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Legal foundation for public decency, lewdness, nudity

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If I understand the situation correctly, it is simply not possible to be nude in public view (for example), even if everyone around you doesn't have a problem with it.
I think that is not correct. The function of these restrictions would be well enough served if decency offenses were "automatic" civil torts, similar to per se defamation. That is, a person who is injured by a loathsome public display needs simply to show that the action took place and that witnessed it, and -- analogous to the traditional categories of per se damage categories of defamation -- it follows automatically under the law that they are to be considered to have been harmed. Then if in fact no person is offended, there is no matter to consider.
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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.

So how can it be an initiation of force?

It is a violation of one's right to not look or listen, the same as the violation of one's right to not-smell.

It can only be such if it is something that is imposed upon you as you stand on your own property, enjoying it in a reasonable manner (or in public, but that basically boils down to not-on-the-violator's-property, and is essentially the same). There is no way this could outlaw anything that you needed a radio or television to see, since you could change the channel. Is has to be something that is just openly and unavoidably visible to you as you stand there on your own property.

And no, closing the blinds or requiring you to build a fence does not work as you have a right to enjoy your property and it isn't your responsibility to go out of your way to block the ubiquitous, (any more than it is your responsibility to cauterize your nostrils against foul smells) only to refrain from tuning in if you have that option.

This is about your right to exist on your property in peace without the disgusting smells, sounds, and yes, even sights, of others "leaking" off of their property and onto yours. Because they only have the right to produce those disgusting things on their own property; not to impose them on the non-consenting.

Now I've said already that I don't have a principle by which to separate the merely annoying from the intolerable. Nor am I entirely satisfied with the idea that it is simply a matter of cultural custom, although this could just be another example of how law could not survive a sufficiently irrational culture. But I think at the extreme end of this, we can indeed see that Ayn Rand's point was valid, and that you don't have the right to impose certain things on non-consenting people who are on their own property - that such is certainly not civilization.

I think some of the confusion here is on the idea of "public" space, which is an anti-concept. Properly, actual "public" space would be a non-entity. You would have only private property, where the owners of the property decide what they consent to. Now if one neighbor consents to the beheading video but has a guest who does not, the guest may leave but he has no legal recourse, since it is not his property that he is on. (he may have recourse against his host, if the host didn't warn him that he tolerates such displays and will therefore subject his guests to them)

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So then someone who wants to sunbathe nude in his backyard can not possibly know beforehand whether or not his action is illegal?

No, he could know it: if he had the consent of all his neighbors, then as I wrote above any guests of theirs couldn't say boo about it. Now, they could withdraw their consent and ask him to stop. But they couldn't just call the cops. Now, add a "public" street into the matter and you get a muddle. But that's what "public" property does to things, so you must blame "public" property for that.

A smart man would build a fence, or sunbathe on his roof, or live on a big lot in the country, or get his neighbors to sign contracts stating they won't withdraw their consent.

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It is a violation of one's right to not look or listen, the same as the violation of one's right to not-smell.

I disagree. Noxious fumes are not allowed because they harm man's life, and in that way they are an initiation of force against you. I don't think it has anything to do with a right to not look, listen, smell or touch anything.

Rights pertain to freedom of actions, not to any particular existents (such as emotional states). You can't say that you have the right not to be put into any emotional state without your consent, either. I don't see how such a right (or the right to not-see anything you don't like on your own property) is derived from the Objectivist concept of rights.

Saying you have a right to not be offended is like saying you have a right not to be sad. Having the government step in when people take actions that make you sad makes about as much sense as the present scenario, where the government can step in when some action disgusts you.

If you want to prove how these situations constitute a violation of your rights, then you need to make the case based on the primary rights a person has. If you can show how the situations that we've been discussing violate any of these rights, then that would be a proper argument for prohibiting these behaviours.

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Noxious fumes are not allowed because they harm man's life, and in that way they are an initiation of force against you.
That's not the only thing that harms a man's life. Just as you have a right to watch beheadings, if you want to, you also have a right to not watch beheadings if you want to not. If you live safely inside your cave, never venturing out into society, you can avoid having exhibitions of beheadings sprung on you. The point of living in a civilized society is that it is not necessary to live in a cave, that you know that when you are in public you will not be forced to observe objectively disgusting things. You will still have the option, if you want to exercise it.
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That's not the only thing that harms a man's life. Just as you have a right to watch beheadings, if you want to, you also have a right to not watch beheadings if you want to not. If you live safely inside your cave, never venturing out into society, you can avoid having exhibitions of beheadings sprung on you. The point of living in a civilized society is that it is not necessary to live in a cave, that you know that when you are in public you will not be forced to observe objectively disgusting things. You will still have the option, if you want to exercise it.

