To defend a right to engage in some action, or to refrain from doing so, I take it that it is necessary to identify interests in the relevant (in)action that are strong enough to merit legal protection (Raz 1988). Accordingly, to defend a right to be publicly naked, we must identify the interests served by such a right.

Well-Being

One such interest lies in its potential contributions to people’s well-being. As we will see below, not only can a right to be publicly naked promote the well-being of many nudists, but also those of many non-nudists whose body image and, ultimately, life satisfaction, might be promoted by exposure to non-idealised naked bodies (i.e. bodies that fall short of prevailing aesthetic standards). To show that the freedom to be naked in public can make significant (morally innocent) contributions to well-being, I will adduce three kinds of evidence: testimonial, abductive, and empirical.

Testimonial Evidence

Whereas nudists are often depicted as sexual miscreants or psychologically disturbed individuals, there are abundant testimonies that practising nudism can bring pleasures that are neither immoral nor pathological. For example, a journalist of the Guardian described his first naked hike as follows:

Being naked is profoundly liberating. It’s not just the physical feeling of the air, sun or sea over your entire body: there’s a psychological release, too. When you shed your clothes, many social pressures also somehow fall away.Footnote 14

Such experiences are by no means limited to first-time nudists. Andrew Welch, an experienced naturist and spokesperson of British Naturism, speaks of a

[…] a liberating feeling when you’re naked in the fresh air, or skinny-dipping, or jumping in a hot tub.Footnote 15

Or consider the testimony of Richard Collins, an electrical engineer and nudist of three decades who has become known for his naked bike rides through Cambridge, England (and subsequent arrests). When asked about his motivation for cycling nude, he replied:

Cycling is a great way to get a bit of exercise in itself – but especially without any clothes on […] You feel the breeze on your skin, and the sun on your skin – it feels wonderful.Footnote 16

Indeed, taking pleasure in nude recreation is not unique to our day and age. Recounting his trip to a naturist resort near Bremen (Germany) in the early 1930s, Howard Warren reported a

[…] distinct joy in the free movements of the naked body which is lacking when one is clothed in the conventional gym-suit (Warren 1933, p. 172).

As well as a

A peculiar joy in wandering naked through the cool pine woods, whether by day or by moonlight, which is far superior to airbathing in a restricted garden (Warren 1933, p. 172).

These and numerous other testimonies that I could have included—but have not for reasons of space—provide good evidence that nudism can make positive contributions to people’s well-being. To avoid confusion, I am not suggesting that being naked in public (or in private for that matter) is invariably pleasurable for those who engage in it.Footnote 17 There are many situations in which it might not be, for example when the weather is cold or when being unclothed would expose oneself to insect bites. However, defending a right to be publicly naked does not require one to show that that being publicly naked is always pleasurable. It merely needs to be shown that there are at least some occasions where it brings net pleasure to people. Since there is no reason for believing that all of the above testimonies—and various other ones that could have been provided—are inaccurate, such occasions appear to exist.

Abductive Evidence

The abovementioned tastes for nude recreation are by no means idiosyncratic. Polls conducted by Ipsos-Mori suggest that about a quarter of all Britons have taken part in some nudist activity between 2001 and 2011, such as nude sunbathing.Footnote 18 In the Netherlands, the national naturist organisation (NFN) boasts approximately 72,000 members,Footnote 19 whereas approximately 600,000 individuals are registered with private nudist or Freikörperkultur [free body culture] clubs in Germany. More recently, naked bike rides have garnered widespread public interest; cities such as Portland, Amsterdam, and Mexico-City (among many others) participate in the annual World Naked Bike Ride, with the 2017 Portland edition alone attracting nearly 9000 participants.Footnote 20 Such figures complement the abovementioned testimonial evidence by providing abductive evidence of nudism’s potential to promote individual well-being. The idea is that unless nudism has this potential, it becomes difficult to explain why so many individuals practice it and why some are even willing to do so at the risk of incurring legal and/or social sanctions. Lending further support to this inference is the fact that nude recreation is not unique to our age. While the German Freikörperkultur dates back to the nineteenth century, some of the earliest examples of nudist activities—and societal acceptance thereof—can already be found in Ancient Athens, whose male citizens practiced nude athletics (Górnicka 2016).

To be sure, I am not claiming that everyone who practices nudism will experience net pleasure (or that everyone who does so practices nudism in order to experience pleasure, or that pleasure is all that matters as some utilitarians maintain). There can be, and undoubtedly are individuals for whom being publicly naked does not have these effects. All that I am claiming is that it is unlikely that nudism would be such a popular and persistent phenomenon if it did not promote the well-being of certain groups of nudists.

