If you can define “Decency” and make that definition universally acceptable, then yes, you can legislate and regulate it. As such, decency is as nebulous as indecency and subject to the interpretations of the individual and the group. Legislating decency is like having a race where the finish line moves. Sometimes its easy, sometimes damn near impossible.
What Constitution are you reading? The Constitution protects particular enumerated rights and requires that laws regulating other behavior apply to all equally (a short-hand version of the Equal Protection Clause).
Since the right to nudity is not protected by the Constitution, and everyone has to keep their knackers on,[sup]1[/sup] it is not an “unjust law” that the courts have the power to strike down. There is no constitutional check that applies here.
Your analogy to the sodomy case is inapt - the strongest argument against that law is that it criminalizes homosexual sodomy while allowing heterosexual sodomy (that is, there is no equal protection under the law). If the law criminalized both equally, it would stand a much stronger chance of surviving Supreme Court review.
Sua
[sup]1[/sup] laws that allow men to be bare-chested, but require women to cover their breasts present a slightly different, and pretty interesting, legal issue.
First off, the analogy was not intended as a direct one. IANAL, but I think technically what we could be talking about here is a Ninth Amendment claim, and I’m well aware that it’s shaky and precedent is most definitely against it. You are absolutely correct that it’s not an equal protection issue[sup]1[/sup], but that’s not at all what I was going for–rather, the point was merely to counter your (apparent) argument that majority rule applies because of your assertion that it was the majority public’s “right to choose” not to view nudity. Similarly, the public could have a “right to choose” not to allow homosexual acts in a community, but I don’t think there’s a particularly good reason for that, either.
And I’m not terribly concerned if striking down existing indecent exposure or sodomy laws would run contrary to the Ninth’s “original intent”. The Founding Fathers were superbly intelligent, but they weren’t perfect.
[sup]1[/sup] Unless possibly if the law is enforced such that children running around naked in the park is allowed but adults doing the same are arrested…
What about people who don’t want to see other people naked. Public nudity should be limited to areas where people want to be nude and don’t care about seeing other people nude, such as beaches or clubs, etc. You shouldn’t just be able to go nude anytime and anywhere you choose. If you do, you’re infringing on the rights of people who don’t want to look at you without your clothes on.
And you would be exactly right - innocence is ignorance. But it’s ignorance for a reason. Most people would agree that children of sufficiently young age should ideally wait until they’re older to confront certain truths. I wouldn’t let a 3 year old watch Starship Troopers, because I don’t think he would be mature enough to comprehend death. Similarly, I wouldn’t let him watch a porno, because I don’t think he would be mature enough to comprehend sex, and certainly not mature enough to engage in it (even if only in make-believe). Fortunately, it’s fairly easy to keep young children from having to address these things when they’re too young to understand them - monitor what they watch.
But how do I make sure my 3 year old isn’t exposed to sex, when it’s legal for people to have sex on the sidewalk? It would be functionally impossible to shield him from these images, unless I confined him to the house.
The harm done to the children, should public sex and nudity be legalized, is appreciable - children will be effectively forced to “grow up” before their parents feel they’re ready. The harm done to would-be nudists and public fornicators is comparitively small - wait until you get home to unleash the weasel (or the corresponding woman-part). And since the number of people who would like to have control over their kids’ encounters with the World’s Truths vastly outnumbers the number of people who would like to wander around naked and screw in public, us prudish folks win.
Jeff
Decency laws came about to protect eyeballs:
Some people should never, (say again), never be viewed naked.
>Arcana: If a child sees two birds having sex, we would not generally have a problem with that, though some of us might blanche a bit at explanations. If a child sees two people kissing passionately in public, some might be upset, but few people would advocate a ban on kissing because of it. And though nudity and/or sex presented to children might send people into shock, there is the ultimate question of why. After all, a child is confronted with his or her own nakedness on a regular basis. I expect some people will decry the loss of innocence, yet none should deny that all must lose innocence eventually–I would argue that innocence is actually ignorance in the clothing of youth. We might claim that children will not be able to understand, but who can rightfully claim to understand everything at first glance? I’m certainly not saying kids should be encouraged to have sex; to the contrary, but we would be well advised to educate rather than hide and mystify. One could argue that kids might be led to sexual activity before they are ready, but the same is said of violent images on TV without any definitive causative links.<
So, was that a yes? You see nothing wrong in a child walking into a public restroom and encountering a couple having sex?
