Public sex

Volokh, Eugene VOLOKH at law.ucla.edu
Thu Apr 19 14:45:42 PDT 2007


	Well, if the proposal is "offense to others can't be an adequate
justification for conduct restrictions," then it seems to me pretty
important to ask how the proposal would affect one of the quintessential
examples of restrictions justified by offense to others.  I don't think
one can just make the proposal and then "not bit[e]" as to this
hypothetical.

	Malla does point to one possible response, which I take it is
that "offense to others can be an adequate justification when there's a
captive audience present."  Yet the captive audience doctrine in free
speech cases, such as it is, is both quite narrow and not terribly
well-defined.  It is clear that offensive speech in a public park may
not be banned of its content, notwithstanding concerns about a captive
audience.  Would it follow that public sex in a public park likewise may
not be banned?  Or if the captive audience doctrine would apply to
offensive conduct but not to offensive speech, what exactly would the
audience look like?  I'm not saying no such doctrine is possible -- I
just think it would be helpful to outline its boundaries, if one is
discussing the merits of an "offense to others can't be an adequate
justification for conduct restrictions" proposal.

	On the other hand, if Malla is saying that under her proposal
public sex couldn't be banned, and that's a good thing, then we might
want to think whether indeed her proposal is sound.

	Eugene

> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at ajsl.us] 
> Sent: Thursday, April 19, 2007 2:01 PM
> To: Volokh, Eugene; 'Con Law Prof list'
> Subject: RE: Public sex
> 
> I'm not bitting.  You could just as well say that no one 
> should give a penny to a starving man because how would you 
> ever get him to go to work.  
> 
> To use both classic responses to a parade of horribles (i) I 
> don't think this is a likely outcome,(for one thing, we could 
> develop rules like the "captive audience" doctrine in fress 
> speech) and (ii) I don't think it would be so horrible 
> (assuming of course that no one can show any actual harm to 
> anyone from seeing public sex). 
> 
> Malla Pollack
> Professor, American Justice School of Law mpollack at ajsl.us 
> 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, April 19, 2007 3:55 PM
> To: Con Law Prof list
> Subject: RE: Public sex
> 
> 	I myself disapprove of most laws that are based chiefly 
> on people's general sense of offense.  I don't think we 
> should ban the eating of horses, for instance.
> 
> 	But the question is whether such laws ought to be seen 
> as unconstitutional (and, if so, how "offense" can be 
> defined).  And it's not enough, I think, to say that the law 
> isn't close to legalizing public sex.  If the proposal on the 
> table is that offense to others should never be an adequate 
> justification for a restriction, then a ban on public sex 
> would indeed be unconstitutional.  Is that a result that our 
> legal system ought to reach?
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: Malla Pollack [mailto:mpollack at ajsl.us]
> > Sent: Thursday, April 19, 2007 1:51 PM
> > To: Volokh, Eugene; 'Con Law Prof list'
> > Subject: RE: Public sex
> > 
> > The problem is that the law is much closer to banning men 
> from holding 
> > hands in public to make sure that "we" never get to the 
> spot where we 
> > might want to consider banning sex in public.
> > 
> > Malla Pollack
> > Professor, American Justice School of Law mpollack at ajsl.us 
> > 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> > 
> > -----Original Message-----
> > From: conlawprof-bounces at lists.ucla.edu 
> > [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of 
> Volokh, Eugene
> > Sent: Thursday, April 19, 2007 3:44 PM
> > To: Con Law Prof list
> > Subject: Public sex
> > 
> > 	Speaking of offense to others, should it be 
> unconstitutional to ban 
> > people from having sex in public?
> > (Should it only be unconstitutional if the law's proponents are 
> > religious people who rest the law on their religious sensibilities, 
> > but just fine if they are secular people who rest the law on their 
> > secular sensibilities?)
> > 
> > 	Eugene
> > _______________________________________________
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