But the right to not see/smell/hear X is not the essential here. Surely you don't have a right not to see flowers in public? What you should concentrate on is proving why seeing beheadings or smelling noxious fumes or hearing animals being tortured violates your rights. I don't think that has been proven, yet. You need to be able to make a principled case for why certain perceptions should be prohibitable and others shouldn't be, otherwise you can never make Objective laws regarding these issues.

For certain things the reason why it is harmful is clear. You could either show how the other things that have been mentioned in this thread are similar (which would make the same reasoning apply to these objectionable actions), or if they are different, how you can prove that these other things are also harmful (but perhaps in a different way).

Whether or not people are offended by something is entirely irrelevant, as far as a proper argument is concerned. All it can do is give you a pointer in the right direction: "Hey, lots of people are offended by this, why would that be the case?" The reasons for being offended by something matter, not the fact that someone is offended.

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But the right to not see/smell/hear X is not the essential here.
Indeed it is. Are you claiming that others have a right to subject me to loathsome displays if they wish? I'm claiming that they don't, and that they have the obligation to not impose their interests on me.
What you should concentrate on is proving why seeing beheadings or smelling noxious fumes or hearing animals being tortured violates your rights.
The psychological harm is the reason why I should not be subjected to such displays in public. If you haven't watched a tape of a beheading, I recommend doing so, if you think that it constitutes an "ordinary" artistic display. I don't include public nudity: and any of this is fine in a public area if the display / act is physically constrained so that casaul passers-by aren't subject to assault without warning, e.g. behind a screen, on a stage not visible to the street, etc.
Whether or not people are offended by something is entirely irrelevant, as far as a proper argument is concerned.
It does matter, but it isn't sufficient. A display of a political or religious idea that you dislike is not of the fundamentally offensive type that warrants special treatment under the law. Lewd behavior in public, displays or acts of torture and mutilation are, also public harassment. If people were not offended by beheadings, it would not be a matter that should be subject to limits in public. Ogrish.com assembled quite a collection of materials, in case you wonder about the impact of witnessing a beheading.
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Indeed it is. Are you claiming that others have a right to subject me to loathsome displays if they wish? I'm claiming that they don't, and that they have the obligation to not impose their interests on me.

I'm saying that this right is not the essential here, and we should focus on either deriving a principle that tells us which things should be banned, and which are okay, or do it on a case by case basis.

The psychological harm is the reason why I should not be subjected to such displays in public. If you haven't watched a tape of a beheading, I recommend doing so, if you think that it constitutes an "ordinary" artistic display. I don't include public nudity: and any of this is fine in a public area if the display / act is physically constrained so that casaul passers-by aren't subject to assault without warning, e.g. behind a screen, on a stage not visible to the street, etc.It does matter, but it isn't sufficient. A display of a political or religious idea that you dislike is not of the fundamentally offensive type that warrants special treatment under the law. Lewd behavior in public, displays or acts of torture and mutilation are, also public harassment. If people were not offended by beheadings, it would not be a matter that should be subject to limits in public. Ogrish.com assembled quite a collection of materials, in case you wonder about the impact of witnessing a beheading.

Well, I'm not saying that nothing is harmful to man. I'm just asking whoever is advocating these things to prove why the particular concrete they think should be prohibited is harmful to man's life. That's the only justification there could be to banning something like that, and especially for the sex/nudity thing, it has not been established yet.

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Are you claiming that others have a right to subject me to loathsome displays if they wish? I'm claiming that they don't, and that they have the obligation to not impose their interests on me.

Loathsome is such a subjective word though. Any action at all could be considered to be loathsome by another person. A transvestite walking around in their yard could be considered loathsome by someone, a woman bending over to work on her garden could be loathsome, a family eating meat outside could be considered loathsome, or even someone running around in their yard on Sunday could be considered loathsome. Are you saying that if a neighbor is repulsed by any of these things they have a right to make them stop?

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I'm just asking whoever is advocating these things to prove why the particular concrete they think should be prohibited is harmful to man's life.
Okay, here's the short synoptic version. As for lewd behavior, it is generally held that sex is a highly personal and intimate act between two people, that, yes, "sex is special". Debasing sex to the level of an animal act by copulating in public is a denial and mockery of that highest personal value, which is a bad thing, not a good thing. Displays of mutilation and torture are shocking, I think because of the empathy factor (that is, if you watch a beheading, you can actually feel a creepy sensation around your neck as you watch a man's head being sawed off), so it is as though the act is being performed on you. Various smells and noises are physically painful. Harassment deprives you of your right to peaceably enjoy public existence. This is the basis, but naturally the acts have to be defined more precisely, so that this doesn't just become an opportunity to make legal claims by invoking a label.
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Then you agree that Objectivism would sanction forcing ugly people to wear paper bags to save people from the psychological harm of seeing their faces? And we are supposed to believe that rights cannot conflict in a rational society?
Are you addressing anyone in particular? Do you have some reason for believing that someone here would support your misinterpretation of Objectivism?
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Are you addressing anyone in particular? Do you have some reason for believing that someone here would support your misinterpretation of Objectivism?

