so? I recognize that it is difficult to craft a principle that is unversally applicable, but I haven't really seen any attempts at doing so.
5.5.2006 1:57pm
Ken Arromdee:
I can always claim that anything I do that you find yucky is a type of expression or speech, and therefore entitled to constitutional protection.

If, as you suggest, it's not possible to distinguish between speech and non-speech, then we shouldn't have any special protection for speech at all.
5.5.2006 2:12pm
Freder Frederson (mail):
I wonder how Eugene would react if one of his students stood up in the middle of class and proceeded to pee on the floor of the classroom. That would truly be a test of his libertarianism.
5.5.2006 2:19pm
TravisW (mail):
Freder - Unless you think he would use government power in some way (call the cops to arrest the student, say), I'm not sure how you think that would be a test of his commitment to libertarianism. To the extent that his classroom is a quasi-public space, even if we had no laws against public urination social pressure and school rules would certainly be acceptable ways to deal with this.
5.5.2006 2:24pm
alkali (mail) (www):
Clayton E. Cramer writes:

I was startled to see that the Massachusetts Supreme Judicial Court, a couple of years before it imposed same-sex marriage, ruled that homosexuals having sex in the bushes behind a rest stop could not be prosecuted for that, because not having marriage available to them, they lacked the opportunity to have a stable home environment.

No, it didn't.
5.5.2006 2:27pm
msk (mail):
What do you do with the guy who claims he was "getting ready to ...," as he walked along the chain link fence of the school playground every morning? If it's OK for adults with lawyers, wouldn't it be even more OK for large groups of children who are only imitating adults, or, quite often, imitating movie stars?

Certain "wardrobe malfunctions," even if genuine, cannot be encouraged in front of audiences that may include children, because children may imitate behaviors that are easily misunderstood.

Try it at your next job interview.

And, for those of you who never spent any time in a shelter for battered women and their children -- we sometimes meet parents who never in five years thought to teach their little boys to aim. It's not cultural repression to teach people ways to avoid clean-up work, nor to tell them local customs so the cops won't need to teach them in jail.

(And please do not imagine that numbskull behaviors ever divide up neatly according to race or nationality, among shelter parents. The 5% of parents who act clueless come from all walks of life, several economic strata.)
5.5.2006 2:31pm
gabor (mail):
Urine is acidic and full of sugar. Thus it can corrode many materials (metals, concrete, although it can act as a preservative for wood) and may attract animals (i.e. ants) and smaller organisms that feed on sugars. Thus there are decent public use and health benefits to limiting the places where urine can be deposited.
5.5.2006 2:32pm
H. Tuttle:
>>Apparently, there is no problem with public urination in vast swathes of Latin America. <<

Perhaps this is further explanation for why vast swathes of Latin America are essentially basket cases. Robust economic develoment demands strict self-control and accountability. A society where "anything goes" has neither, and will suffer for it.
5.5.2006 2:38pm
Freder Frederson (mail):
Unless you think he would use government power in some way (call the cops to arrest the student, say), I'm not sure how you think that would be a test of his commitment to libertarianism.

Well, the whole gist of this ridiculous series of posts has been, "if it feels good, do it". And now he seems to be saying, "hey urine is clean, why can't we just urinate in public?". I'm sure he even makes the trip down the hall from his office when he needs to go. He doesn't just pee in the corner of his office. He is just putting up a ridiculous strawman. I sincerely doubt that he would want to live in a world where people could just whip it out and pee whenever and wherever they felt like it.

He is just being silly especially when he seems to be advocating all kinds of just revolting and rude behavior in public yet gets all bent out of shape by someone wearing a hammer and sickle t-shirt. What a strange world he envisions.
5.5.2006 2:39pm
Tennessean (mail):
Freder - that is not the gist of the posts. The gist is that there may be limits to what is fruitful for the government to forbid for any number of reasons. Perhaps private enforcement is more effective or efficient, or perhaps government enforcement is too cumbersome or difficult to check.