Let me put it another way. I don’t think I want a child of mine to encounter that, especially considering the caliber of people who would have sex in public restrooms anyway.
Just as the current law infringes on the right of people to wear what they want when they want.
“For the law, in its true notion, is not so much the limitation as the direction of a free and intelligent agent to his proper interest, and prescribes no farther than is for the general good of those under that law. Could they be happier without it, the law, as a useless thing, would itself vanish; and that ill deserves the name of confinement which hedges us in only from bogs and precipices. So that however it may be mistaken, the end of law is not to abolish or restrain, but to preserve and enlarge freedom.” - John Locke, Concerning Civil Government
Well, I’m not so naive as to think that the national policy will change any time soon, nor am I pretending that population is ready for such a paradigm shift. Still, I do think that some degree of freedom, at least in limited extents, could at some point in the distant future be implemented despite the current “prudish” attitude. (Though to be nit-picky, all that would be needed is a set of five particularly libertarian justices to turn the law on its head in this respect, even for a largely minority opinion.)
You must recognize that’s a loaded question. Literally, the answer is yes–the event would be ethically neutral in my opinion unless there were other factors involved. Ironically, as it is with many things, I expect such an incident would traumatize the parents and their sensibilities more than it would the child.
Little do you folks realize, though, that you have unintentionally made me answer one of the important questions in your stead. The most likely primary reason for existing indecency laws seems to be the inability of the American majority’s sensibilities to deal with sexual issues in an open, public context. In a more positive spin, this comes across as “community standards”. Whether or not community standards are really a “legitimate” basis from which to create laws remains open to debate in my mind–and this is not simply limited to indecency but other laws based on the same premises.
Well, this answers the question of whether we can legitimately enforce decency. A law prohibiting public nudity and sexual activity was survive judicial review.
As for whether such a law is proper, the answer again would come out to be yes. The fact of the matter is that you can legally be naked or have sex outdoors - all you have to do is make sure no one is around.
The “right” that anti- public nudity and sex laws deprive people of is the “right” to make others watch you traipse around nude or boink.
So, the minority wants the right to make you see it. The majority wants the right not to have to see it. Neither right strikes to the core of what it means to have liberty. Given the conflict of really picayune interests, it is proper to side with the majority.
Still wouldn’t be a constitutional problem. The state may treat adults and children differently if the different treatment “rationally relates” to a governmental interest. In practice, everything rationally relates to a governmental interest.
Putting aside homosexual acts for the moment - your theme through this thread is that there aren’t particularly good reasons to prohibit public nudty and sexual activity. Without regard to whether your arguments on that issue are valid, what you haven’t done is put forth any, much less any “particularly good” reasons why public nudity and sexual activity should be allowed. Quite frankly, I can’t think of any - I don’t think that satisfying the fetishes of exhibitionists qualifies as a “particularly good” reason. Again, if neither side can come up with a compelling argument for their side, it is proper that the majority view prevail.
Don’t get me wrong - I have no problem with public nudity or sex, and if the majority changes its mind and repeals the anti-nudity laws, more power to them. But when there are no great issues of philosophy or liberty at stake, simple discomfort is sufficient to make a law legitimate and proper.
Sua
We discussed the public-nudity issue here.
I agree that the rights of people who don’t want to see other people in the nude must be respected, but I have a problem with the fact that beaches, parks, and other locations where one can freely swim, sunbathe, or do other activities are so few and far between. I noted in the other thread how there’s not a single legal nude beach in L.A. County. And to that I say, “Can’t we even have one frigging beach?!” To the extent that we can’t, I think that the decency standards do represent tyranny of the majority.
Or looking at it from a slightly different angle, must the rights of those who are offended by nudity be protected everywhere, at all times? Why can’t there not be designated beaches where nudity is officially sanctioned, and those who don’t want any part of it can simply decide to frequent other beaches?
My issue is with the fact that places where one can swim, sunbathe, or do other activities in the nude are so few and far between. This is especially true with respect to beaches.
