Nuisance and Pornography

 Posted by on 4 April 2008 at 6:44 am  Law, Objectivism
Apr 042008

Paula Hall recently sent me the following inquiry:

I was browsing the Ayn Rand Lexicon and came across the following [in the entry on free speech]:
Only one aspect of sex is a legitimate field for legislation: the protection of minors and of unconsenting adults. Apart from criminal actions (such as rape), this aspect includes the need to protect people from being confronted with sights they regard as loathsome. (A corollary of the freedom to see and hear, is the freedom not to look or listen.) Legal restraints on certain types of public displays, such as posters or window displays, are proper but this is an issue of procedure, of etiquette, not of morality.

The rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive e.g., sexually explicit posters may properly be forbidden in public places; warning signs, such as “For Adults Only,” may properly be required of private places which are open to the public. This protects the unconsenting, and has nothing to do with censorship, i.e., with prohibiting thought or speech.

[The NoodleFood reader continues:] I can readily understand the concept of statutory rape. I am having difficulty with the notion that “[l]egal restraints on certain types of public displays . . . are proper,” when the context refers to displays on private property — no matter what the content. Rights can be violated only through physical force, and words and pictures are not force. Since when has there been a right not be “confronted with sights [a person] regard[s] as loathsome?” By what public standard could anyone determine what was “loathsome” and subject to restriction?

I am inclined to assume that I am missing something, rather than that Rand is inconsistent(!). What am I missing?

Paul and I have discussed this matter at some length, but I don’t have time to write up our present view in any detail. Very briefly, our view is that the government can properly forbid nuisances as a kind of tort. However, a nuisance is not just something that someone doesn’t like. Rather, it’s an unavoidable, perceptual impingement, such that a person cannot go about his ordinary business in its presence. Examples of nuisances would include bright lights, loud music, and nasty smells — but not a Mexican flag, a mural of a nude woman, or rap music at a normal volume. The particular content of the nuisance is irrelevant. A person has no right to be protected from exposure to disagreeable aspects of the world. That would open the door wide to all kinds of rights-violating restrictions on speech. However, a person does have a right not be “assaulted” by physically painful or unavoidably distracting percepts via some kind of nuisance law.

Some of that analysis fits with Ayn Rand’s quoted comments, but not all of it. If we disagree with her on this fine point of legal philosophy, so be it. However, since neither Paul nor I are experts on philosophy of law, we’re definitely interested in hearing arguments on all sides.

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