By The Oregonian reports, delightfully, Man arrested after 'masturbating vigorously' in public because he 'hates Portland'.
So would his rationale change this from just a run-of the mill date with Palmela Handerson into protected activity?
It just might.
After all, nudity can be so ennobled, so why not evicting the testicular squatters?
A few years ago, a guy decided to take his vintage 10-speed bicycle for a spin through the streets of Portland while wearing nothing but a bicycle helmet.
Portland Police were not amused. They arrested Hammond for indecent exposure under Portland, Or., City Code § 14.24.060, which states that "it is unlawful for any person to expose his or her genitalia while in a public place, or a place visible from a public place, if the place is open or available to persons of the opposite sex." However, Mr. Hammond's conduct was held to be protected speech.
A few weeks after he participated in the World Naked Bike Ride in Portland, Hammond and a friend were dismayed at the amount of traffic in front of his house. He and Geis then stripped down and held their own small nude bike ride to "express a message in support of bikes and against cars, foreign oil, the Iraq war, and air pollution." (source) The appropriately-named Multnomah County Judge Jerome LaBarre (you can't make this stuff up) dismissed the inevitable charges that followed.
LaBarre said the city's annual World Naked Bike Ride — in which as many as 1,200 people cycled through Northwest and downtown Portland on June 14 — has helped cement riding in the buff as a form of protest against cars and possibly even the nation's dependence on fossil fuels. (source)
Hammond's defense that his nakedness was protected expression and therefore beyond the purview of the Oregon nudity ordinance drew support from Portland v. Gatewood, 76 Ore. App. 74 (Or. Ct. App. 1985). In that case, the Appellee argued that the language of Portland City Code § 14.24.060 was overbroad because it prohibited speech that is protected under Article I, Sect. 8 of the Oregon Constitution, a provision that is even more protective of free speech rights than the First Amendment. Under the ordinance's plain language, nude protests or theatrical productions would be banned. The Oregon Court of Appeals upheld the ordinance, but did so by interpreting it as containing implied constitutional safeguards.
We read the challenged ordinance as focusing on the goal of regulating conduct which the city council has determined to be injurious to health, safety and morals, i.e., the prohibition of public nudity or indecent exposure not intended as a protected symbolic or communicative act. Id. at 82.
The Gatewood court also held that "[t]he question of whether nudity in a particular case is a symbolic or communicative act is a question of fact." Apparently, in Hammond's case, Judge LaBarre determined that the facts supported Mr. Hammond's position that he was engaged in symbolic political speech — thus the Ordinance (under the view expressed in Gatewood) did not apply. In a similar case, in Oregon, a guy who stripped naked to protest the TSA was also acquitted.
Meanwhile, a Federal Court in Utah held that masturbation is not protected activity. In Bushco v. Shurtleff, Judge Dee Benson rejected an argument that restrictions on masturbation "for a fee" did not violate the First Amendment. But, that is certainly distinguishable from this case.
So what about our humble protagonist? Protected activity, or is that just whack?
According to the article,
When Andreassen saw the officer, he "put his penis back in his pants and began to walk away." Documents say that when the officer asked Andreassen whether or not it was appropriate to masturbate in public and why he was doing it, Andreassen told the officer that he was on meth and wanted to go back to prison, because he "f–ing hates Portland."
Therefore, I'd say on balance, the "hi I am on meth" probably renders his free speech defense rather flaccid. His stated wish to go back to prison just might be granted.
However, I think that the Gatewood decision leaves the question open as to whether you might be able to beat off in public there because you "fucking hate Portland."
Expression of hate for a municipality would seem to be core protected activity. And, being on meth or wanting to go to jail probably shouldn't change your constitutional rights, the Greenwood decision makes it clear that the trier of fact has to decide whether the otherwise-indecent conduct is communicative or expressive.
Last 5 posts by Randazza
- Randazza: Public Masturbation as Protected Speech? - May 15th, 2017
- Randazza: 400,000 Reasons to be a Good Little Pet - May 9th, 2017
- Randazza: No Laughing Matter - May 8th, 2017
- Randazza: What is at Stake in the French Election - May 7th, 2017
- Randazza: I was on Infowars (and I liked it) - April 26th, 2017
Depends why you hate it.
Also, seems to be a a mini-trend.
" Man arrested after 'masturbating vigorously' in public because he 'hates Portland'."
You see, I would just move. Problem solved. Did he ever think to just do that?
arity –
One the one hand, a meth-head would probably not be able to think these things out.
On the other hand, a meth-head would probably not have a lot of moving expenses.
@arity:
I don't know if you've ever moved before, but jerking off is way easier than moving.
I thought spitting was the generally understood way to express hatred. Possibly urinating. Is he expressing himself in an ineluctably masculine way, or just an ineluctably Oregonian one?
Never heard of a "hate fuck?" Maybe this was a "hate spank"
It SHOULD BE free speech. It was the equivalent for Diogenes, and fits with my Neo-Cynicism project:
http://socraticgadfly.blogspot.com/2014/12/is-world-ready-for-some-neo-cynicism.html
So, Marc, if I theoretically wanted to maximize my free speech protection here, what should I do before cranking it in public?
Maybe wrap myself in a (semen-covered) American flag? Wear a Donald Trump wig? Ritually burn a picture of Portland and then jerk off onto that?
Asking for a friend.
Even accepting that public masturbation is speech, could the government still show a compelling interest to restrict it? Had this guy *ahem* finished his speech, he would have left bodily fluids out on the sidewalk. Those fluids might contain communicable diseases, not to mention that it would seem like a form of vandalism (e.g., like spray painting a building, although this would be easier—albeit more disgusting—to clean than spray paint). That seems like the kind of thing the government could point to when arguing that public masturbation should not be protected.
