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Legal foundation for public decency, lewdness, nudity

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Many of the traditional common laws (such as nuisance law) are rational inductive principles based on the application of property rights to a variety of situations. The result is a history of legal precedence that a judge can use to deduce the proper judgment for a particular case.
That would be good if wise judges made the decision. And indeed, summary judgment is possible, but not guaranteed (or probable? I dunno). The main problem arises when a jury (which isn't trained in the common law tradition and doesn't have the inductive basis for forming a principle) renders a verdict. A problem also arises when you have a jackass judge, but let's pretend that that never happens.

Essentially, what we need is a distillation and publication of this waning common law tradition, so that citizens actually can know in advance what the law requires of them. People often moan about judges writing law -- here's a case where I'd say they should write down what they know, and submit it for objective codification. If a judge can personally apply an inductively-derived principle that rationally allows you to get at a particular conclusion, then the judge out to be able to say out loud what that principle is (his buddies can help him if he bollixes up the wording). In other words, a rational society is not just made up of judges using rational private principles to decide whether to punish people, it also involves saying in advance what acts you will be punished for. While few of us will actually end up writing these objective laws, some of us might (Tom? Matt?), and this is why I strongly encourage efforts like Michael's to bring out the principles underlying a possible objective statement of "nuisance".

Of course, it's good to have an elegant philosophical reduction, but a list of principles beats one known principle plus a number of private and personal principles, when it comes to law.

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See this thread: Bill Clinton's Impeachment--The legal aspects of abnormal behavior. It's quite a long one and full of pointless bickering, but there is about 10% or so of the posts where you will fin

I disagree with this in part; positive emotions (or any emotions, for that matter) are not the standard of value, but they are values.

Essentially, what we need is a distillation and publication of this waning common law tradition, so that citizens actually can know in advance what the law requires of them.

The various Restatements by the American Law Institute purport to do just that. However, they are not legal authority as such, because they are neither enacted by legislature nor made law through the common law process of deciding an issue properly before the court. Some courts have adopted portions of the Restatements as the common law of their State, but this is spotty. Also, the Restatements aren't always so much distillations of existing law as they are suggestions for a future course of the law (Restatement (2d) of Torts ยง402A, for example). Sometimes the courts play along, sometimes they don't.

But the question raised is whether the evolutionary flexibility a common-law system provides is better than having an objective, explicit statement of the law in the form of a statute. Criminal laws should certainly be statutory if they are to put people on notice of what they can and cannot do to avoid (a State-effected, rights-depriving) criminal prosecution. How is this different from having, say, a negligence statute to put them on notice of what they can and cannot do to avoid (a State-effected, rights-depriving) civil liability? Should the latter be more flexible, and so left open to change by judges, or should it, like criminal liability, be legislated instead? Is there an excluded middle solution, whereby judges could make the law, but only if it is objectively stated and codified?

I don't know if it's been stated, but here's the generally applicable common law formulation of nuisance (though it varies from state to state):

1) Defendant engages in conduct 2) that is ongoing and 3) that unreasonably and substantially interferes with Plaintiff's use and enjoyment 4) of real property 5) owned or possessed by Plaintiff.

What constitutes "unreasonable and substantial interference with use and enjoyment" is the tough bit. Some formulations talk about interference with Plaintiff's right of use and enjoyment, but the substantiality requirement knocks out de minimis interferences that a plaintiff might complain about more to vindicate his right than to stop or repair damage. Also, as the remedy most sought is an injunction, courts have to "balance the equities," which means they have to decide that granting the injunction would be less detrimental (To whom? Usually, 'society.') than allowing the conduct to continue. In other words, if you're a big noisy dirty stinky cement factory who employs 300 people, you can stay open, but if you're a big noisy dirty stinky sewage treatment facility who also employs lots of people, you get shut down. The problem I have with nuisance is that it is impossible for an actor (like a cement factory) to evaluate its risk of liability based on the facts as they exist before it acts. An essential fact is not only unknown, but unknowable, because it doesn't exist yet. He can have no idea about how the "equities" "balance" because the equities haven't been balanced yet. Half the equation (the harm of allowing the conduct to continue) doesn't even exist yet, and no amount of conscientious foresight can predict, with any accuracy, what will be relevant.

