Other people are unwilling spectators to our offensive expression and conduct all the time. I can stand on the steps of the Supreme Court and wave gory, graphic photos of dismembered fetuses at passing schoolchildren. I can wear a jacket that says "Fuck the draft" in a courthouse. I can put cartoons of Mohammed on t-shirts and wear them on the street. Lots of people would find these things offensive, but we don't allow their religious fervor, patriotic sentiment, or just plain weak stomachs to be grounds for censoring the public sphere. Why is sex special? To use legalistic language: unlike decibel limits, this is not a content-neutral restriction. (Or is it? Is a dimension of expression, not content of expression? Can I really express myself sexually if I am not permitted to act on my feelings? In the same way that no other words really convey the sentiment "Fuck the draft," does any other mode of expression really get across what a physical gesture like a kiss does?)
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It just seems odd to say that we can burn flags in public (something many people find so offensive that it provokes violence) but we can't have sex in the bushes at the park because someone might get the vapors.
So now all the lawyers at Volokh are going into long winded legal and political arguments about the whole issue, and talking about "touching" as if they're five years old.
I thought nudity and arousal were supposed to by fun topics. Leave it to a bunch of lawyers to ruin the mood.
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