The naked truth about freedom
Should the government stop people from walking around home in the buff?
Public nudity became a topic of conversation worldwide last week when a 29-year-old Fairfax, Virginia man was arrested for indecent exposure after a mother walking with her child reported that he was naked and visible through the windows of his house. She claims he purposely exposed himself to them; he claims he was just making coffee and didn’t realize anyone could see.
Legally, what matters is intent, as the Washington Post article (admirably) discusses: “lawyers say the case…will probably boil down to a crucial question: Did Williamson intend to be seen?…It’s not the exposure itself that makes it indecent. There has to be some kind of obscene intent.”
Morally, not surprisingly, it depends. As I’ve discussed now multiple times, your position will depend on if you fall in the “morality as process” or the morality as outcome” camp. The prior will likely find that intent matters a lot, because it helps determine whether a right is being invoked. If being naked is, around others, an exercise of the right of free expression or, alone, simply of one’s personal freedom, it is protected to a large degree. But walking in the buff in order to cause harm to others is less clearly a right to be protected.
Those in the latter camp, may be more inclined to consider the balance between freedom and harm caused, rather than the intent of the act. Freedom is traditionally constrained by a simple rule: one is free to do what they like so long as they do not infringe on the freedom of another. This of course is impossible to satisfy, for my actions are always infringing on your freedom – when I walk down the sidewalk, I leave you with fewer possible paths to walk. Generally, we don’t consider my walking down the street as an infringement on freedom, for we’ve modified the rule to require an infringement to be “unreasonable” – what we might call “harm.” Hence the “do no harm principle”: one is free to do what they like so long as they do not cause harm to others.
But harm is not easy to define. First, it is subjective. A naked person walking down the street may offend you but not me. And it may offend you a little or a lot. Second, harms are not easily comparable. We can assign the house I burned down a monetary value, but how do you compare that to a punch in the face or the mental anguish of an insult or the personal offense of seeing a naked guy walk down the street?
And how do you compare the harm caused to the freedom protected? Exercising my freedom of speech to criticize gay marriage may cause you great mental harm, but restricting that speech would be a great loss of freedom. Most of us would protect freedom of expression, in this case, but we can image a similar example in which we would probably rule the other way. Say I own a number of neighboring buildings and choose to fill their street-level windows with brutal videos of murder and suffering. I do it for no particular reason – it’s less an act of free expression or an intent to commit harm, than a funny gimmick just to see how people react. Say a school is down the block or a grocery store is on the corner and many people must pass in front of my windows or take a longer, unsafe route to their destination. I suspect fewer people support my right to display such videos than to yell anti-gay marriage slogans.
This suggests that the content and quality of the freedom being exercised matters and that it is not about “do no harm” but rather the balance between harm caused and freedom protected. Measuring this balance is a difficult if not impossible endeavor, meaning we generally must rely on “gut instinct” – hardly an analytically rigorous test, but most often quite accurate. Which brings us back to the naked man in Virginia. We recognize that nudity can be harmful to others, particularly to children. But, for most, the harm caused by a passing glimpse of a man in buff cannot possibly outweigh the value of freedom lost if the state could fine or imprison people for walking around naked in their own homes.
Photo by Flickr user finnadat used under a Creative Commons Attribution license.