A Counterproductivity Objection

At this point, we should ponder the possibility that any well-being-promoting effects of nudism depend on public nudity remaining largely banned. The thought here is this: If the joy of nudism depends on the feelings of liberation that it induces—recall, for instance, the BBC journalist who reported a “psychological release” when wandering through town naked—and if the existence of such feelings depends on nudism remaining largely proscribed (unless some action is prohibited or taboo in some way or other, it is difficult to see how doing that action could be liberating), then by largely decriminalising it, nudism would cease to promote people’s well-being.

An immediate reply is that even if this mechanism obtains, the idea that coercive laws should be left in place for the joy of breaking them is a reductio ad absurdum. Though I am sympathetic to this view, it should be noted that even if it is not a reductio, this would still not justify the scope of existing restrictions on public nudity. To vindicate this claim, we need to consider the well-being-related costs of maintaining such restrictions.

These costs include diminished access to the well-being promoting effects of nudism that do not depend on the sustenance of anti-nudist laws. For examples of such effects, one might recall Collins’ description of the “wonderful” feeling of the breeze and sun on your skin, or Warren’s report of the delight in the “free movements of the naked body which is lacking when one is clothed in the conventional gym-suit”. Being akin to basic physical sensations, the pleasure of these experiences is not reduced by the legalisation of nudist activities. (Likewise, we will see below that exposure to non-idealised naked bodies can have a positive impact on body image, and, ultimately, on life satisfaction, that is not diminished by the decriminalisation of public nudity.)

Besides denying opportunities for enhanced well-being to people, sustaining anti-nudist laws can adversely affect their current well-being. Such reductions in well-being might be caused by the penalties on violating anti-nudist laws (e.g. fines, prison sentences); the fear that nudists might have of being caught violating such laws; the feelings of guilt that such violations might induce in them; and—when anti-nudist laws are vague—the uncertainty that they might suffer about whether they are acting illegally by appearing naked in certain places. The following remark by Mark Nisbet, editor of Health & Efficiency Magazine, captures many of these evils:

The moral and legal climate in the UK is very harsh when it comes to public nudity. It encourages apprehension and fear among those nudists who are less bold than the very small minority of nudists with an attitude, who go nude wherever they chose.Footnote 21

Further reductions in well-being might be engendered by ways in which nudists are stigmatised by proscriptions on nudism. Such stigmatisation occurs, for instance, when these individuals are persecuted under (sexual) misconduct laws and when they are forced to gather on designated places (e.g. nudist beaches). Not only are these things degrading, they are also widely experienced as such; as Nisbet points out, many nudists are “vexed by segregation and angered at being one notch up from sexual exhibitionists in the eyes of the law”.Footnote 22 Or consider the following statement by Joaquim Plana, president of the Catalan Naturist Club, on a recently introduced nudity ban on a Catalan beach:

What bothers us is that they include us in the civic ordinance, describing our behaviour as antisocial. There’s nothing further from reality […] They say it’s to protect families, but we also have families. Nudists aren’t odd people.Footnote 23

What these observations suggest is that even if the notion that the joy of breaching certain laws can be a reason for maintaining those laws is not a reductio—as I believe it is—the pleasure that nudists may derive from breaching current anti-nudist laws will usually be outweighed by the disutility that maintaining such laws engenders. Furthermore, once we add to the equation people’s expressive interests in their abolishment (which are discussed shortly), the sustenance of current large-scale restrictions on public nudity becomes even more difficult to defend.

Empirical Evidence

A third source of support for the link between nudism and well-being is provided by empirical studies of the last few decades (e.g. Lewis and Janda 1988; Okami et al. 1998; Okami 1995; Oleinick et al. 1966; West 2017). Besides showing that exposure to (non-exhibitionist) public nudity lacks the detrimental psychological and behavioural effects commonly attributed to it, these studies have found that such exposure can have positive effects on well-being by promoting people’s body image.

Consider these findings in the order stated. Whereas it is often feared that exposure to nudity has a detrimental psychological and behavioural impact on children, this has not been corroborated by empirical research. Studies by Oleinick et al. (1966) and Lewis and Janda (1988) found no relationship between early-life exposure to nudity and the development of psychiatric symptoms later in life. In an 18-year longitudinal outcome study, Okami et al. (1998) assessed the relationship between early-life exposure to parental nudity and levels of self-acceptance; relations with peers, parents, and other adults; antisocial and criminal behaviour; substance use; suicidal ideation; quality of sexual relationships; and problems associated with sexual relations. No adverse effects were found. In fact, some positive effects were reported for boys and/or women, including reduced risk of teenage pregnancy; contracting sexually transmitted diseases; use of recreational drugs; antisocial behaviour; and higher levels of self-acceptance (Okami et al. 1998).

