When Constitutional Scholars Have Too Much Time On Their Hands…

…they write posts like this, by Ilya Somin, arguing that public nudity and sex, as forms of expression, should not be regulated. Oddly, the post's caveats makes both its most convincing points. For example:

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.

Well, duh. I don't think people sleep together to make some kind of statement. I particularly don't think that streakers are trying to craft a grand social critique. In fact, it's hard to see many instances of public nudity that are expression. And Somin has an excellent caveat for those few situations as well:

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?) [emphasis mine]

Well, yeah. One may express oneself, but not in any way one likes. A political assassination is not free speech - it has extremely harmful effects that outweigh its free expression values. So does public nudity. Which brings me to an absurd part of Somin's post:

Nonexpressive public sex and nudity should also be legalized, but local governments do not have a constitutional obligation to adopt that policy.

I don't know about Somin, but I really don't want to live in a world where I can walk out of a store to find a couple getting it on. It's just, er, disgusting? Yeah. And I think this is one of those cases where a "yuck" factor really outweighs all other considerations.
P.S. Somin has responded to this post with an update. It's really quite extraordinary:

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.

Um…I didn't think I would ever need to say this, but public nudity is a wee bit different from interracial marriage, gay sex, and tomboys. Let me put this as simply as I can. Sodomy laws and bans of interracial marriages hurt people. A lot. Banning public nudity and sex doesn't. At all. Really, it's not that hard.

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.

No, no it's not just because the activities are offensive and distasteful. It's that they're offensive and distasteful - and the practitioners are making the rest of us experience it. No one's calling for a ban on private nudity or private sex. Indeed, the survival of the species depends on it. But letting people force others to either see them in all their glory or else look away is just wrong. On so many levels.

Comments

[Chris]

I agree more with Somin. We cannot base our laws purely on the fact that we find something offensive. Laws and bans are there to protect others and their property from harm, danger, or mistreatment. Laws however are not in place to merely clean up what some people are offended by. Some people might enjoy being a bystander to public sex, you don't know. Not everyone thinks the same you do, and to make laws that only protect your viewpoints and destroy others' is entirely against what our country is about. Somin has clearly proven that public sex and nudity doesn't damage or harm anyone. It is just merely seen as "gross" by some people.

I don't know about you but I wouldn't want to live in a country to where I can walk out of a store and see some people defacing our country's flag. <---same thing as what you said about public sex. I find it offensive, but I find a lot of things offensive as does every american. But just because it is offensive does not mean we should take away the rights of others who do not find it offensive. True laws service all people of all viewpoints, not just key interest groups.