There is a long, long way from saying the government should not engage its forces in prohibiting an act to saying that we private citizens should encourage the act.
5.5.2006 2:55pm
Chukuang:
Perhaps this is further explanation for why vast swathes of Latin America are essentially basket cases. Robust economic develoment demands strict self-control and accountability. A society where "anything goes" has neither, and will suffer for it.

Public urination is also quite common in Taiwan, though public nudity, sex, and masturbation certainly are not. Taiwan has a very robust economy and a very low rate of violent crime. Apparently some cultures can piss on the street and still be economically advanced! So much for the grand theories tying the wealth of nations to their policies on public pissing! Glad that issue got resolved.
5.5.2006 3:02pm
TravisW (mail):
Well, the whole gist of this ridiculous series of posts has been, "if it feels good, do it". And now he seems to be saying, "hey urine is clean, why can't we just urinate in public?". I'm sure he even makes the trip down the hall from his office when he needs to go. He doesn't just pee in the corner of his office. He is just putting up a ridiculous strawman. I sincerely doubt that he would want to live in a world where people could just whip it out and pee whenever and wherever they felt like it

Well, someone correct me if I am wrong, but I have interpreted this series of posts to be an inquiry into the proper role of the government (particularly through criminal law) to regulate "yucky" behavior. We do live in a world where people can just whip it out and pee whenever they feel like. I could walk into my bosses office and pee in his trashcan if I wanted. Is it really the worry of being arrested for a misdemeanor that keeps me from doing so? Perhaps, but social condemnation and the possible loss of my job is probably a larger motivation. I am genuinely curious as to why many people think if the government doesn't make something illegal, it will become prevalent. For the purposes of this discussion, we have assumed that there is no public health risk. Even if we think it is disgusting, why does that mean we want to government to outlaw it? What sort of disgusting things should we not outlaw? I am very skeptical of the idea that we should use the government to enforce public mores, as that often leads to unforseen results. The ban on sale of sex toys in Alabama (or whichever state, I apologize if I have unfairly picked on AL) seems to be motivated by nothing more than a decision that dildos are "yucky". Is that ok?
5.5.2006 3:04pm
Taimyoboi:
"If, as you suggest, it's not possible to distinguish between speech and non-speech, then we shouldn't have any special protection for speech at all."

Ken,

That strikes me as a non sequitur. Simply because you are unable to draw bounds on what constitutes speech does not mean that we can no longer protect speech. We just have to widen the net a tad.

But that's moving the discussion a step beyond what is at hand. The question is not to distinguish between speech and non-speech, but to find a principle that allows you to draw bounds around certain types of expression that you find yucky and certain types of expression that you don't find yucky.

You can argue that certain public actions are not speech to begin with, and therefore not subject to constitutional protection, but once you declare that action to be speech in some contexts, you can no longer principally rule out that action in any other context as not speech.

Looping back to the original point, once you grant the right for people to engage in public sex, nudity or urination in certain expressive cases, you then must grant it in all cases.
5.5.2006 3:19pm
Frank Drackman (mail):
Urine isn't full of sugar unless you're a diabetic.
5.5.2006 3:22pm
Clayton E. Cramer (mail) (www):

No one, to my reading, has issued an edict that libertarians would be perfectly okay with "a sexual predator publicly masterbating in front of a 4 year old girl" -- instead, they have queried whether thinking about such issues will provide fruitful tests and insights into the problems we deal with running governments.
I used to be a member of the Libertarian Party. At conventions, you would end up in these discussions between the roughly 80% of activists who had their brains still operational, and the 20% of "more pure than thou" crowd who argued that:

1. Statutory rape laws were unconstitutional.

2. Child pornography laws were unconstitutional.

3. Laws banning drunk driving were unfair.

4. Laws prohibiting sale of guns, alcohol, tobacco, heroin, etc. to minors were impossible to justify.
5.5.2006 3:26pm
Clayton E. Cramer (mail) (www):

Most libertarians react to sex, nudity, urination just as their neighbors do. They just want to keep the categories straight between what should be handled by armed agents and what should be handled by private people.
In practice, having some things criminal--and dealt with my the police--leads to less violence. If some people had their way, adults manipulating or persuading children to have sex would be legal. In practice, this wouldn't be less violent than having the government enforce statutory rape laws, because the government operates with a bit less rage than a parent who is more likely to kill the adult who has manipulated a ten year old into sex.