Or maybe the answer is that jerking off in public is protected speech, but the government can restrict finishing. Hell, I have no clue. Good luck to whoever wants to be the test case.
Per Gregg, I think Aisle 6 Cleanup, so to speak, would be a legit govt action. So, men? Masturbate in Portland with a condom on. I'm not female, so, I'll let a woman answer on that side.
No children around would also be a legit govt action. So, avoid day care centers and otherwise only do it during school hours, maybe?
How does one apply the Miller test to performances?
That seems like a separate issue to me, considering that it is possible to masturbate without leaving your fluids in a place where someone else might come in contact with them.
I think we may be misinterpreting his "I hate Portland", in light of his other statements.
It's not "I hate Portland and therefore I will express this through the visual medium of public masturbation". It's "I hate Portland and therefore I am hoping that by violating this law in public I will be taken out of Portland and sent to jail, because jail is better than Portland".
In essence, he's not masturbating to show us how much he hates Portland, he's masturbating because it will help him get out of Portland. It's therefore not considered speech, but rather an attempt to violate a law for personal gain – even though, in this unusual case, that personal gain will only be realized if he is caught and convicted.
There are no non-religious rationale for why public nudity should be banned. It's either aesthetic "I shouldn't have to look at gross naked people", which would justify banning ugly people, or religious "sex is wrong and nudity is wrong and you're going to hell"…
A valid law would require covered genitals if taking public transportation or sitting on a public space, but banning nudity because we're a Judeo-Christian society is the same as banning alcohol sales on Sunday
@Adrian —
Jerking off in public as a mode of male self-expression is not unique to the Pacific northwest. I used occasionally to go to a movie when I had a couple of hours to kill between appointments in the same part of town (NYC) and didn't want to spend half of it on travel. So I can tell you for a fact that going to movies during the day in an uncrowded theater in Manhattan when female is evidently the kind of thing that moves some men to comment by thus expressing themselves while sitting in the same row.
That's not political speech, of course. But it's definitely a form of communication. Very much like sitting near someone who's talking during the movie, in fact.
"the otherwise-indecent conduct is communicative or expressive."
Well its not exactly expressive until the job is finished.
Express: Verb. (third-person singular simple present expresses, present participle expressing, simple past and past participle expressed) (transitive) To press, squeeze out (especially said of milk).
"There are no non-religious rationale for why public nudity should be banned."
However, the interests of public health might justify laws on what one can do while publicly nude; in particular, restrictions on where and how one sits.
If public masturbation is speech, then isn't public masturbation because you hate Portland hate speech?
Bob
Jordan Chandler says "There are no non-religious rationale for why public nudity should be banned."
Sure there is. I might simply not like it. If a majority of citizens in a place share the same opinion, it becomes law. That is basically the foundation of clean air laws. It is perhaps the one area where I am happy to let slip libertarianism. You see, your smoking is bad for me or I just don't like it, but my non-smoking is not bad for you. In fact, you won't even notice my non-smoking. The situation is not symmetrical, is not tit-for-tat, and consequently normal negotiating strategies don't work unless I can inflict something offensive in return.
In the Navy I occasionally used a proxy for obnoxious smoking. Frequently cleaning with ammonia was fairly effective, not only on the algae that grows on air conditioners in a humid climate but persuasive on roommates with no courtesy or couth.
In the problem of roommates that would listen to music (stretch the definition a bit), or watch TV at any hour of day or night, I took to listening to opera, day or night.
Eventually it produced a negotiation. Choosing roommates in the barracks isn't an option; there's no telling who is going to be your roommates today or tomorrow. But how different is that from your neighbors in town, or the next apartment over? In such cases you can be eternally inflicting offense on each other as a method of negotiation, or you can have some laws that reduce (hopefully eliminate) the more common means by which the ONE can offend the MANY.
@ann I'm fairly sure WHY you hate Portland doesn't make hating it any more of a crime. What you do about it may affect the crimyness of it.
Holding up signs, shouting, marching, stripping (apparently) ok. Masterbating? apparently unclear. Murderous rampages, IEDs, assassinations, poisoning water supplies? probably not okay.
Marc Randazza wrote:
Kids these days are chicken and their bikes are too fancy. Thirty-odd years ago (very odd years I might add) in Berserkeley CA, I and most everyone else on various roads encountered a young man who became known as "The Naked Guy" pedaling his bicycle without a stitch of anything on his body including no helmet, no shoes, no gloves, no nothing. As I recall, he rode a very ordinary old clunky and funky bike with fat tires and coaster brakes.
He was well known at the time, riding around regularly in all his fleshly glory. Other traffic proceeded regularly as if he was any other bicyclist. Which is to say that those cage drivers apparently intent on killing other bicyclists were equally intent on killing him too.
I wonder if the police pounded the pavement to make that arrest.
Jackson says May 15, 2017 at 12:25 pm:
Nix the Trump wig. Trump has small hands. People have expectations. So your, um, credentials may appear much less impressive in comparison to your actual hands.
Aswering for an enemy.
So if it is possible for masturbation to be protected speech, would bukkake be the heckler's veto?
@AH —
What I meant was that saying you hate a municipality is not necessarily political speech simply because the municipality is the object of your hatred. You could hate it because of the weather there, or the lack of upscale boutiques, or your unhappy memories of attending a funeral there. For example.
If the young woman who was arrested for masturbating online from the library at Oregon State University wasn't engaged in free speech, neither is this guy.
Keep in mind, Oregon is a state where urinating in public is almost always also a sex crime that will land you on the sex offender list.
That no-tolerance portion of the public exposure laws is balanced by allowing the exposure of everything but the "genitals," meaning that women can go topless, or breastfeed in public with no legal problems and with no extra law or gray areas. There is also an exception for nude bathing areas if they are known to the local community. Even if some locals dislike it!
