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Sex in Public. Need I Say More?

Riddle: What is almost as interesting but not quite as titillating as sex in public?
Answer: Watching libertarian legal bloggers debate sex in public.

We have Amber Taylor at Prettier Than Napoleon to thank for kicking off the conversation. She raised the question of the "harm principle" and the appropriateness of state regulation of public sexual behavior:

"It just seems odd to say that we can burn flags in public (something many people find so offensive that it provokes violence) but we can't have sex in the bushes at the park because someone might get the vapors."

Taylor finds an ally in Ilya Somin at The Volokh Conspiracy:

"Amber is right: public sex and nudity should not be banned merely because people find it offensive, any more than flag burning should be forbidden for the same reason. The latter, in my view, is actually considerably more offensive than public nudity."

Somin adds two delimiters: First, the First Amendment should protect only public sex and nudity that are "expressive" in nature. Second, it is OK to regulate public sex that could pose a danger, such as people standing nude by the side of a highway.

Then comes Eugene Volokh to the discussion, suggesting that there is a libertarian justification for restricting public sex and nudity, the principle now to be forever known as "The Yuck Factor." For Volokh, the question is whether the government can set up rules that try to maximize the aggregate enjoyment of public spaces and the avoidance of yuck:

"There might be some constitutional or broader moral constraints on that. ... But it's not clear to me that 'yuck,' whether it comes to nasty smells or to public sex, is a categorically illibertarian at least when it comes to behavior in government-run spaces."

Another issue, says Volokh, is whether the law should shield us from "involuntary sexual arousal." Somin disagrees on both counts. He argues that "yuckiness" is not sufficient reason for a government to regulate public behavior. As for unwanted arousal, "there are many other activities that arouse strong, but unwanted emotions in bystanders," he says.

Adding his perspective on public sex is Mike Cernovich at Crime & Federalism, who agrees with those who oppose regulation:

"[T]here are lots of things I don't want to see in public.  Nose-pickers and perverted-gawkers come to mind, as do paparazzi and celebrity fawners.  People who fawn over celebrities literally make me sick to my stomach. But why should one's subjective view of what is beautiful give him or her the right to impose that view on others?"

Meanwhile, back at the blog where the debate had its start, the discussion continues apace, as Taylor summarizes for us.

Posted by Robert J. Ambrogi on May 5, 2006 at 11:40 AM | Permalink | Comments (0) | TrackBack (0)


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