In the previous week, two short videos were deleted by Tumblr staff from my secondary blog as “sexually explicit”. Troubles never comes alone. A few days later my Vine account was suspended, due to “sexually explicit content”, I suppose. Those videos were related to my personal naturist lifestyle and I was ready for something like that. So I’ve decided to close Vine account and undertake my own investigation into the dark world of forbidden and obscenity. What content should be allowable? Or, much more widely, what restrictions may society impose on the individual? May society impose lifestyle rules? I’ve started from the theory of law.
In 1859, John Stuart Mill wrote the classical essay On Liberty. The object was “to assert one very simple principle, as entitled to govern absolutely the dealings of society with the individual in the way of compulsion and control”. Mill has come to conclusion that “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. Over himself, over his own body and mind, the individual is sovereign” . This point of view is known as so-called harm principle. In contrast to Mill, paternalists (from the Latin pater – father) want to “protect people from themselves, as if their safety were more important than their liberty”, having in mind not only to prevent doing harm to other people, but also to prevent self-harm .
In both approaches, the main issue remains unsolved: What is harm? In our context, is nudity to be restricted on grounds of harm ? Is public nudity harmful? Or does it represent an act “often criminally prohibited”, but, in fact, victimless and harmless?
Whilst it may be questioned whether “violations of good manners” (such as going nude in public place) are genuine harms, Mill “appears to take the view of some contemporary writers that they may be banned because they cause avoidable distress or embarrassment” . In some sense, Mill contradicts his own statement that “we cannot expect to be protected against things which offend us but do us no actual harm”. You may dislike someone’s habits, political beliefs, or clothes he or she wears (or does not wear), but the problem is with you and not him or her. You have no right to insist that someone change lifestyle to make your life more comfortable.
This is not just a theoretical problem about good and bad manners. “For decades, the US courts have struggled with how the law should treat materials that may be offensive to the general public” . According to the ruling of the U.S. Supreme Court, “nudity alone is not enough to make material legally obscene”. The Court’s 1973 guidelines for defining obscenity, laid out in the case of Miller v. California, are still being used today as the basic test to determine if something is obscene [5,6]:
- the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest
- the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law
- the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Law experts explain that “in simple terms, it’s not obscenity unless is shows “hard core” sexual conduct that’s clearly and plainly offensive. There’s no national standard or rule about what’s obscene and what’s not. It’s up to you and other members of your community to determine that. What you and your neighbors consider obscene may not be so to people in another state or city” .
Since, on the one hand, “nudity alone is not enough”, while, on the other hand, the only more or less unbiased criteria of obscenity is “patently offensive” sexual conduct, we can propose our very simple principle that may be helpful in solving the problem. Imagine you observe nude people on the beach, or that you see a photo or video depicting people in the nude. Then, in your mind, cover the nudity with some clothes. If, after that mental procedure, you decide that you are observing a conduct which is definitely non-sexual, it was non-sexual even before the addition of that imaginary clothes.
A few words in conclusion. “The Netherlands instituted a policy in 2006 of showing prospective immigrants an official educational video on Dutch culture that includes scenes of the country’s nude beaches” . Maybe educational videos that include scenes of nudist living should be shown to a wider audience.
 John Stuart Mill, On Liberty, London: Longman, Roberts, & Green Co. 4th edition, 1869.
 Christopher B. Gray, The Philosophy of Law: An Encyclopedia, Vol. 1, Taylor & Francis, 1999.
 Anita Allen, Unpopular Privacy: What Must We Hide? Oxford University Press, 2011.
 Geoffrey Scarre, Mill’s ‘On Liberty’: A Reader’s Guide, A&C Black, 2007.
 Pornography, Obscenity and the Law BY LAWYERS.COM
 Art on Trial: Obscenity and Art