On the other hand, the legislative alternatives (zoning; public nuisance; or perhaps some strict liability version of private nuisance heretofore unimagined) focus more on the conduct than on whether that conduct actually violates someone's legitimate property rights.

Tying back to public decency; the harm contemplated (leaving aside whether it is actually a harm or not) is completely covered by private nuisance (as it is now, anyway) if we take public property out of the picture. The only real reason then to have public decency laws is because of public property; indecency on private property would fall under nuisance, and then only if someone else on adjoining property was actually harmed (whatever the harm might be) by the nudity.

Eventually I think many (all?) of these sorts of questions depend on clearly defining the State's police power, with particular detail on the extent of the State's power to take preemptive action to prevent harms. As it stands, anything can be justified in the name of "health, safety, morals and general welfare."

-Q

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Eventually I think many (all?) of these sorts of questions depend on clearly defining the State's police power, with particular detail on the extent of the State's power to take preemptive action to prevent harms. As it stands, anything can be justified in the name of "health, safety, morals and general welfare."

Qwertz, thank you for your explication of the issues related to common versus statutory law, and criminal versus civil actions. As to the last sentence of your statement above, you are entirely correct. However, I would argue that no amount of careful a priori codification of the law can prevent egregious abuses of government power on grounds of "health, safety, morals and general welfare" if a bad philosophy permeates the culture. If people (judges, politicians and the general public) believe that government should take care of the populace, even if it means sacrificing individual rights, or if the people do not even properly understand individual rights and why they should be upheld, then it is inevitable that government will act poorly.

It is interesting that with the same Constitution for 200 years (albeit with a few amendments added along the way, such as the one outlawing slavery!), our society went from one of near laissez-faire capitalism to one where "general welfare" is used to justify a welfare-state redistribution of wealth. The change wasn't in the language of the governing law of the land, the Constitution. It was in the philosophy that guided politicians, jurists, journalists and writers, all of whom influenced the creation of our modern mixed-economy welfare state.

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Someone cited a thread which cited a very short passage from The Ayn Rand Letter: "A corollary of the freedom to see and hear, is the freedom not to look or listen." Here is a longer except from the article containing that quote. The article is "Thought Control, Part III", The Ayn Rand Letter, Vol. III, No. 2 (October 22, 1973) [underline is in original; bold emphasis is mine]:

This aspect of the issue is wider than religious influences: civilized men do not tolerate public displays of sub-animal sex. Many people regard a public representation of sexual intercourse to be disgusting - not because sex is evil, but precisely because it is a value, an exception-making value that requires privacy. Censorship, however, is not the solution: resorting to censorship is like cutting a man's head off in order to cure a cold.

Only one aspect of sex is a legitimate field for legislation: the protection of minors and of unconsenting adults. Apart from criminal actions (such as rape), this aspect includes the need to protect people from being confronted with sights they regard as loathsome. (A corollary of the freedom to see and hear, is the freedom not to look or listen.) Legal restraints on certain types of public displays, such as posters or window displays, are proper - but this is an issue of procedure, of etiquette, not of morality.

No one has the right to do whatever he pleases on a public street (nor would he have such a right on a privately owned street). // Similarly, the rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive - e.g., sexually explicit posters may properly be forbidden on public places; warning signs, such as "For Adults Only," may properly be required of private places which are open to the public. This protects the unconsenting, and has nothing to do with censorship, i.e., with prohibiting thought or speech.