Only the fact that the "psychological harm" standard you provided has yet to be objectively defined, so is very open-ended.

Edited by Seeker
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basically any form of irrationality is disgusting when someone takes it seriously.

Yes, and this is why it is important to keep in mind that the reason some forms of irrational behavior are banned is never the fact that they are disgusting. There is no "right not to be disgusted," just like there is no "right not to be offended." Murder disgusts and offends me, but that is not the reason murder should be banned; the only reason murder should be banned is because it is an existential disvalue that stands between man and a rational life.

What you should realize is that an unwanted sexual experience is an existential disvalue too. Seeing sexual material does not merely mean that you perceive something and have an emotional reaction to it. Sex matters to your life, just as much as the integrity of his buildings mattered to Howard Roark. When he saw his design of Cortlandt Homes mutilated, he did not just perceive something and have negative feelings about it; his control over his designs was an essential part of his life and it was this control that had been interfered with. It was not his offense or disgust at the alterations that he used to justify the destruction of the building, but the fact that it had been his design--his private property, not meant to be violated by whoever felt like it. Your control over your sexual experiences is--or should be!--just as essential a part of your life; this is why sex ought to be private, and your sex life should be yours. Interference with your sexual integrity is just as much of an existential disvalue as interference with the fruits of your labor.

The premise that sex matters is expressed in the negative through Ellsworth Toohey in Chapter IX of Part 2 of The Fountainhead:

When a boy came to confess a feeling of shame after some unsavory sexual experience, Toohey told him to snap out of it: "It was damn good for you. There are two things we must get rid of early in life: a feeling of personal superiority and an exaggerated reverence for the sexual act."

Miss Rand, I am sure, held the opposite view; it is this premise that her legal position on public displays of sex is based on. And the lack of this premise is why many posters here continue to think that she was either advocating a "right not to perceive" or a "right not to be offended"--since the only events they see happening are the perception of the sexual material and the emotional reaction to it, not the existential effect on one's life.

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What you should realize is that an unwanted sexual experience is an existential disvalue too. Seeing sexual material does not merely mean that you perceive something and have an emotional reaction to it. Sex matters to your life, just as much as the integrity of his buildings mattered to Howard Roark. When he saw his design of Cortlandt Homes mutilated, he did not just perceive something and have negative feelings about it; his control over his designs was an essential part of his life and it was this control that had been interfered with. It was not his offense or disgust at the alterations that he used to justify the destruction of the building, but the fact that it had been his design--his private property, not meant to be violated by whoever felt like it. Your control over your sexual experiences is--or should be!--just as essential a part of your life; this is why sex ought to be private, and your sex life should be yours. Interference with your sexual integrity is just as much of an existential disvalue as interference with the fruits of your labor.

Your sex matters to your life, sure. Your sex life should be private, yes. But unless it's you on the poster, I fail to see the connection here. A lot of human activities we regard as intimate, private matters in our own lives can nonetheless be depicted in public art. The analogy to Roark doesn't work because it wasn't just anyone's architecture being interfered with, it was his.

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Okay, here's the short synoptic version. As for lewd behavior, it is generally held that sex is a highly personal and intimate act between two people, that, yes, "sex is special". Debasing sex to the level of an animal act by copulating in public is a denial and mockery of that highest personal value, which is a bad thing, not a good thing.

I may be opening yet another can of worms here, but I don't see how it follows that a sexual act is automatically debased to an animal act if it is viewed by another person. In what situations where another person sees you having sex is the act suddenly a bad thing (or reduces to an animal act, as you put it)?

You could be having sex and forget to close the curtains; if your neighbor across the street happens to see you, and you never even notice that someone else is watching, I don't see how that can possibly make any impact in how valuable the sexual act is. You having sex doesn't magically become a bad thing because someone else sees it. So, I suppose a sexual act is only in danger of being debased to the animal level by being publically visible if you could not have reasonably known that someone else would see it? Or, to put it differently, how large can the possibility be of someone else viewing your sexual act before it is no longer intimate and personal, and it is debased to an animal act? Is it not acceptable to have any risk of being seen, or can you accept a certain risk of being seen while still maintaining the intimacy of the act?

Certainly, the sexual act can be an animal act. But this is the case whether someone performs it in public or in private. I don't think the value of the sexual act depends to a significant extent upon whether or not anyone else sees it. It is primarily about how both people involved in the sexual act treat it; both in their minds and with their actions. I don't think a proper sexual act can only ever be performed in the privacy of your own bedroom, or of your own home. I can easily think of a situation, where I'm on vacation somewhere in the mountains with the person I love, and we decide to make love under the stars somewhere in the middle of nowhere. I don't think that experience would be in the least degrading, or an animal act, just because we happen to perform it in a public place (it's certainly not owned by us!). There is definitely a possibility of someone else witnessing it, in that situation, but the mere possibility of that happening is just one of many factors that you should weigh to determine whether the sexual act is good, or not.

