The Offense of Public Nudity

Mark Storey

[This article originally appeared in Nude and Natural, Vol. 22.2, Winter 2002]

MOST AMERICAN LAWMAKERS have accepted some form of the Harm Principle as justification for laws prohibiting a given behavior. The principle states, loosely, that communities are justified in prohibiting actions when those actions cause harm to others. Robbery, murder, rape, and assault harm others, and are thus justifiably prohibited by criminal law.

As it stands today, criminal law prohibits most actions seriously harmful to others, and if not prohibited, the actions' harmful natures: like those of second-hand cigarette smoke, pornography, and the medical use of marijuana—are hotly debated.

There are many ways of arguing for the prohibition of an action. Legal Moralists will appeal to the immorality of the behavior in question, or to its negative effect on the "moral fabric" of our society.¹ Legal Paternalists will appeal to the harm the act does to the actor, such as laws that mandate the wearing of seatbelts or helmets. The libertarian strain in this country tends to balk at paternalist approaches to law, and authors of legislation usually argue for the bill's merits under other terms.

There are variants to each of these lines of argument. A third distinct line is relevant to naturists today. More often than not, if a new law is proposed that limits the freedom to be nude, it is justified by an appeal to offense. Any of us may be offended by any number of things. Some people are more offended by certain behavior than others are.

Public nudity supposedly offends many people. But legislators are hard-pressed to show that public nudity per se harms anyone (although some are now making unsubstantiated claims about a negative effect on children). On the other hand, legislators have little footing in showing that public nudity is immoral other than to appeal fallaciously to cultural norms.²

Still, legislators often wish to ban all public nudity, or may feel pressured by constituents to do so. These days, a lawmaker who wishes to ban public nudity will often argue that public nudity offends people, and that because of the seriousness of the offense, such nudity may justifiably be prohibited by criminal law.

The issue of offense is thus of great importance to naturists in America today. A flippant naturist response is to say, "The offended parties be damned; we as naturists have the right to do what we wish as long as we are not harming anyone." Or, "People will be offended by anything; offense thus should not be relevant to law." These responses fail to acknowledge the complexities of offense, and do not take into account sensible principles thoughtful lawmakers, discerning judges, and liberty-loving naturists can fruitfully bring to the discussion.

Some naturists take the opposite tack. "We should not be naked in public because it will offend people and cause them to pass more stringent 'indecent exposure' laws," they might say. Or, to blend an appeal to offense with a form of Legal Moralism, they might argue, "It's wrong to offend people, so we should never be naked in public. We should limit our nudity to our homes and nudist clubs."

Given the limitations of this discussion, the last two naturist responses can be addressed only briefly. The first merits careful attention at another time due to the concern over a legislative backlash against naturists. Suffice it to say here that rarely is ground gained for social justice without a few courageous souls moving forward, pushing cultural and legal envelopes, to make way for the more timid—albeit equally oppressed—group.

We must also keep in mind that behavior that offends is not only morally permissible at times, but obligatory. Martin Luther King, Jr. offended many people as he marched the streets of Birmingham in 1963. Mary Wollstonecraft offended many Britons as she fought for women's rights. Jesus offended those around him in ways that left his undiscerning followers incredulous (see Matthew 15:12, for example). Offense per se is thus not morally wrong. The question is, what offending behavior is censurable and merits prohibition? When, and in what contexts?

The purpose of this discussion is twofold. First, it will outline many of the common-sense principles legislators should—and sometimes do—appeal to in considering a law banning an offending behavior. Second, it will show how naturists may effectively argue that non-lewd public nudity should not be prohibited outright by criminal law. There is not space here to develop each thread of the required argument, but its feasibility will be apparent.

This discussion does not seek to show that naturists are justified in walking down any street naked, although such a moral right may actually obtain. Nor does this discussion seek to make any comment on whether other potentially offending behaviors (e.g., public sex, "hate" speech, animal sacrifice rituals) should be free from the limitations of criminal law. The focus here is limited to the relevance of offense in crafting laws prohibiting public nudity.

It is unfortunate that many lawmakers, especially at the local level, either cannot or will not approach the complex issue of offense thoroughly and dispassionately. Moreover, when it comes to public nudity, they often feel that failure to support a ban would be political suicide and thus ignore a full discussion. This should not stop naturists from thinking through their positions in detail.

The Nature of Offense

Joel Feinberg, retired professor of philosophy at the University of Arizona, is a respected scholar in the field of social philosophy. His four-volume series, The Moral Limits of the Criminal Law, and especially Volume II, Offense to Others, outlines in clear detail many of the issues surrounding the legal prohibition of offending behavior.³

Much of what follows comes from Feinberg's work. Although not a naturist himself, Feinberg often uses naturism as an example of non-harming offending behavior. Defenders of naturist rights will not agree with Feinberg's conclusions at every turn, but should be grateful for his careful articulation of the principles useful in the discussion.

