Public sex, where it would be clearly offensive and/or disruptive to others, is probably within the harm principle and should be (and is) illegal as well.I have been puzzling over this particular extension of the harm principle for years. I asked Randy Barnett about it once and didn't get a satisfying answer (apparently all will become clear to me once I breed, which means I'll never get it!). I asked the Feministe folks what they thought. One person made what I thought were some rather off-topic remarks about schools and businesses and confused content neutral regulations like decibel limits with content based regulations like limits on public sexual expression. The original commenter replied:
I agree that there’s a fine line there, that we need to be careful with. It’s one we’ve got to draw though, as we draw it with free speech. In a general sense, I don’t think it’s repressive: expecting some degree of cultural and contextual sensitivity of people living in any society seems reasonable. The question is what degree? In London, or Mumbai, I could walk down a crowded street holding hands with my boyfriend and be reasonably sure I’m not doing anything context-inappropriate: making out with him would probably cross the border in Mumbai, and standing too close to him would cross it in some village in the Punjab. A policeman coming up and advising me not to do it wouldn’t be “repression”, I don’t think. Being attacked by the policeman, on the other hand, would.Now expecting people to be sensitive to others is nice, and should be encouraged by civil society, but I'm more interested in the appropriateness of state regulation. A police officer who tells you not to engage in some kind of sexual behavior presumably has more authority than the average citizen; you might be fined or punished in some other way, or you might be arrested and taken into custody. This part of the argument seems unpersuasive.
Other people are unwilling spectators to our offensive expression and conduct all the time. I can stand on the steps of the Supreme Court and wave gory, graphic photos of dismembered fetuses at passing schoolchildren. I can wear a jacket that says “Fuck the draft” in a courthouse. I can put cartoons of Mohammed on t-shirts and wear them on the street. Lots of people would find these things offensive, but we don’t allow their religious fervor, patriotic sentiment, or just plain weak stomachs to be grounds for censoring the public sphere. Why is sex special? To use legalistic language: unlike decibel limits, this is not a content-neutral restriction. (Or is it? Is a dimension of expression, not content of expression? Can I really express myself sexually if I am not permitted to act on my feelings? In the same way that no other words really convey the sentiment "Fuck the draft," does any other mode of expression really get across what a physical gesture like a kiss does?)
Even if you don't buy the sex-as-expression argument, even though it's clearly communicating something between the parties engaged in it, why is preventing offense a legitimate state interest in this case and not in other cases? If you have a right to have sex in your home, we can't regulate it, even if your community knows what you're doing and finds it totally offensive. Why does the public actually seeing it, as opposed to knowing about it, make a difference?
It just seems odd to say that we can burn flags in public (something many people find so offensive that it provokes violence) but we can’t have sex in the bushes at the park because someone might get the vapors.
UPDATE: I neglected to mention my other objection to Annie's response. Does anyone else have a problem with saying that our right to engage in public sexually-charged behavior is entirely dependent on community norms? If that sort of relativism is the standard, then we're one reactionary religious movement away from sexual segregation.
UPDATE II: Welcome, Instapundit readers. This old post suddenly has become relevant again.
I will be moderating the comments section. If you are not substantively contributing to our discussion of the harm principle's application to regulation of public sex or nudity, you will be deleted. Please read the main comment thread before weighing in. Many of your ideas have already been discussed in some detail.