And obviously there is a free-speech exception, because the state Supreme Court does that the same way as the SCOTUS and will presume the needed exceptions wherever it doesn't significantly change the outcome of other situations. They rarely toss out laws. So that part is a no-brainer.
And the Portland ordinance is basically just the State law, but it eases their lives to copy-pasta the law and charge it locally. But the Court is just going use the same analysis that they normally do under State law; nakedness is allowed speech when it is passive. When it is a sex act, they don't care if you consider it speech, to them that just makes it both speech, and also an activity that is regulated.
Burn a flag or an empty sheet of paper while protesting, and see if you get arrested for arson! Burning a love letter on the sidewalk is definitely arson in Oregon. Arson isn't even as bad as a sex crime!
You can't even do that in your pocket with it covered.
Being naked is speech because it doesn't contain anything functional. Burning things or fapping or punching people because you want to communicate your displeasure, those all contain additional things that are functional, and also regulated. You can speak and say that you're against the law without actually doing the banned thing. I mean, gosh, what law could stand up if sex crimes don't even stand up? Bank robbery would be legal as long as you posted political messages against banks on the internet first.
@Yerushalmi: Even if charged under State law he'd likely spend his time in the County jail, which is a downtown high-rise building in Portland. So that wouldn't really help. It is easy to spot, it is the building with really small windows.
@Jordan Chandler: Alcohol in Oregon is highly restricted, hard liquor can only be purchased from the State, and it was only recently that liquor stores were permitted to open on Sundays. The restriction was politically controversial, but not legally controversial. Oregon is not very religious, and there is no dominant sect or religious moral system. But some things will be regulated, and that includes public sex acts and alcohol. Oregon is strict on that stuff. There is even a law banning public consumption of marijuana!
He could have been shot for holding a weapon
I can't believe this thread has gone on so long without a single reference to exposed male Oregonians.
How about this?
His waking off in public can be 'protected speech' if my kicking him briskly in the plums as an expression of disgust and disdain is too.
Ann, I'm dubious that it's speech when somebody masturbates quietly in his seat at a cinema. He's not masturbating AT anybody. (Or in gentler terms, not talking to anybody.) But if somebody masturbates as part of catcalling, that definitely is a kind of speech. In a lot of places it's not protected speech for a man to say "f-ck you" to a passing woman with his mouth…I don't know if he's allowed to say it with other parts of his body. (Of course, speaking to a city is more likely to be protected as political than speaking to an individual.)
Wait…where is it illegal to say "F-ck You" to a woman?
@Adrian —
I was actually seeking to illustrate exactly what kind of "communication" seeking out a woman in a movie theater to jerk off at/over/next to really is by putting it those terms. The thing that prompted me to think of it was in fact Randazza's reference to "hate-spanking," that being a not uncommon thing that really exists in the form I described. There's no question that it's an act of aggression, as well as creepy and somewhat frightening. **
So I don't think we actually disagree on that score.
But I do totally disagree that it's analogous to saying "Fuck you" to a woman (or to anybody), and actively, strongly object to the idea that cursing at women is in some way distinct from cursing at men.
FTM, being followed into a movie theater by someone who plans to sit near you while jerking off is not necessarily uniquely something that happens to women either. I just happen to be one, and was speaking from personal experience.
** That seemed uncontroversial to me when I typed it, but I suppose it's conceivable that there are people here who would disagree. Are there?
Given the courts' increasingly favorable disposition towards arguments that differential treatment of same sex relations is discrimination on the basis of sex, would a promising alternative to a free speech argument be that by allowing women to expose themselves to other women, but prohibiting men from exposing themselves to women, the law is discriminating against men?
@Jordan Chandler
You say that there is no non-religious rationale, and then immediately acknowledge one (aesthetics). There is a further justification that nudity is considered sexual in our culture, and one arguably has the right to not have another person engage in sexual acts in one's presence.
Nonsense. Other people buying alcohol on Sunday, compared to other days, does not affect other people.
@Michael 2
It's rather unclear what you're thinking in this paragraph. What does libertarianism have to do with it? And symmetry is hardly necessary for negotiation. If one is confronted with the possibility of someone doing something one does not want, there are two basic categories of response: punish them for doing, or reward them for not doing it.
@Ann
If one dislikes the weather, then the municipality is not the object of one's hatred, the geographical location is. Those are distinct concepts. The municipality of Portland is a legal entity distinct from the physical location of the land south of the bend of the Columbia river.
@Cromulent Bloviator
That's a rather ignorant comment. Arson is the burning of someone else's property.
Masturbation doesn't have any function that affects other people. Its effect on other people consists entirely on its expressive nature. It is quite different from punching someone.
@C. S. P. Schofield
Again, assault is quite different from masturbation, and it's difficult to believe that anyone acting in good faith could think they at all belong in the same category.
@Adrian says
That is speech protected by the First Amendment. There may be places where the courts are reluctant to recognize that protection, but constitutionally it is protected.
If he really hated Portland, why not squat and leave a little pile of appreciation? I would think defecating on Portland would be more appropriate than masturbating on it. One might think Portland excited him.
Multiple news outlets reporting that the President of the United States asked the Director of the FBI to jail journalists, just saying.
Guess he agreed with Randazza that maybe Steve Bannon was right.
@Ann
Keep in mind that this is coming from someone who characterized not funding the promotion of gender-neutral pronouns as "prohibiting" them.
Encinal writes: "It’s rather unclear what you’re thinking in this paragraph."
Is anyone else lacking in understanding?
"What does libertarianism have to do with it?"