What is an offense? Feinberg distinguishes it from a harm. A harm, he says, is a wrongful setback of interests. That which we need to function fully and fruitfully as humans is an interest. We have an interest, then, in being alive, being healthy, retaining our possessions, being free to move about, having the opportunity to learn, having liberty to associate with friends, and so on. Any act of another that sets back such interests harms us.

For an act to be a "harm" worthy of legal prohibition, it must also be wrongful. In short, there are situations in which we may willingly allow ourselves to have our interests set back—such as when we freely enter a boxing match, play rugby, or climb dangerous mountain peaks. We may get hurt in such situations, but we have not been wrongfully harmed.

An offense does not set back our interests. To speak metaphorically, it is an itch on the elbow, while a harm is a broken arm. Still, offenses are unwanted states. Feinberg offers a list of offenses that will seem trivial or serious, depending—oftentimes—on one's point of view.

Offenses are usually unwanted emotional states and can vary greatly. Offenses include states of affront to the senses (e.g., an ugly sight, noxious smell, or grating sound); disgust; revulsion; shock to moral, religious or patriotic sensibilities; shame; embarrassment; anxiety; annoyance; boredom; frustration; fear; resentment; humiliation; and anger (10-13).

These are temporary states we prefer not to experience, but which normally do not keep us from living a full, flourishing human life. Legislators thus are unjustified in prohibiting them as harms. When the offense is serious, however, the question arises as to whether something might not be done to discourage the behavior.

The observation of public nudity offends many people. People offended at seeing others naked describe sensations of embarrassment, anxiety, shock, annoyance, shame, and other—perhaps irrational—emotional states. The mere "bare knowledge" of public nudity—knowledge that someone, somewhere, at some time might be naked in public—might be enough to offend some with the most tender sensitivity to nudity.⁴ The question is, what should be the limitation of the state's power to protect people from these kinds of offenses?

Feinberg argues that those who would grapple rationally with these questions should consider a set of factors that help determine both the seriousness of the offense and the reasonableness of the offending conduct. The more serious the offense, the more grounds there are for the state to take action in discouraging it; the less serious the offense, the less warrant the state has for interfering with personal liberties. Moreover, to the degree that the offending conduct is reasonable—all else being equal—to that degree the offending actor should have the legal right to that conduct (25-49).

Feinberg is in line with Aristotle, who said some types of questions allow for clear, precise answers, while others do not. Questions pertaining to mathematics, for instance, tend to have definitive answers. Questions on morality or politics, on the other hand, must be approached with more flexibility.

The factors Feinberg outlines provide a general, sometimes hazy, approach to determining when the state is justified in limiting public nudity. We should expect no more than this, for the line demarcating harm and offense is too often blurred. That's just the way things are. Fortunately, there is enough clarity available that thoughtful naturists and legislators may go a good distance toward fair and just social policies in addressing concerns over offense.

Seriousness of the Offense

The seriousness of an offense may be determined by (but is not limited to) the following considerations.

The intensity of the offense. The more intense the offense would be to a standard observer, the more serious it is.⁵ Thus the offense from hearing a neighbor practice drums indoors for one hour each afternoon is not as serious as that which comes from hearing him practice outdoors beneath your bedroom window for two hours in the middle of the night.

Obviously, some people will find public nudity more intensely offensive than others. Courts and legislators, ideally, would try to determine how intense the offense would be for a "standard" person or for a "reasonable person." Such estimations are often made by juries.

Public nudity will elicit a fairly strong reaction, but it may not be as intensely negative as many naturists and non-naturists imagine. Activists like Vincent Bethell, photographers like Harvey Drouillard and Spencer Tunnick, and filmmakers like Charles MacFarland have contested the standard claim that people will automatically collapse in offended apoplexy at the sight of a naked body in public. More study, however, needs to be made in this area to move beyond anecdote.

The offense taken at public nudity should not be compared only to such trivial offenses as seeing someone walk down the street in garish colors, but to those offenses that on a nearly universal level produce powerfully intense reactions, such as public defecation. In a broad context, witnessing the human body is just not that big of a deal. Negative reactions to the sight of nude humans are learned behaviors. We are not born with an innate sense that nudity is bad, but acquire it through cultural conditioning.

Still, public nudity will provide what many consider an intense offense, so that must be weighed honestly by naturists. No one should desire to offend people without good reason. Other factors need therefore be considered.

