Why Is Public Nudity Illegal?

Public nudity is  sometimes more legal than you might think. California will let you go clothes free as along as you’re not engaged in “lewd acts,” for example, and I’ll let you decided what those are—but specific cities, most notably and most recently San Francisco, have enacted their own bans. Other places are even more strict. One man was convicted of public indecency in Fairfax, Va. after a mother and her young son happened to see him naked—through his windows. He was inside, making coffee. His conviction was eventually overturned, but only after about $15,000 in legal costs.

A nude protest at Boehner's office.
A nude protest at Boehner’s office.

Why do we regulate this at all? Is there anything inherently dangerous to the public good about nudity? When asked, most people would say no and in my public nudity survey, most people did. But our countries legal minds tend to disagree. Last year, when several protestors were arrested outside Speaker John Boehner’s office for stripping down in protest of cuts to AIDS research funding, Slate did an explainer. One theory: nudity is too difficult to ignore.

The late political philosopher Joel Feinberg’s“offense principle” offers one persuasive theory for why nudity is illegal. Feinberg argued that an act need not be objectively harmful to merit prohibition—it need only produce an unpleasant mental state such as shame, disgust, or anxiety in observers. Plenty of obnoxious but legal behaviors, like chewing with an open mouth or failure to bathe, can create the same reaction, but Feinberg claimed that nudity has a unique ability to demand our attention. He wrote, “The unresolved conflict between instinctual desires and cultural taboos leaves many people in a state of unstable equilibrium and a readiness to be wholly fascinated, in an ambivalent sort of way, by any suggestion of sexuality in their perceptual fields.” We are drawn ineluctably toward the sexual suggestiveness of the naked body, Feinberg argued, then ashamed of our own reaction.

Yeah, but…

Do I have to point out the obvious circular reasoning here? One of the reasons nudity produces these reactions is because, at least in public, it’s a novelty. We enforce not only strict legal prohibitions against baring in public view, but cultural ideals, too that make streakers at football games and PETA’s naked celebrities newsworthy. If we lightened up a bit, if public nudity were more common, the offense principle would lose some if not a lot of its power. Erase the cultural (and legal) taboo and there’s no more unresolved conflict with our instinctual desires. In other words, get your mind out of the gutter. There’s no reason that nudity has to be automatically associated with sex. That’s a culturally ingrained attitude that’s come about, in large part, because of the taboo. We handle public nudity by criminalizing it, and therefore, make it something worth criminalizing. The criminalization is the only reason for the criminalization.

That, to me at least, means there has to be another, deeper reason at work here. Slate digs in:

It’s difficult to say why nudity makes us so uneasy, but it’s clear that our aversion to nakedness is longstanding and probably religious in nature. When upholding anti-indecency laws, several judges have pointed to the Bible. In 1877, for example, the Indiana Supreme Court noted that “the first exercise of mechanical ingenuity was in the manufacture of fig-leaf aprons by Adam and Eve, by which to conceal from the public gaze of each other their, now, but not then, called, privates.” Public nudity was illegal under English common law, although it was subsumed under the more general offense of lewdness, along with such acts as adultery, fornication, and swearing. Former Chief Justice William Rehnquist has referred to the “ancient origin” of the nudity prohibition.

Ah, Okay

There you have it. Like so many questionable things in our country, discomfort with nudity can be traced back to religion, especially the Judeo-Chrisitan variety. If we’d just start with that knowledge, we’d understand a lot things about the United States—especially why public policies of social prohibitions (alcohol, marijuana, gayness, sex outside of marriage, abortion) come about, the harm they can do, and sometimes, if we’re lucky, why they crumble.