I would regard the senseless torturing of animals as one of those loathsome sights. I am an "unconsenting adult" who would not want to be subjected to such a sight. The principle behind the government's banning of such displays is the same as the principle banning public sex. Of course, the issue is contextual. Being subjected to the sights, sounds and smells of cows being slaughtered at a slaughterhouse is not the same as being subjected to an insane individual cruelly torturing his dog in his front yard.

The full article by Ayn Rand is quite interesting. It touches on censorship, and the commonality of the attitudes of both hippies and conservatives toward it.

As for the issue of animal rights, it is entirely inapplicable here. Animals do not have rights, but because humans do, this type of legal prohibition is permissible.

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From that passage, I don't understand the distinction Rand is making between censorship and the freedom "not to look or listen" as she applies it to etiquette. Etiquette, while important and valuable in a society, has nothing to do with individual rights and should not be legally enforced. By definition it is social norm and constantly changing, not an essential aspect of human life on which objective law is based.

The logical extension is imagining social norm under a dictatorship, religious group, or based on any kind of irrational premises, and what that would mean written as law.

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From that passage, I don't understand the distinction Rand is making between censorship and the freedom "not to look or listen" as she applies it to etiquette. Etiquette, while important and valuable in a society, has nothing to do with individual rights and should not be legally enforced. By definition it is social norm and constantly changing, not an essential aspect of human life on which objective law is based.

The logical extension is imagining social norm under a dictatorship, religious group, or based on any kind of irrational premises, and what that would mean written as law.

I am not sure precisely what Ayn Rand meant when she used the word etiquette. However, from the full context not just of the quoted passage but of the full article, I think her meaning is clear. In the case of sex, because it is an exceptional, private activity, one is disgusted at experiencing an unchosen public display of it. To do so is a form of assault on the other person. Therefore, it is proper to legally forbid such a display, not just to protect the "unconsenting adults" from being confronted by such behavior but also for minors. She makes it clear in her article that such a restriction only applies to public displays, because such displays would involve other people against their will.

As for her use of the word "etiquette," I think she is using that word to emphasize that these issues are relatively minor and center on standards of civilized behavior, in contrast to forceful criminal assaults on another person.

Obviously, simple matters of etiquette are not a matter of legislation or even of awarding damages in a private legal action. This would include such things as simple table manners, behavior in public areas, etc. However, there are certain activities, such as public sex and, I would include, public animal torture, that cross the line in terms of the degree to which they assault the "unconsenting adult". For that reason, it is proper for government to restrict these activities.

One could think of many others. Legally, whether all these behaviors should be enumerated or captured under a broad law or dealt with in some other manner, is another issue, one for the lawyers and legal theorists to work out.

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The most important part of the passage is this: "sights they regard as loathsome". I think anyone who understands Objectivism will be very concerned with this particular part, an would want to see how to reconcile this with the whole of Objectivist philosophy.

Uh, I don't mean this as an argument from authority, but when you say "anyone" you should exclude Ayn Rand. After all, she said it!!

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Uh, I don't mean this as an argument from authority, but when you say "anyone" you should exclude Ayn Rand.
We can no longer ask her to clarify what she meant. Then the question is how to interpret her words, especially given her propensity for saying exactly what she meant. She obviously knew what she meant; the issue is how we can integrate this into a non-contradictory whole. I'm addressing people who understand Objectivism at a relatively high level who might now or in the near future see this question.
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The most important part of the passage is this: "sights they regard as loathsome".

Well, that might serve as the most important part for someone who deliberately tried to misinterpret the passage as endorsing subjective laws. By taking those words out of context, he could fool a receptive audience--one that wanted subjective laws--into thinking they could pass subjective laws and still have a political system Miss Rand would approve of. But for an honest person interested in understanding what Miss Rand's position actually was, who would take into account the proper context of the passage--including what she had written elsewhere about a proper legal system and the need for objective law--it would be clear that what Miss Rand had in mind were objectively loathsome sights, and the words "they regard" would have no more significance than any other connecting words, such as "the" or "that."

