Why Is Public Nudity Illegal?

A brief history of the fig leaf.

Naked protest inside Speaker of the House Rep.John Boehner's office.
A Naked protest inside Speaker of the House John Boehner’s office on Tuesday.

Video still from fsntv.

Capitol police officers arrested three protesters on Tuesday for disrobing in the lobby outside of Speaker John Boehner’s office. The demonstrators were charged with lewd and indecent acts for their role in a protest against proposed cuts to AIDS funding. Why is public nudity illegal?

Because it’s so 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.

Most states completely prohibit the public display of genitalia, but the exceptions demonstrate Feinberg’s theory. Oregon prohibits only nudity “with the intent of arousing the sexual desire of the person or another person.” In other words, public nudity is OK, as long as the nakedness isn’t designed to make others think of sex. The statute demonstrates how uncomfortable people are with their own reactions to nudity.

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.

Feinberg’s theory on the nudity taboo is just one of many. Appeals court judges have formulated a variety of explanations, usually in the process of upholding laws against exotic dance establishments. Justice Souter, for example, argued that certain kinds of public nudity can be outlawed because of “pernicious secondary effects” like prostitution and sexual assault. Proponents of San Francisco’s ban on public nudity are concerned about the effect rampant nudity has on neighborhood businesses. Others worry that nudity undermines public hygiene. Justice Scalia believes that some acts are simply immoral, and lumps public nudity in with “sadomasochism, cockfighting, bestiality, suicide, drug use, prostitution, and sodomy.” (Scalia wrote his anti-nudity opinion before the Supreme Court struck down state sodomy laws.)

Some legal scholars have noted that the Supreme Court’s anti-nudity cases have more to do with their own discomfort with nakedness than they do with logic. Even the noted 7th Circuit judge Richard Posner argued that “censorship of erotica is pretty ridiculous,” and attributed widespread judicial approval to the fact that judges are “middle-aged or elderly men” who are “snooty about popular culture.”

Tuesday’s arrest of naked AIDS activists demonstrates an important point about public nudity—the taboo can be used as a weapon by either authorities or protesters. Nudity has become an important tool in social movements. In some cases, the naked body is merely an attention-grabbing spectacle. People for the Ethical Treatment of Animals, for example, has featured nude celebrities to great effect in advertisements. For other groups, nudity is closely tied to the message. Act Up, which was involved in Tuesday’s protest, believes that public figures avoid discussion of AIDS because it involves uncomfortable topics like sex and homosexuality. Putting naked protesters in their offices is supposed to force them to confront taboos.

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Explainer thanks Amy Adler of New York University School of Law, Anita Allen of the University of Pennsylvania Law School, author of Unpopular Privacy: What Must We Hide?, and Brett Lunceford of the University of South Alabama, author of Naked Politics: Nudity, Political Action, and the Rhetoric of the Body.