Everything. The blog leans libertarian. I lean libertarian. The idea is you can do whatever you want so long as it doesn't impact me. Well, at some point your existence impacts me and I impact you, so we start to negotiate how much impact one person can impose on the many (or, to protect minorities, how much impact the many can have on the one).
"If one is confronted with the possibility of someone doing something one does not want, there are two basic categories of response: punish them for doing, or reward them for not doing it."
Your vision is limited. If I am the only non-smoker in a restaurant, I cannot very well punish the many, and I certainly cannot reward the many for not smoking; for there is no power on heaven or Earth that can deter a determined smoker. But the few can unite, legislate, and in that manner the few leverages the armed might of the government; the tail wags the dog and it is actually better for almost everyone.
However, if you were the only smoker in a restaurant, permitted to smoke, you have deprived the many of the virtues of clean air, to say nothing of the trail of ashes and cigarette butts that typically follow a smoker.
So as you see (or not), the situation is not symmetrical, it is not just you and me negotiating a peace.
"That is speech protected by the First Amendment. There may be places where the courts are reluctant to recognize that protection, but constitutionally it is protected."
No. Directly insulting a person on a street is not (IMO) speech protected by the First Amendment. Such speech constitutes fighting words and is not speech; it is a threat.
The First Amendment refers to political speech or commentary on the government itself. It is silent as to my communications to you in the circumstance of meeting on a street and we are citizens neither of us government employees or elected officials. In that circumstance we each have a presumed right of privacy but either of us could choose to abandon privacy and lodge a complaint.
When I saw the headline "Public Masturbation as Protected Speech?", I thought this was going to be a defense of Randazza's ridiculous post on the March for Science.
@Michael2
You kind of lost me there. You state you lean libertarian, but post this:
This is one of the least libertarian ideas I've heard.
In this case, you are on the restaurant owner's private property (which though he has made available to the public remains his). You admit to being not only a minority, but a singularity.
Your right to chose to be free from second hand smoke is not in any way impeded by this situation. You can chose not to go to that restaurant, or to leave when you realize that the smoke content is higher than the threshold you set for yourself.
So using the armed force of government to impede on the rights of the business owner seems exceedingly un libertarian to me.
I mean, if I wanted to open up a "sex positivity" shop, where people were welcome to come in and pleasure themselves, so long as rules were followed which prevented prostitution; you have the right to come in or not come in. Once you come in, don't you give up the right to complain about seeing masturbation?
What's the difference here?
Oh, and you clearly don't understand either the first amendment nor the fighting words doctrine.
I could walk up to someone on the street, and say "You are a hare brained, small testicled, pony loving, patent troll supporting reprobate; an embarrassment to your parents, a waste of oxygen, and should do the world a favor and jump off the nearest bridge, and by the way Fuck you."
Totally protected speech. In no way did I issue a true threat. I didn't incite others to do violence upon you.
Brian asks: "You state you lean libertarian"
Yes. It is a leaning, which itself is poorly quantified, toward libertarian, which is poorly defined. But it seems to me that most definitions of libertarian recognize that a libertarian society can exist only where everyone, and I mean everyone, is polite and civilized such that intentional offense to your neighbor does not exist and unintentional offense is reduced through a combination of not giving offense and not taking offense.
Since the world is largely rude and selfish being libertarian myself and only creates a non-symmetry where you can offend me, but I choose not to offend you. That creates a disadvantage with consequences in employment and breeding opportunities. It took me an embarrassingly long time to figure this out.
I still stand up for others before I stand up for me, but I recognize that if I do not stand up for me my ability to stand for others is reduced to that of my own stature. So it is at times necessary for me to stand for me.
"This is one of the least libertarian ideas I’ve heard."
That is why I presented it as the exception to my rule.
"In this case, you are on the restaurant owner’s private property (which though he has made available to the public remains his). You admit to being not only a minority, but a singularity."
I wish it were that simple, and yes, back in the day I avoided restaurants with smoke, which was if I remember right ALL of them. There are times when avoiding all restaurants is a reasonable or practical choice but sometimes it is not possible. More to the point, it was not possible at work, and being in the Navy it wasn't really an option to just not be at work.
Where I worked in Alaska existed 50 sailors, of those 50, three did not smoke. Now, they were not supposed to smoke in the computer room because the flying heads of the disk drives are particularly sensitive to smoke. A smoke particle is considerably larger than the distance from the disk surface to the head. Sometimes the smoke was so thick I wanted an OBA (Oxygen Breathing Apparatus).
It did cause quite a few computer problems and replacing crashed and burned (literally burned from friction) disk heads was nearly routine. But you, the taxpayer, pays for all that and keeps technicians employed fixing things that wouldn't be broken in the first place except for the smoke.
As an experiment I held a glass microscope slide over a burning cigarette for one minute. After that, a residue was on the glass so sticky I could pick up the glass slide with a Q-tip touched to it. Inspecting in a microscope revealed tiny crystals growing in the oily liquid, it is those crystals that separated contacts in the computer's circuit boards. So fairly regularly I would have to shut off a component, remove each circuit board and with alcohol scrub the circuit board contacts.
All this is in a computer "clean" room where smoking was forbidden!
If the computer is destroyed by second hand smoke, shall I presume that it has no effect on me, beyond burning eyes, coughing, and overall irritation that your poor choice of habit inflicts upon me?
"So using the armed force of government to impede on the rights of the business owner seems exceedingly un libertarian to me."
And so it is! The principle of libertarian is abrogated, removed from consideration, the moment you decide to inflict upon me. At that point I can either continue to be libertarian and suffer consequences while you do not, or I can un-libertarian and give you tit-for-tat.