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especially given her propensity for saying exactly what she meant

Yes, by all means, do take her literally. Consider especially that she said this:

to protect people from being confronted with sights they regard as loathsome

and not this:

to protect all people from being confronted with any sights they regard as loathsome

To me--again, taking into account the context of Objectivist politics--this means to protect people from certain sights, which those people happen to regard as loathsome. This is confirmed in the next non-parenthesized sentence:

Legal restraints on certain types of public displays [...] are proper
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At the heart of this 3 part, anti-censorship, essay was Rand's disagrement with the idea of national/community standards for what is and is not obscenity when it comes to sex. She illustrated how such guidelines are nothing but arbitrary since no such thing as common conscience of a community exists: the reaction of the young to some sexual material X would not be the same as that of an old person, the reaction of religious person not the same as that of a non-religious. She considered sex as a very private, personal matter. She spoke against religious view of sex but allowed religious people the freedom to live according to it. At the same time she said that the same religious people have no right to dictate to others what sexual content they can or can not be viewing/reading in private or in public with consent.

So this is the context, in which she said that it is the individual who decides what is and is not obscene to him, not any group of people, not government, not Ayn Rand (eventhough she may not have agreed with his taste, finding the same material obscene herself).

Since she decided against deriving objective standards when it comes to sexual content (her standards would be censorship on other's) - she allowed for the protection of the unconsenting.

Edited by ~Sophia~
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The way I understand this is:

We should not set universal standards for what ought to be considered obscene when it comes to sexual content. There are however objective definitions for what sexual content IS (Rand's certain sights) (it is not left to someone's whim) - holding hands is not sex, for example. Everything that sexual content actually IS should be assumed to be a private matter, not censored, but also not displayed to the public unless consent has been given. Am I wrong in my analysis?

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Everything that sexual content actually IS should be assumed to be a private matter, not censored, but also not displayed to the public unless consent has been given.

Bear in mind this, as well. The scope of any proposed restrictions would be only those things one displays to the non-consenting public. If you put up a warning sign, then anyone who proceeds beyond it is consenting. Given what I know of the laws regarding what you may and may not do once you declare your property "open to the public" (as in a store, where everyone is assumed to be invited in unless directed otherwise), this is not totally unusual.

The only restriction, in other words, is not on your private property, but rather on what you allow to leak off of your property and onto the property of others; in this case loathsome sights instead of, say, smells.

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The way I understand this is:

We should not set universal standards for what ought to be considered obscene when it comes to sexual content. There are however objective definitions for what sexual content IS (Rand's certain sights) (it is not left to someone's whim) - holding hands is not sex, for example. Everything that sexual content actually IS should be assumed to be a private matter, not censored, but also not displayed to the public unless consent has been given. Am I wrong in my analysis?

I think you're exactly right.

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Two distinctions have to be made here. First is the venue, the distinction between an act in public versus one in private. The second is the objective distinction between loathsome versus non-loathsome. What Rand's passage is referring to is the fact that when property is publicly available, there is an implicit agreement to behave in a certain socially acceptable way, and that if you do not agree to conform to those rules, you must provide adequate advance notice to the public (hence the brown wrappers). The particular standards are contextual, and depending on the society could include nudity, sex, religious desecration, or the display of Nazi symbols which in some societies could be extremely loathsome but not in others. Disgusting public displays such as animal sacrifice could properly be legally prohibited, in the right context. This does not mean there can be no Nazi symbols, nude women or goat slaughterings, it just means that these things may not be in public, and they should be restricted to the private sphere. Whether or not nudes or Nazis are loathsome has to be determined contextually, for that society. Because such restrictions limit when you may do on your property if it is public (a store or private street, for example), it is essential to state in advance the objective standards of decency under the law, so that you can know whether displaying Nazi symbols or public nudity is loathsome in that society.