At that point we turn to the opinion of what confers “legitimacy” to a law. A myriad of laws have survived judicial review at one point only to be overturned at later dates. I would draw an important distinction between legitimacy conferred by temporal law versus legitimacy conferred by reason.
Actually no, not necessarily. It clearly depends upon state and local statute, and even whether the act in question is public or private. Georgia state law, for example:
So technically Georgia law would seem to prohibit two persons having sexual intercourse in any public place, regardless of whether or not anyone views the act.
Compare Michigan state law:
Here, the phrasing “make open or indecent exposure” implies there is a party to whom the act was exposed. (Although in this case, answering one’s door while naked could conceiveably be punished with life in prison!)
Well, wouldn’t that depend on the specifics of the case brought to bear? My apologies if I haven’t put forth an “particularly good” reasons to strike down indecency laws, but you’re the first to ask.
I’ve been thinking about the other potential Constitution arguments that might come up. So let me skip the admittedly general and weak Ninth Amendment on outright sexual acts and go to the First Amendment free speech scenarios that might arise regarding nudity in and of itself. Let us say you’ve got a group of anti-fur protestors who decide to march nude, or a photographer who takes nude photos on busy city streets with the intent to show contrast between man’s “natural and artificial states”, and these people were arrested under the Michigan statute. Do you think neither, either, or both would have grounds for a First Amendment protection claim?
I did a little research and came up with some interesting tid-bits from the controversy over Carlin’s speech in the 5-4 SCOTUS decision of FCC v. Pacifica. Compare this quote from majority opinion:
To the counter-point of the dissent:
If we have further extended freedom of speech to public flag-burning, then it is not so far-fetched to extend it to public nudity, provided there is a political or artistic value (Miller v. California)which supercedes the public’s right not to be offended.
There is a reason; it’s just one you won’t accept. Public nudity and sex would upset and bother a lot of people. This is a legitimate basis for a law. As examples, laws which prohibit planes landing at airports after midnight, laws prohibiting the use of your car horn or playing radios over X decibels, etc., are all “legitimate,” because they prohibit others from interfering with the majority’s right to enjoy their lives. You can sue your neighbor for being a nuisance.
I’ve been thinking about the other potential Constitution arguments that might come up. So let me skip the admittedly general and weak Ninth Amendment on outright sexual acts and go to the First Amendment free speech scenarios that might arise regarding nudity in and of itself. Let us say you’ve got a group of anti-fur protestors who decide to march nude, or a photographer who takes nude photos on busy city streets with the intent to show contrast between man’s “natural and artificial states”, and these people were arrested under the Michigan statute. Do you think neither, either, or both would have grounds for a First Amendment protection claim?
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Nope, the First Amendment argument doesn’t wash, either. Laws may regulate the time, place, and manner of speech, so long as those laws are viewpoint- and content-neutral. So long as the nudity laws provide a blanket prohibition on public nudity and sex, and do not single out nudity as a form of political speech and/or a particular point of view, such laws pass consistutional muster - and the protestors and photographer are in the clink.
[QUOET]To the counter-point of the dissent:If we have further extended freedom of speech to public flag-burning, then it is not so far-fetched to extend it to public nudity, provided there is a political or artistic value (Miller v. California)which supercedes the public’s right not to be offended.
[/QUOTE]
Flag-burning and public nudity are apples and oranges. The flag-burning statute was content- and viewpoint-biased - it barred the burning of the American flag. You were allowed, under the law, to torch the Canadian, British, Swazi, etc., flags. Quite frankly, it should not have been a 5-4 decision - it should have been unanimous.
A content-neutral law could have permissibly prohibited flag-burning - a law that prohibited all burning of any object in a public space would have passed muster, for example.
Sua
Well, if I’m using apples and oranges with the flag-burning comparison, so are you here.
From MADSEN v. WOMEN’S HEALTH CTR., INC.:
And as the rest of the law was upheld, it must be noted there was nothing non-neutral regarding either view-point or content in the statute. Mere “images observable” were apparently not enough of a nuisance to override free speech in this case.
Oops, I misspoke… that was an injunction, not a statute.