That too was a lesson I learned in the Navy, how to calibrate the Christian "turn the other cheek" — you have only TWO cheeks and once you've turned them both, watch out, turn the other cheek is off the table and now it's Luke "Buy a sword" time. My roommate was pretty slow to "get it", after several weeks of him offending me with his television and music habits, and me offending HIM with opera, I finally suggested a negotiation. It went something like this:
"How about we each choose to do less, listen less, to our preferred choice of entertainment?" says I.
"But I have a RIGHT to listen to music!" he protested.
"Indeed you do and I am not infringing on your rights. I am inviting you to choose when to listen to music in such a way as to be less offensive to me, and I will be less offensive to you. You still have all of your rights, but you are making a free will choice to cooperate!"
We went round and round a few times when it finally penetrated his thought processes. After that we got along fairly well. He was a bit strange and I wonder that the Navy gave him a security clearance; he believed he did not actually exist but was merely an artifact of God's dream.
"I mean, if I wanted to open up a “sex positivity” shop, where people were welcome to come in and pleasure themselves, so long as rules were followed which prevented prostitution"
As it happens I don't really care about prostitution either. It is a private contract which I can easily ignore, or in a different life, participate in.
Smoking impacts me, burns my eyes, tightens my throat. I make judgments; I gauge you based on many indicators: Clothing, tattooes, hair, demeanor, language, the ways you abuse your own body or care for it is a representation of how you are likely to treat others.
"What’s the difference here?"
Degrees of impact which includes implied threat, opportunity of alternatives and necessity.
Threat can be implied many ways. So you walking down the street with German words tattooed on your forehead is likely to be considered threatening especially with proximity to northern Idaho. But in truth it might be a love poem. The threat emanates from the social acceptability of whatever you are doing. If what you are doing is intrinsically harmless, and yet society has deemed it inappropriate, then to do it in public signifies that you don't care about social rules, or law; and THAT implies that you might also not be inhibited by "thou shalt not kill" or other more substantial rules.
@ Michael2
I should note that I don't particularly support any version of libertarianism I've seen in practice, as like most philosophies it fails where the rubber meets the road. I do tend to privilege each individual's freedom of conscience over other concerns, in a general, but not absolute sense.
I'm not sure I agree with your idea that libertarianism is about or requires universal inoffensiveness. It is in fact based around the right to offend others; as it is unreasonable to expect every other person to see things as you do, and to not take offense at your beliefs (and vice versa of course). A libertarian may well say "I take great offense at homosexuality, and believe it is a grievous moral sin. However offensive I find it however, people must be free to live their lives as they deem fit, so I take no action to hinder them."
Regarding smoking there's a few things here:
1. Not smoking in computer rooms isn't a freedom issue; the owner of the room (the government in this case) has every right to dictate no smoking in any area they are in control of, for whatever reasons they deem proper. My issue is the denying of the same rights to people who own different property.
2. Avoiding restaurants that allow smoking remains a choice, even when avoiding them creates other issues for you, making it an unreasonable or impractical choice. The factors that make it unreasonable are your burden, not the business owners.
3. There was a lot of effort to demonstrate that smoking is a dirty, disgusting, unhealthy habit. I completely agree.
I think the crux of our disagreement is when you say that by allowing smoking in a restaurant, the owner is inflicting harm upon you. I find this problematic. My right to throw a punch ends at your nose; as the saying goes. If however, you chose to step into a boxing ring in competition against me, you have willingly agreed to grant me the right to punch you in the nose. Your right to not have your lungs polluted is likewise given up when you walk into an establishment that allows smoking. Nothing is inflicted upon you when you must make an active choice to subject yourself to it.
I understand that outside factors may make it your best course of action. Maybe you're stepping into the ring out of a desperate monetary need. Maybe there is no other establishment open in which you can obtain food. Regardless of the factors that inform your decision however, you still choose to step in the ring; and thus can't blame the guy who punches you.
Finally, regarding words in a foreign language tattooed on someone's head being a threat…nope.
As the eminent Sage Ken wrote:
Remember, only "true threats" are outside the scope of First Amendment protection. A statement is only a "true threat" if a reasonable person would interpret the words, in their context, as an expression of actual intent to do harm. In addition, the speaker must either intend that the words be taken as a statement of intent to do harm, or at least must be reckless about whether or not they would be interpreted that way (that's still a bit up in the air, legally).
I mean, point taken, but I'd imagine the trouble it causes might me almost worse.
@Marc,
I couldn't find Portland City Code § 14.24.060 on their website. I wanted to find out when it was enacted.
Anyone know?
. .. . .. — ….
Brian writes: "I should note that I don’t particularly support any version of libertarianism"
Followed by:
"I’m not sure I agree with your idea that libertarianism is about or requires universal inoffensiveness."
It seems you *do* support a particular version of libertarianism.
The problem (a problem) with your version is exemplified by the Hatfield and McCoys. They entered into mutual offensiveness. I accept your argument that each was exercising choice, hence liberty; but the result was that both were robbed of meaningful liberty.
"as it is unreasonable to expect every other person to see things as you do, and to not take offense at your beliefs"
Precisely so; unless of course there's a universal (within the group) morality so that people take offense at the same things and do not take offense at other things. This morality is provided by religion, or "a" religion to be more accurate. Even the global warmists have a shared morality and left wing publications go to great lengths, it is almost their entire purpose, to shape this shared morality and belief system.
Absent shared social values offense cannot be avoided and hence libertarianism won't succeed as a philosophy or social system; neither will liberty exist for most people in a meaningful way.
"A libertarian may well say: I take great offense at homosexuality, and believe it is a grievous moral sin. However offensive I find it however, people must be free to live their lives as they deem fit, so I take no action to hinder them.”