Applying this to the dog-torture question (which spawned this particular sub-thread), it is the case that in the US, the public rightly finds the sights and sounds of dog torture repulsive, so if you must torture your dog, you must do it in private. This does not just mean that you must be on private property when you torture your dog, it means you must not confront the public with your disgusting acts, and you must keep the surrounding sights and sounds out of the public. Previously, I didn't understand that Objectivism actually does assert a "right to not perceive", but this passage does clarify that there is such a right.

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Previously, I didn't understand that Objectivism actually does assert a "right to not perceive", but this passage does clarify that there is such a right.
If this is what Rand meant, I do not see the foundation for such a right. In fact, I can't think of any other way to boil this down than "the desire not to be offended," which is an issue of etiquette.

If a right, as Rand defines it (in the Lexicon under "Individual Rights"), is "a moral principle defining and sanctioning a man's freedom of action in a social context," I do not see how a person is prevented from acting by simply viewing something obscene.

Appropriate etiquette is valuable in facilitating exchange between men, but it is not the place of the law to decide what is or is not appropriate as long as everyone is free to do as he pleases with himself and his property. If one does not like certain behavior, he should simply ignore it or go to where it is not.

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Two distinctions have to be made here....

Previously, I didn't understand that Objectivism actually does assert a "right to not perceive", but this passage does clarify that there is such a right.

But I can think of many things that are repulsive to rational men that are allowed in public avenues. If my neighbor was a vehement socialist and put posters everywhere on his property that glorified socialism (or communism), then that would definitely be a repulsive sight to see. I think I don't need to argue here whether or not socialism is objectively repulsive, either. But does that mean it should be illegal to advocate such theories on your own property (but in sight of others, like posters hanging behind someone's windows, using bumper-stickers and stuff like that).

Or, if you had deeply religious neighbors perhaps they like to eat in the backyard and indoctrinate their children with all sorts of false knowledge. Now, I think that is far more damaging for a person to experience than someone showing their kids how to torture a dog. I don't really see the basis for saying that certain of these things should be banned, and others should be allowed. Should Christian conservative barbeque parties in the backyard also be prohibited in a free society, or is that somehow different from having sex in the backyard, or torturing dogs in the backyard?

Actually, I think it's kind of strange to put nudity and sexual behavior in the same category of repulsive sights as torturing animals.

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If this is what Rand meant, I do not see the foundation for such a right.
The foundation is basically "consent", that is, whether you should be forced to see loathesome things when you are in public. If you want to see a disgusting thing and some store in a shopping mall makes a disgusting thing available to you behind doors to see, that is perfectly fine. If you don't want to see the disgusting thing, you should also have that right. The important distinction that is being made here regards public places. If a person doesn't want their property to be a public place, they can make it be private -- exclude the public. If you want to display something disgusting and let the public in, you simply have to screen off the disgusting part and put up some kind of warning for the unsuspecting public, so that people have been given adequate notice and can then be presumed to have consented.

This is part and parcel of the concept "implicit agreement"; for example, in opening up a store, even though I don't explicitly put up a sign that says "You have permission to enter this store", that permission is implicit in the concept and function of being a store. This is a defeasible permission, so you could put up a "Members only" or "Adults only" sign, or even "No trespassing", if you want to contradict the implicit permissions. You're also implicitly warranting that the premise is wholesome in the sense that the floors aren't electrified and the rooms aren't filled with poison gas, but you could deny that implication by putting up a "poison gas in the room" sign.

You have the right to be irradiated, gassed or beaten, if you want, but you must consent. You have the right to decide what are values or disvalues for you. That includes involvement with fecal matter, porn, animal torture, or the display of a man having his head chopped off. In making your place public, you are warranting that certain acts will not take place, unless you give advance notice. So the question is, what acts? That's defined in a social context. I'll address this more in my reply to Maarten. The point is that I think Rand held that this was a matter properly governed by law (in the restricted way that she does) because it has to do with acting against a person without their consent.

