Unpopular Privacy: What Must We Hide?

By Anita L. Allen | Go to book overview
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4
NUDITY

A Canadian might just get away with topless nudity on a city street.1 But a New Yorker could expect to wind up in jail (or a mental hospital) for strolling half naked down the street. In 1972, a New York woman was arrested for sunbathing naked at the beach, but shortly after a court cleared her of criminal charges on the ground that she had not behaved lewdly, the legislature changed the law to clarify that all public nudity is forbidden, even if the intent is not lewd.2 Law, custom, and morality demand keeping clothing on around strangers in the United States.

Nudity is commonplace in the arts.3 Yet with a few exceptions, the nudity and eroticism the law permits in artwork is not permitted on the streets, beaches, or parks. Laws in the United States even restrict some nudity behind closed doors. One variety of nakedness-behind-closed-doors that the law restricts is totally nude dancing, a popular form of adult entertainment.4 Consenting adults pay other consenting adults to perform in the nude at private parties and in bars, clubs, casinos, and peep shows open to the general public. A strong belief that it is a good thing to leave sexually immodest people alone to strut and gyrate in the nude competes in the United States with a strong belief that it is a good thing to protect society from nakedness that endangers, demeans, and shames. The result is local and state laws that ban totally nude dancing.

The First Amendment of the United States Constitution protects freedom of speech and expression.5 The Fourteenth Amendment protects liberty of action.6 Still, state and local laws compel sexual modesty. Of course, law cannot make anyone truly modest. The sanctions the law threatens, however, can impel even the least modest men and women to behave in public as if they were paragons of that saintly virtue. Modesty practices can be and are coerced.

The US Supreme Court has upheld statutory bans on totally nude dancing.7 Over First Amendment challenges, the Court has validated efforts by state and local officials, first, to force vestiges of traditional moral conceptions of sexual modesty onto performers through pasties and g-string clothing requirements; and, second, to address societal harms—mainly prostitution, drugs, sexually transmitted infections, and violence—that officials reflectively link to public nudity.

Striking polarities of jurisprudential thought surround the issue of commercial nude dancing. According to judicial perspectives at one end of the spectrum, it is

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