Clearly you have read my mind and observed my behavior, with one important nuance: I do not take offense at what I do not see or know; if you were to engage in that behavior in my house, my bedroom or attempt it on me, then you are depriving me of the enjoyment of my personal space and then I will be offended.
"1. Not smoking in computer rooms isn’t a freedom issue; the owner of the room (the government in this case) has every right to dictate no smoking in any area they are in control of, for whatever reasons they deem proper."
Half agree. It is also a freedom issue. But as people didn't obey that rule, and really cannot be expected to, it devolved into a freedom issue *for me*.
"2. Avoiding restaurants that allow smoking remains a choice, even when avoiding them creates other issues for you"
True it is. That is why I am not an activist to require this particular outcome. However, I celebrate it because it has hugely expanded the places I can go and enjoy being there.
"I think the crux of our disagreement is when you say that by allowing smoking in a restaurant, the owner is inflicting harm upon you. I find this problematic."
It would be had I wrote or said such a thing.
"My right to throw a punch ends at your nose; as the saying goes. If however, you chose to step into a boxing ring in competition against me, you have willingly agreed to grant me the right to punch you in the nose."
Agreed. It goes with the territory. A restaurant is an eating place, not a smoking place or punch me in the nose place. Private restaurants exist in this state at which patrons can do anything they please. Places of public accomodation are required to not permit smoking.
"Nothing is inflicted upon you when you must make an active choice to subject yourself to it."
I attempted to portray that some choices are not meaningful; that is to say, if the alternatives are particularly egregious then it is not simply a matter of choice. In my case, the draft sucked people into the Army; I chose the Navy instead but it was not a "free will choice"; it was constrained or compelled by expediency and subjected me to rather a lot of unpleasantness; although less than had I been drafted into the Army.
"Regardless of the factors that inform your decision however, you still choose to step in the ring; and thus can’t blame the guy who punches you."
Actually I *can* blame the guy for punching me and if the reason for stepping into the ring is to avoid immediate execution (ancient Roman gladiators come to mind) I have not chosen what I would choose were I free to choose what I want. The other guy becomes part of the system, part of me not having a meaningful choice.
So in the case my state offers me what I want even though in the process it deprives you of what you want, well, the situation is not morally balanced (not equivalent) in my mind hence I will vote for depriving you of your nasty habits IF they directly impact me in the enjoyment of a reasonably worthy choice that has benefits for society (going to restaurants creates employment).
But your nasty habits that you keep to yourself are yours to enjoy in perpetuity and I will not act or vote against behaviors that do not directly impact me in an adverse way.
"Finally, regarding words in a foreign language tattooed on someone’s head being a threat…nope."
Threat exists when it is perceived. In my Navy days, the Navy went to great lengths to explain that sexual harassment cannot be defined; it exists the instant anyone thinks it exists. You have no idea when someone may interpret your words, behaviors or dress as being threatening. Shall you be the decider of when a thing is a threat? Probably not; you know your intentions so you know when you intend to convey a threat, but people are not mind readers and you may be lying about it. Of course, the person that feels threatened can also lie about it.
Persons with PTSD tend to interpret harmless things as being threatening. To them, it is threatening and they cannot be told that a thing is not threatening when to them it clearly is threatening. To me, loud thumpy noises accompanied by narration in a monotone is threatening (also the words are often quite threatening in the rare occasion they can be comprehended at all).
It would be hopelessly confusing and impossible to legislate except by community standards. In northern Idaho where German tattooes are common, to walk into a biker bar with NO tattoos is probably threatening! It means you are law enforcement (or an idiot; but even idiots can be dangerous). In a place where the local culture suppresses tattoos and its against the dominant religion, going round in public with tattoos is an "in your face" affront. Try getting a job when you have death metal, skulls, swastikas and other assorted artwork scratched into your body. Such things are threatening in the common language (not the language of law necessarily but it follows from it).
"if a reasonable person would interpret the words, in their context, as an expression of actual intent to do harm."
There ya go, hopeless recursion, circularity or whatever. What is a "reasonable person"? That's for a jury to ultimately decide.
Brian, let's try it a different way. If you walk into a restaurant and slip and fall, you can sue the owner. Really it was your choice to enter the restaurant and it is his choice to run it any way he likes. It becomes your fault that you chose a restaurant with a slippery floor.
Would that bird fly? Probably not.
The restaurant owner doesn't even need to be the one inflicting the harm. He need only be slightly negligent in coddling you safely to your seat and making everything perfect for you.
That's not libertarian and I haven't said that it is or should be. But to do otherwise creates a big social problem of patrons having to discover for themselves every day which places are not slippery and which places are not food poisoned.
The enormity of that social problem has resulted in legislatures depriving restaurant owners of some liberty to have bad food or slippery floors; effectively making restaurant owners wards of the state, to a certain extent.
Adding smoking to the list of harms that restaurant owners ought to prevent from being inflicted on patrons is simply another item on a list of unpleasant and sometimes dangerous things to be kept from citizens. Some citizens, particularly those with asthma, cannot be subjected to smoke.
Have you noticed a proliferation of warning signs about peanuts? It seems bizarre, but not to the people that have in the past ten years or so suddenly become allergic to peanuts and cannot go *anywhere* not knowing where and where not have existed peanuts. So, having warning signs expands their freedom while scarcely constraining mine.
I posted several comments that didn't show up, but when I tried to post them against I was told they were duplicate comments. Any idea what's going on?
Trying this again:
@Michael 2
You don't seem to trying to be polite.
If you are in a restaurant, then you are in private property, and it is up to the proprietor to decide whether to allow smoking. (In practice, of course, the government often intervenes).
Sure you can. It is your vision that is limited. Restaurants are high overhead/low margin business. Having more customers means that the restaurant can amortize their overhead over more people and thus charge them less. Therefore, by patronizing restaurants that don't allow smoking, you are helping people who don't smoke.