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But I can think of many things that are repulsive to rational men that are allowed in public avenues. If my neighbor was a vehement socialist and put posters everywhere on his property that glorified socialism (or communism), then that would definitely be a repulsive sight to see.
Your opinion would probably be a minority opinion where you live. We can compare the situation of US society and Israeli society. Generally speaking, in the US we're not as worked up over Nazi symbols as they are in some parts of the world, like Germany or perhaps Israel (I'm just making an assumption w.r.t. Israel, that they have an anti Nazi-symbol law). So objectively speaking, in the US social context a Hakenkreuz isn't the same affront to society as it would be in Israel. The way that I know that Nazi symbols are highly offensive in the context of German society is that I know of a law that objectively tells me so. So different social facts about what is considered disgusting will give rise to different laws. The facts of the history of Israel would explain why Israeli society would find Nazi symbols to be disgusting.
But does that mean it should be illegal to advocate such theories on your own property (but in sight of others, like posters hanging behind someone's windows, using bumper-stickers and stuff like that).
Rand is not arguing that men should find porn disgusting, she is simply observing that they do. I think, given what Nazism represents that rational men should find Nazi symbols disgusting, but it's clearly not as disgusting as fecal matter, public autopsies, or animal torture (are you grossed out yet?). If you live in a society that finds public autopsies to be disgusting and outlaws them, then you will know that you will be safe from being involuntarily confronted with such sights and smells when you go walking down the street. If your society does not find such acts to be disgusting, you can either leave that society, or take your chances.
Actually, I think it's kind of strange to put nudity and sexual behavior in the same category of repulsive sights as torturing animals.
Well, they are clearly in the same general category, but there's no question that they are highly distinguishable.

Now about Amsterdam. I haven't been to the Red Light district, naturally, so I'm curious what the limits on public displays are, as opposed to what you get to see behind closed doors. I may do some field research in June, but for now I would like to know how much you can get away with, in particular when there's a known area for such conduct, a kind of ubiquitous "warning, there be porn here!" sign which constitutes the kind of advance notice that needs to accompany public sensibility-confrontation. Like, can they get away with actually doing the deed in the window?

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Two distinctions have to be made here. First is the venue, the distinction between an act in public versus one in private. The second is the objective distinction between loathsome versus non-loathsome. What Rand's passage is referring to is the fact that when property is publicly available, there is an implicit agreement to behave in a certain socially acceptable way, and that if you do not agree to conform to those rules, you must provide adequate advance notice to the public (hence the brown wrappers). The particular standards are contextual

I think you've nailed it, except that I'd prefer to say something like "behave in ways that are acceptable to reasonable individuals" rather than "behave in a certain socially acceptable way."

and depending on the society could include nudity, sex, religious desecration, or the display of Nazi symbols

Careful there, before you know you'll be mandating veils and burqas for women! This is what I meant by reasonable individuals rather than "society" being the standard. If you allow the whims of the culture to determine what you may or may not do in public, there is no limit to what they can demand you do or don't do.

Like all other laws, the laws concerning public etiquette should be grounded in the objective nature of man, and in the one principle that is the basis of all rights: the right to pursue a rational life. For example, as Sophia pointed out, Miss Rand held that sexual material could properly be barred from being displayed in public because sex is a private matter ; this is something derived from the nature of sex, and ultimately from the nature of man. Thus, keeping sex private is part of pursuing a rational life; a public sexual display would interfere with such a pursuit.

But what does the display of a Nazi symbol accomplish? It lets you know that a particular person is a Nazi. As a rational person, would you want to avoid finding out about who is and who isn't a Nazi? Quite the opposite, I would say: if someone was a Nazi, you would definitely want to know about it so you can avoid dealing with him. (What's more, you might even want to find out if he posed a threat to your life or property and take legal action if he did--but there you would rely on laws regarding things like murder and assault, not etiquette.)

So, with the standard of man's life in mind, sex in public IS a nuisance, but a public advertisement of one's allegiance to the Third Reich is merely bad but useful-to-have news.

