Friday, May 05, 2006

Lawyers Make Me Nervous

I'm a fairly regular reader at the Volokh Conspiracy. Sometimes they just go places that I don't get. Take this string of entries.
First on Public Nudity.
Public Nudity and Public Sex, Beyond the Yuck: The libertarian justification for restricting public nudity and public sex is complex. There are, I think, two issues here (setting aside the First Amendment issue, which I think is generally not an obstacle for banning public nudity and public sex, whether or not the public nudity and public sex is engaged in for expressive reasons -- more on that later, maybe).
Then there is further discussion on the points especially related to "yuckiness."
Eugene argues that perceived yuckiness should be sufficient to justify regulation of behavior in public space because the space is government-owned and the state has a right to "maximize the aggregate enjoyment of those spaces." I am not convinced that this is sufficient justification. If it is right for the government to ban any behavior in public spaces that the majority considers "yucky" (in the absence of explicit constitutional protection), then - at least in some jurisdictions - that would justify bans on a wide range of activities, including, for example, public handholding between same-sex couples. Moreover, at least as a moral matter, I don't see how Eugene's argument would justify forbidding the state to ban offensive public speech or restricting the presence in public spaces of people belonging to unpopular racial or religious groups.
Which then leads to:
Involuntary Sexual Arousal and Touching: Say that someone intentionally taps you on the shoulder to get your attention, or intentionally pats you on the back to compliment you, or even touches your arm in conversation or hugs you when parting. You might be slightly put off, at least under some circumstances, but the law would (and, I think, should) consider this to be well within the boundaries of permissible behavior. Not all unwanted touchings are batteries.

Say, on the other hand, that someone intentionally touches your genitals, or intentionally caresses your breasts (if you're a woman). In many circumstances, this would be considered a crime. Why the difference? I think that here too there is a connection with sexual arousal -- either the possibility that you might be involuntarily sexually aroused, or the likelihood that the other person is deriving some sort of sexual arousal from touching you.

And then they go into the legal aspects of touching with regards to "pure implied license theory."

Interesting topic, but it gets kind of creepy when lawyers talk about it.

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