There is data that contradicts that, but that is a digression.
If restaurants don't find limiting smoking to be economically advantageous, that strongly suggests that prohibiting smoking decreases overall utility.
But the others do not own the right to clean air; that belongs to the restaurant owner.
If two people both have apples and no oranges, then obviously there will not be a trade of apples for oranges between them. Every trade is due to an asymmetry of some sort. It's really not clear just what point you are making here.
Your opinion is wrong.
Well, that's quite a mishmash of four different ideas:
-It's not speech
-It's fighting words
-It's a threat
-It's not protected
These are four distinct claims. Threats and fighting words are different categories. "Fuck you" is manifestly not a threat; that's absurd. It's a stretch to call it "fighting words", and the courts are not as amenable as they once were to laws prohibiting such speech. And no court has ever entertained the patently false idea that fighting words and threats are not speech.
It does no such thing, and you are displaying an amazing willingness to speak on subjects you clearly do not understand.
Encinal wrote "It does no such thing"
Your mileage may vary.
@Michael 2
I have never encountered a definition that states that.
You seem to be severely misunderstanding what "libertarian" means. Rudeness is not a violation of libertarianism.
If people who don't like smoke are such a small customer base that the market can't support even one restaurant for them, doesn't that suggest that the harm to non-smokers is minuscule compared to the benefit to smokers?
Ever heard the phrase "burying the lede"? The central issue was that you were being forced to be in this situation. Once someone is forced at gunpoint to enter a restaurant, it becomes absurd to discuss what libertarianism says about whether people there should be allowed to smoke.
Again, really not getting the concept of libertarianism. If someone is infringing on your rights, then using force against them is not an abrogation of libertarianism. You are, however, being rather evasive by saying "inflict upon me", while omitting what is being inflicted.
"Indeed you do and I am not infringing on your rights. I am inviting you to choose when to listen to music in such a way as to be less offensive to me, and I will be less offensive to you. You still have all of your rights, but you are making a free will choice to cooperate!"
If you say that you can simply just avoid going to places of prostitution, the obvious rejoinder is that you can simply avoid going to places where smoking is allowed.
You seem to be confused between "threatening" and "threat". A threat is when a specific harm is claimed to be imminent. The word "threatening", while etymologically related to "threat", is much broader and can be used to refer to anything that makes someone uncomfortable.
@Michael 2
What do you mean? Are you saying that there are courts that will ignore clearly established precedence, and the plain language of the Amendment, and rule that it only applies to political speech?
If people just wanted to eat, they would go to a grocery store and save a lot of money. Food is just one of the attractions of a restaurant. People go to restaurants because they want to have a good time, and smoking is part of that for many people. The very fact that laws against smoking had to be passed shows that people were, in fact, smoking.
Again, the economics strongly suggesets that the law does not benefit society. Judged on the economics, you are depriving others of a large benefit to take a small benefit for yourself, which is extremely selfish.
@Encinal:
Love letter is easy. A sheet of paper, that depends. Was it a gift? Make sure to give consideration, or else you may not have the right to burn it. Did anybody walk past while it was burning?
So you see, if you burn a flag that belongs to you, on the public sidewalk, and somebody walks past that endangers them. It is normal for a person to slip and fall down. And a person who fell onto your burning flag would receive injuries. So just somebody walking past makes it arson, you don't have to have somebody else involved. Maybe you don't believe that it has ever been charged that way, but I believe that it has been.
Also, the wild claim that public sex acts do not affect the public is settled law. It is an act, and it officially does affect other people. Perhaps you disagree about whether it should. But that is different, and it isn't even on the ballot.
@Cromulent Bloviator
Your original claim was "Burning a love letter on the sidewalk is definitely arson in Oregon." Your were clearly asserting that burning a love letter is always arson, not that there are situations where it is arson.
Presumably you meant to write the opposite?
But only because of the meaning ascribed to it, rather than its inherent function.
Encinal wrote: "I have never encountered a definition that states that."
Welcome to my world.
"If people who don’t like smoke are such a small customer base that the market can’t support even one restaurant for them, doesn’t that suggest that the harm to non-smokers is minuscule compared to the benefit to smokers?"
Yes; it doesn't. It is also a very bad form of argument; as for instance, trying to decide if the benefit to a rapist is greater than the harm to the victim and thus justify the behavior.
It may well be that some restaurant owners would like to have non-smoking restaurants but I suspect that many states would not allow you to deny service to smokers. About 19 states don't allow you to use smoking as a discriminator in hiring (even if they otherwise don't allow smoking at work) but the majority allow discrimination based on whether you are a smoker (never mind also prohibiting at work).
One of the big reasons for smoking in the Navy was the smoke breaks. Every 15 minutes the smokers get a smoke break. Nonsmokers do not. It is not clear to me why any employer would hire a smoker (and in fact my own does not, generally speaking) knowing that his smoking employees have to stop working every so often for a fix and keep them separated from the non-smokers and that doesn't just mean physically; the ventilation systems would have to be isolated as well.
I've heard that the Navy is today entirely non-smoking. I find that amazingly difficult to believe but it would be a marvelous thing to behold.
"Ever heard the phrase 'burying the lede'?"
Yes.
"Again, really not getting the concept of libertarianism."
So it seems.
"If someone is infringing on your rights, then using force against them is not an abrogation of libertarianism."
Agreed. Libertarians may well choose to do anything they wish; but what distinguishes a libertarian from an anarchist is that the libertarian is interested in your liberty as well as his own. Anarchists do not care about your liberty. Libertarians will thus use no more force than necessary to achieve parity in negotiation whereas anarchists will simply shoot you for any reason or no reason.