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Careful there, before you know you'll be mandating veils and burqas for women!
Right, this isn't open-season on declaring any arbitrary conduct to be repulsive enough to outlaw. Within a society, there are certain reasonable, justified standards. Displays of intercourse could be an example of the kind of act that should be kept out of the public eye, in a society where sex is considered to be a private act, but not in a society that has no such restrictions. Equally, displays (direct or symbolic) of male or female genitalia could be offensive in a society, because of the connection to intercourse -- though whether such a connection is made in a society, would have to be made by reference to the standards of the society. This has to be determined by looking at the actual facts and values of a society. If the values of a society are depraved to begin with, then there's nothing that a rational man can do about, say, the burqa, except leave that society.
But what does the display of a Nazi symbol accomplish? It lets you know that a particular person is a Nazi. As a rational person, would you want to avoid finding out about who is and who isn't a Nazi?
That's a possible result, but it's unusual for a person to display Nazi symbols just as a way of identifying themselves as Nazis (I imagine such a use could occur, but that's not the purpose of such a display). The purpose of displaying Nazi symbols is a type of initiation of force, of striking fear into the hearts of people, evoking the memory of the death camps and in many cases reminding people of the loved ones slaughtered at the hands of those bastards, to intimidate the victim by pointing to the horrible atrocities committed by the Nazis and implying "You will be next!". If one simply wants to be known as a Nazi, for whatever reason, you can wear a kick-me sign that says "I'm a Nazi".
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Within a society, there are certain reasonable, justified standards. Displays of intercourse could be an example of the kind of act that should be kept out of the public eye, in a society where sex is considered to be a private act, but not in a society that has no such restrictions. Equally, displays (direct or symbolic) of male or female genitalia could be offensive in a society, because of the connection to intercourse -- though whether such a connection is made in a society, would have to be made by reference to the standards of the society. This has to be determined by looking at the actual facts and values of a society. If the values of a society are depraved to begin with, then there's nothing that a rational man can do about, say, the burqa, except leave that society.

But there's an important distinction between a society that considers sex private for the same reason Miss Rand did and generally agrees with Miss Rand's ideas--and a society that forces women to wear burqas in public. (I'm sure you have been aware of the distinction, I'm just making sure it doesn't remain unstated!)

That's a possible result, but it's unusual for a person to display Nazi symbols just as a way of identifying themselves as Nazis (I imagine such a use could occur, but that's not the purpose of such a display).

I think the purpose is usually to endorse Nazism. Publicly identifying yourself as an adherent of an idea is the simplest and most common way of endorsing and hoping to spread that idea. If, say, you sport an Objectivist bumper sticker on your car, you do it to say "I'm an Objectivist. Objectivism is good. I hope you too will consider becoming an Objectivist." (The three sentences are nearly equivalent in meaning: you adhere to an idea because you think it's a good one, and if you adhere to an idea because you think it's a good one, you are bound to hope that it will gather more and more adherents.)

Merely endorsing an idea does not violate anyone's rights, not even as a nuisance, since you're always free to judge the idea on its merits and discard it if it is wrong.

The purpose of displaying Nazi symbols is a type of initiation of force, of striking fear into the hearts of people, evoking the memory of the death camps and in many cases reminding people of the loved ones slaughtered at the hands of those bastards, to intimidate the victim by pointing to the horrible atrocities committed by the Nazis and implying "You will be next!".

If you suspect that the Nazi is actually taking steps to make you (or someone else) the next victim, then yes, we have an initiation of force, but as I said this is not a nuisance but a criminal activity: a preparation to commit murder or inflict bodily harm. But if the Nazi is simply arguing things like "Historians don't agree whether there was a Holocaust" etc., then that's not a threat of force. (If may be a breach of contract, though, e.g. if he was teaching those things in a school. But again, that's something distinct from nuisance.)

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