Now, I think that there is definitely a point at which you cross the line. Deliberately wanting to have sex in front of a whole crowd of people is something I would definitely not advocate. I'm not sure if it is necessarily bad, but I would say that in most cases it definitely is. However, there is a whole continuum of situations between this point and having sex in a completely private situation where no one else can witness the act, and it is not at all obvious that the only proper line that can be drawn is at that point (of it being completely private, with anything less private than that being an animal act).

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This is supposed to be a second post, because it addresses a completely different point, but the forum merged it :)

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And what about nudity? What is the reason why that is illegal in any parts of the public sphere?

Edited by Maarten
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Displays of mutilation and torture are shocking, I think because of the empathy factor (that is, if you watch a beheading, you can actually feel a creepy sensation around your neck as you watch a man's head being sawed off), so it is as though the act is being performed on you.

I dont see how this isnt subjective. Some people may find it shocking, some people may find it cool. How is it different than when a weird looking transvestite is walking around town? Some people will find that shocking and may even get nauseous over it, and other people wont care at all.

Harassment deprives you of your right to peaceably enjoy public existence.

This reminds of paparazzi hounding the celebrities. Do you think that should be illegal?

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Maarten, a big part of Rand's essay in question was the fact that, for many reasons, even rational people will differ in how they think about sex - what is/is not acceptable for them (you certainly see a strong evidence of it here on the boards). She must have regarded at least some of those reasons as legitimate enough to conclude that everyone ought to be free to treat sex in their life as they want - which does mean having control over the sexual content one is exposed to (thus came the restrictions about public exposure without consent).

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I may be opening yet another can of worms here, but I don't see how it follows that a sexual act is automatically debased to an animal act if it is viewed by another person. In what situations where another person sees you having sex is the act suddenly a bad thing (or reduces to an animal act, as you put it)?

You could be having sex and forget to close the curtains; if your neighbor across the street happens to see you, and you never even notice that someone else is watching, I don't see how that can possibly make any impact in how valuable the sexual act is.

The debasement of sex when it is knowingly performed in public view was discussed in this thread.

Both of your examples involve an individual stumbling upon two people having intercourse. This is certainly different from two people engaging in intercourse knowing that there are potential witnesses in the vicinity. Perhaps this is the line that you are searching for?

I dont see how this isnt subjective. Some people may find it shocking, some people may find it cool. How is [witnessing a video of an actual innocent human being brutally decapitated] different [from] [witnessing] a weird looking transvestite walking around town?

These are objectively different to me. The decapitation would be disturbing and aggravating to many because it rattles the value of human life. The latter is probably just unpleasant to view but does not assault our cherished value of human life.

Edited by DarkWaters
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You could be having sex and forget to close the curtains; if your neighbor across the street happens to see you, and you never even notice that someone else is watching, I don't see how that can possibly make any impact in how valuable the sexual act is.
We don't need to consider whether it does or does not, since as with all legal sactions, the act must be knowing. It's not the seeing, it's the showing, just as theft is about the stealing and not the having without permission -- intent is a prerequisite for any legal sanction.
Certainly, the sexual act can be an animal act. But this is the case whether someone performs it in public or in private.
Yup, and you can act like an animal if you want, just not in public. If you want to be an animal in public, where I'm the public being forced to watch, you need my permission first, before you go trashing my values.
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But unless it's you on the poster, I fail to see the connection here.

It's you viewing the poster.

Sex is an interaction between people and much of it is visual. When you are subjected to the sight of a nude poster, it is in a way a sexual act between whomever it depicts and you.

If it were not just a poster but, say, a woman went up to a man and patted his sexual organ, then I'm sure you agree it would be an initiation of intimacy on her part. You'll probably also agree that this requires the man's (not necessarily verbal) consent, as opposed to say tapping his shoulder, which in many contexts does not. Now, taking it one step back, suppose the woman decides to use a different strategy: she stands still and drops her clothes while looking lustfully into the man's eyes. Isn't this still an initiation of intimacy? It's a visual one rather than a tactile one, but I don't see any essential difference--do you?

A poster is a means of communicating something to a wide audience. A woman who drops her clothes and has her photograph taken for a poster while looking lustfully into the camera is in a way initiating intimacy with whomever is going to happen to see the poster. It is not very different from standing on the sidewalk and dropping your clothes while ogling a random stranger. Which, in turn, is not essentially different from walking up to a random stranger and reaching for his crotch. If the latter requires the man's consent and there is no essential difference, why wouldn't the former require his consent?

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