The duration of the offense. The longer the unwanted offending sensation lasts, the more serious the offense. For example, when someone walks by an egregiously smelly man on the street, the odor will offend the passerby, but only for as long as she smells the malodorous man. Once she is out of olfactory range, she may recall the offense, but is no longer suffering the offense. On the other hand, if she walks by and overhears two men using the foulest of language in discussing a particular ethnic group, her offense may last for days.

The duration of someone's offense at seeing a naked ocean swimmer or backyard sunbather is most likely to be of short duration. The offended party may experience discomfort in witnessing public nudity, but the offended state is not likely to last much beyond the experience in question. Considering, then, only the duration of the offense, public nudity appears to be at worst a rather trivial concern and not worthy of harsh criminal sanction.

The extent of the offense. The more people who are likely to be offended by a given behavior, the greater the state's justification for taking action to discourage that behavior. Most people would find a loud, piercing noise to be terribly irritating. But few would find, say, vintage Barry Manilow songs to be more than a mild annoyance. The state would therefore have more cause to respond to complaints about loud, piercing noises than it would to complaints about a neighbor's fondness for bad '70s pop music.

What would be the extent of the offense at non-sexual public nudity? According to the Naturist Education Foundation's 2000 Roper-Starch poll, 80 percent of American adults think people should be able to swim or sunbathe nude in locations set aside for that purpose, and 25 percent of American adults have practiced some form of mixed-sex skinny-dipping or nude sunbathing.⁶ The poll did not address people's tendencies to be offended at nudity in public, but did hint that the extent of offense may be smaller than many think. This is an issue that deserves far more empirical study.

The standard of reasonable avoidability. If it is relatively easy for people to avoid a particular offending behavior, then given the prima facie value to personal liberty, the state should allow that behavior. Since the behavior does not harm anyone, and since no one need be offended given the ease of avoiding it, people should have the right to act in that potentially offending manner.

This is one of the reasons why communities usually allow books and magazines to be sold in stores even if their content might offend people. It is quite easy to avoid being offended: people simply avoid picking up those books and magazines and looking at them.

On the other hand, some communities demand that magazine stands use blinder racks to shield people from nudity on magazine covers. It may be easy to avoid perusing the pages of salacious magazines, but it may be much harder to avoid seeing the covers if they are on open display in a store.

Naturists do well to draw attention to this mediating factor when arguing for a nude beach or private park. The Naturist Action Committee has argued for years that informative signs placed at the entrance of clothing-optional areas can do wonders to forestall offense. If people know that if they walk down a stretch of beach they may encounter nude sunbathers, then they can easily avoid getting offended.

The Volenti Maxim: "Volenti non fit injuria," or "To one who has consented, no wrong is done." This common-sense principle holds that if people freely and knowingly consent to experiencing a behavior that offends them, then they are not wrongfully offended and the offending actor is not culpable. For example, people shouldn't get to gripe about being offended by nudity if they knowingly went out of their way to see naked bodies at a secluded beach.

Once again, naturists will point to the efficacy of signs alerting people to clothing-optional areas in forestalling unwanted offense. If signs are posted informing people that an area may be used for nude sunbathing, then anyone who continues past the sign and is offended by the sight will be doing so voluntarily, and has no grounds for complaint.

Since naturists usually request that a mere portion of, say, a coastline be recognized as clothing-optional, those offended by nudity will have many reasonable alternatives for their beach recreation (keeping in mind the standard of reasonably avoidability). Moreover, the signs alerting people to the site's nude use serve double-duty in helping people easily choose to avoid entering an area where they may be offended. Thus only those who wish to be offended will be so.

The discounting of abnormal sensibilities. If only one person in a town is deeply distraught at the sight of purple T-shirts, this would surely be counted as an abnormal sensibility. His offense is nonetheless real. He may very well feel nauseated at the sight of such garments. Still, the state would not wish to prohibit purple T-shirts on this basis alone. If, however, the vast majority of a community experiences a seething, visceral need to retch when coming across purple T-shirts, Feinberg argues that the state is right to take this into account in prohibiting the offending cloth.

A question that cannot be addressed fully in this discussion is whether offense to public nudity is the result of an abnormal sensibility. Even if the majority of Americans would be offended at the sight of a naked person walking down the street, it does not follow that that this is a normal response. Naturists can argue that it is abnormal for any person to be offended by mere nudity, given that nudity is our natural state and merely reveals our bodily selves.

The point worth exploring is whether a society can be so twisted, mixed up, neurotic, or otherwise confused as to be guided by abnormal sensibilities. We might recall America's "normal" sensibility regarding interracial dating or the right of women to vote. It seems that "abnormal sensibility" must refer to more than just a head count of who would and who would not be offended by public nudity.

PART II Continued here