Many of the conservative positions expressed here can't be separated in principle from those advocating Islamic Sharia law. Some draw the line at women exposing their ankles; others choose navels, or nipples, or buttocks.
Libertarian positions (other than the pure anarchist position) can't be separated in principle from Islamic Sharia law, which also criminalizes violence, theft, and fraud. So?
5.5.2006 3:30pm
Clayton E. Cramer (mail) (www):

alkali writes:


Clayton E. Cramer writes:

I was startled to see that the Massachusetts Supreme Judicial Court, a couple of years before it imposed same-sex marriage, ruled that homosexuals having sex in the bushes behind a rest stop could not be prosecuted for that, because not having marriage available to them, they lacked the opportunity to have a stable home environment.


No, it didn't.
This isn't the case that I had read (or rather, the GLAD description of it), but let's quote from the decision that alkali links to:
With the exception of Gay &Lesbian Advocates &Defenders (GLAD),(4) the plaintiffs are adults who have engaged in consensual acts of the type covered by the challenged laws in places that they believe are private but fear might be construed as public. These places include their residences, where their actions may be visible from nearby residences or to passersby; wooded outdoor areas; vehicles parked in a parking lot; and secluded areas of public beaches. They fear arrest and prosecution, and the attendant consequences for their careers and personal lives.
You will notice that GLAD is suing for the right to have sex in public.
5.5.2006 3:36pm
SLS 1L:
I think Eugene is wrong that urinating in public is banned principally because it smells bad, and that the taboo on urine and excretory bodily functions is less important. I don't buy that the causality works that way: I think it's banned principally because of the excretory taboo.

Whether the properties of urine justify a ban on urinating in public is another question.
5.5.2006 4:11pm
Gil (mail) (www):
Clayton Cramer wrote:

Libertarian positions (other than the pure anarchist position) can't be separated in principle from Islamic Sharia law, which also criminalizes violence, theft, and fraud. So?

What?

You don't agree that separating harm caused by force or fraud from harm caused by exposure to disapproved behavior is a principled difference?
5.5.2006 5:15pm
Dr. T (mail) (www):
OK, a libertarian physician chimes in:

Urinating on streets and sidewalks does not pose a public health problem. I still agree with bans against public urination because of the offensive smell. Some city areas get no breezes and no rainfall, and the urine smell can linger for days. Even if only 5% of city dwellers urinated in public just once per day, many areas of a city would reek. (I lived in Brooklyn for three years and had numerous odoriferous experiences due to human urine.)

I would classify banning public urination as avoidance of a public nuisance, analogous to laws against allowing garbage to rot on your property.

To paraphrase Oliver Wendell Holmes: The right to create a reek ends where the other man's nose begins.
5.5.2006 9:22pm
Julian Morrison (mail):
Raw urine is (mostly) sterile and IMO not particularly stinky, it smells mostly of food constituents. However it's also a particularly fertile breeding ground for bacteria - that ammonia reek is germs munching away. Consequently it's unhygienic - and the stink is a tort nuisance.
5.6.2006 11:41pm
Clayton E. Cramer (mail) (www):
Gil writes:


What?

You don't agree that separating harm caused by force or fraud from harm caused by exposure to disapproved behavior is a principled difference?
The claim to which I was responding was that conservative views of what the law should do were indistinguishable in principle Islamist views. Well, sure they both consider certain behaviors that do not cause direct physical harm or loss to be criminal. But that's true of liberalism as well, and progressives, too. Just because there's a similarity in some aspects of the legal philosophy doesn't mean much. Nazis and liberals both believe that there should be laws criminalizing some actions, but to argue that Nazis and liberals have much in common in principle is a statement that manages to be both accurate and trivial.
5.8.2006 5:54pm