Is Nearly Naked a Nuisance?

A couple in Boulder, CO are being threatened with eviction from their rental house for gardening is very scanty attire (HT: Talk Left). Their landlord is claiming that they are creating a "public nuisance", which violates their lease agreement.

Police officers responding to a complaint found that the couple's dress (or lack thereof) was within the law. The couple, Catharine and Robert Pierce, argue that they are not breaking the law and that their rights are being violated:

"We want our freedom," Robert Pierce said. "We want exactly what the law gives you, and we don't want to be harassed about it."

My initial reaction to this story was mixed. At first I laughed at the seemingly prudish attitude of those quoted. And then I laughed at the transparency of these two aging hippies who appear to simply want to shock their neighbors. But there is an important issue involved in this story.

Wikipedia describes a "public nuisance" as:

In English criminal law, public nuisance is a class of common law offence in which the injury, loss or damage is suffered by the local community as a whole rather than by individual victims.

In the case of the Pierces, the alleged harm is resulting from the proximity of their home to nearby parks and school. Their landlord claims that their behavior is harming the community.

A community is nothing more than a number of individuals. A community--or any group--does not possess rights separate from its members. The only "rights" possessed by a community--or any group--are those possessed by the individuals comprising it. And those rights apply equally to everyone, including non-members of the group. In this context, if particular individuals are not being harmed, then some undefined entity known as "the community" is certainly not being harmed.

While there is no such thing as a "public nuisance", there are legitimate laws regarding nuisances. These pertain to property use or actions that pose a real and objective threat to other property owners. Actions such as loud music or sending noxious fumes over a fence are properly addressed through nuisance laws. However, those subjected to such actions can be identified--that is, real individuals are suffering real harm.

So the real question is whether nearly naked in public is truly a nuisance. Certainly, there are many among us who would argue yes. Children, they might argue, should not be subjected to such sights--it could cause them mental harm. But if the mere assertion of psychological harm were a valid claim against the actions of others, then virtually every one of us could make myriad claims against other citizens. For example, here is a partial list of things that really annoy me: gargoyles, pink shutters, people who chew with their mouth open, bumper stickers for liberal causes, bumper stickers for conservative causes, writers who use too many commas, and lists of annoying things. Such actions, while perhaps obnoxious or annoying, are not an objective threat to one's psychological well-being.

Psychological harm can be a violation of our rights, but only when objectively demonstrable. For example, if an individual burned a cross in his yard and hung nooses from his trees he has not damaged anyone's property or made an overt threat of physical harm. But his actions could instill fear in his neighbors, and particularly black neighbors. Such actions are an implied threat, given the history of such actions. Experiencing fear in such a context is an objective response.

The principle underlying valid nuisance laws is that each property owner has the right to the peaceful enjoyment of his property; the property owner must also recognize the mutual right of others. This is contextual--what is appropriate in a rural setting may be inappropriate in an urban or suburban setting. For example, conducting target practice in a suburban neighborhood violates the rights of one's neighbors--there is a real and objective threat of harm posed by such actions. What is appropriate in one's back yard or the privacy of one's bedroom, is not necessarily appropriate in one's front yard.

Being nearly naked in public poses neither an objective psychological threat nor a physical threat (complete nudity is another issue). It may be obnoxious and boorish, it may be disgusting to witness, but it does not violate the rights of anyone.