A libertarian society will be as I have described.
"If you say that you can simply just avoid going to places of prostitution, the obvious rejoinder is that you can simply avoid going to places where smoking is allowed."
Indeed; but that wasn't your comment or mine. In my Navy career it was impossible to choose to avoid going to places where smoking was allowed. I couldn't even choose non-smoking roommates. It was horrible.
"You seem to be confused between threatening and threat"
Maybe. One seems to be an adjective and the other a noun. (threatening behavior(adj), communicating a threat(n))
Why not?
You are the arguing on the basis of benefit to you. If we're going to start making analogies to rape, then you are the rapist. You are wanting to violate the consent of the restaurant owners by forcing them to prohibit smoking. It's like a man saying "If we leave it up to individual choice, women won't have sex with me, so I want the government to force them to do so."
Besides the weakness of basing your argument on pure speculation, it is absurd to say that the remedy for a hypothetical law saying that owners can't ban smoking is a law saying owners must.
I suspect you are engaging in equivocation, in that they don't allow you to discriminate on the basis of whether someone smokes outside of work. I would be quite surprised if there are any states where employers can't restrict smoking in the workplace.
How will it be, and why?
Again, that's quite irrelevant to the discussion of restaurants open to the public, which is the issue you initially brought up.
Encinal writes: "You are the arguing on the basis of benefit to you."
As are you. That is the underpinning of libertarian thought but it forks into two branches, one that considers not only the benefit to me but also to you, and one that does not consider you at all (anarchy).
"then you are the rapist. You are wanting to violate the consent of the restaurant owners by forcing them to prohibit smoking."
You have a rather broad definition of rapist but a very narrow definition of libertarian. Not only do I want restaurant owners to forbid smoking, I insist upon health inspections and proper food preparation procedures. I do not have the means to make that determination for myself every time I go out. That is a reasonable role for government. Same with police. Ultimately it is my right of self defense that exists; either I can exercise it or I can delegate my rights to a small organization of specialists (police). It is more efficient to delegate my rights to persons specialized in that particular function whose right emanates from Self.
"It’s like a man saying: If we leave it up to individual choice, women won’t have sex with me, so I want the government to force them to do so.”
No. Prohibiting a behavior seems a bit different than commanding a behavior. Your mileage appears to vary.
"it is absurd to say that the remedy for a hypothetical law saying that owners can’t ban smoking is a law saying owners must."
Rather like ADA, Americans with Disabilities Act, or Affirmative Action, a remedy that insists on racial quotas after a period of racial suppression. That is the nature of modern law and morality; what was legal becomes illegal and what was illegal becomes legal and possibly even mandatory.
"that’s quite irrelevant to the discussion of restaurants open to the public, which is the issue you initially brought up."
So it is.
Only you Randazza.. only you would write something like this.. okay.. LOL!
"Public Masturbation as Protected Speech?" Well of course. ABC, NBC, CBS, PBS, MSNBC, CNN,and NPR,
they all do it live on their so called news programs every day.
@Michael 2
This might be but isn't necessarily true. There are plenty of persons with PTSD who recognize the difference between their experiencing something as threatening and its objectively being so. One of the aims of treatment is in fact to foster such recognition, because although it doesn't make the experience less excruciating, it does make it more manageable, at least for practical purposes.
This assumes persons who (at least some of the time) can do something to limit or otherwise mitigate their exposure to the things they experience as threatening, though. Realistically speaking, that's a luxury that a lot of people don't have.
@Michael 2
I am not a smoker, and I don't benefit from arguing against laws requiring smoke-free restaurants except in the general sense that I benefit from society being more free.
Libertarianism says it's wrong to initiate force against others, regardless of personal benefit.
You do understand that I am speaking about the analogy?
And you are commanding a behavior: the government forces restaurant owners to provide you with smoke-free restaurants, because you can't get them through consensual means.
It is quite different from affirmative action.
Encinal writes "I don’t benefit from arguing against laws requiring smoke-free restaurants"
You have chosen to be here and argue. It is likely that you do so for your benefit rather than mine. The exact nature of that benefit to you is something only you can declare. It might not be entirely obvious even to you.
It is clear to me that pure libertarian thinking universally applied is not evolutionary; that is to say, some efforts require community. Liberty is better than slavery; but organized (ants, bees) is usually better than anarchy. Best is freely chosen community, a social contract among persons able to form contracts. You get the benefits of liberty AND community.
I have played the game RISK only twice in my life; took all night long. I beat everyone except the eventual winner. A group is stronger than an individual BUT an individual might be more correct than a group. A smart individual directing a group is ideal and forms the basis of armed forces pretty much everywhere.
Oregon schmoregon… just hand it to the Feds…
"Brennan fails to carry his burden of showing that a viewer would have understood his stripping naked to be communicative."
Because you can't convince a Federal judge, or two, or three, of something that contemporaneous observers at the time could clearly perceive if he or she isn't inclined to be convinced.
That wasn't a viewer. That was some damn hippie…
I am firmly of the opinion that protests should in some way be related to what is being protested. Preferably in a manner that it is clear what you are protesting.
If you have a symbolic gesture of some sort (eg: pussy hats), then the meaning can be one or two steps removed, provided there are additional materials and more people doing it in order to provide context.
I guess what I am saying is, masturbating in public as a form of protest only 'works' if what you are protesting are laws against masturbating in public.
As for the Free Speech aspect: just because the government cannot pass laws that prevent Free Speech does not mean you get an excuse to break existing laws. If your form of protest breaks the rules, then you have no complaint coming when the police put the cuffs on you. Doesn't mean you shouldn't do it if you believe your cause is just, but don't expect special treatment. Go in, knowing your sit-in or whatever may well result in legal arrest and prosecution.