More recent studies have linked exposure to non-idealised nude bodies—i.e. bodies that do not meet the standards of thinness for women and muscularity for men that are commonly depicted in the media and advertisement—to improved body image (Swami 2016; West 2017). These findings are pertinent, as improved body image has been shown to promote life satisfaction through its positive impact on self-esteem (Acun-Kapikiran et al. 2014; Kostanski and Gullone 1998; Olivardia et al. 2004; Paradise and Kernis 2002; Park et al. 2014; Pujols et al. 2010). Whereas Swami (2016) found that women who regularly participated in drawing sessions that featured live (naked) models had higher body appreciation, as well as a lower drive for thinness and lower social physique anxiety, West (2017) found that participation in naturist activities tends to conduce to a more positive image of one’s own body (whereby seeing others naked was found to be to be more important than being seen naked by others).

So far, I have marshalled testimonial, abductive, and empirical evidence for the claim that a right to be publicly naked can make significant contributions to well-being. To make a conclusive case for such a right, however, we must address the objection that many individuals find public nudity offensive, and have their well-being undermined by it. Section 3 will examine the normative implications of such offence; for now, I want to look at another kind of interest that is served by a right to be publicly naked.

Freedom of Expression

Freedom of expression is frequently invoked in court cases over public nudity. For example, Stephen Gough appealed to it when he went to European Court of Human Rights over his repeated arrests and convictions for nude hiking,Footnote 24 so did a group of nudists who filed a federal lawsuit against San Francisco’s public nudity ban.Footnote 25 Such appeals should not be surprising; apart from their usefulness as a litigative strategy, nudists and non-nudists often have strong expressive interests in the liberty to be publicly naked. Let me mention two.

One expressive interest is identity-related. For many nudists, the ability to appear naked in public is necessary for expressing their identity, and in so doing, maintaining a sense of personal integrity or wholeness. One might think of ecological groups who see naturism as a way of connecting “to mother nature, earth, trees, and water”.Footnote 26 Or consider God’s Garden, a Christian nudist group in Florida whose members describes their congregation as

A celebration of life with like-minded people while furthering our understanding of the Creator. We understand that being clothes-free is not sinful; it is how we are designed by God to live. In this way, we are a welcome alternative to established Christian denominations which do not accept our chosen lifestyle.Footnote 27

For these and many other nudists, living under anti-nudist laws denies them the legal liberty to align their outer appearances with their inner convictions. Furthermore, even if they remain physically free to appear naked in public (only a straitjacket would deny them this liberty), doing so might mean that they will face fines and, ultimately, imprisonment, which can make it extremely costly to live in accordance with their nudist convictions.

The pressure that this imposes on nudists to desist from acting upon their deeply held beliefs is problematic for two reasons. First, insofar as they yield to such pressure, this will result in misalignments between their forum internum and externum that are detrimental to their well-being. Second, nudists’ dignity is undermined by such pressure, as treating autonomous beings in dignified ways requires that they be left free to act upon their conceptions of the good life when this does not impose unreasonable costs on others (having already debunked various myths about nudism’s pernicious effects, Sect. 3 will say more in defence of the notion that the costs of allowing public nudity are not unreasonable).

The other expressive interest in the freedom to be publicly naked is communicative. While the ability to express our identity-constituting commitments can matter independent from whether others recognise our identities, such recognition can be pertinent as well. Apart from any positive value that it might have, misrecognition by others can, and often does, lead to serious harms, including distorted relations-to-self, such as low self-esteem and even self-hatred (Laitinen 2012). For example, for people with fluid genders to be recognised by others as either male or female can have a detrimental impact on their self-esteem. Similarly, for nudists to be seen as individuals who believe in the sinfulness or indecency of the naked body can dent their sense of their own worth. If correct, then just as forcing those with fluid genders to identify as male or female is problematic because it conduces to such misrecognition, so forcing nudists to wear clothes is at least pro tanto objectionable, as it makes it more likely that their identities will be misrecognised.

Another way in which anti-nudism legislation might undermine communicative interests is by inhibiting both nudists and non-nudists from using public nudity as a means of promoting their moral and political views. For examples of such usage, think of how nudity has been deployed to protest nuclear weapons, with slogans such as “Disrobe for Disarmament”Footnote 28 and “Nudes, not Nukes”Footnote 29; or how it has been used to demonstrate against the fur industry with the slogan “I’d rather go naked than wear fur”Footnote 30; or of how it has been used by the Ukrainian group FEMEN to demonstrate against sex tourism, international marriage agencies, and violence against women.Footnote 31 Besides being used for the promotion of non-nudist causes, public nudity is often used for promoting the nudist agenda itself, in which case public nudity is both an expression of an identity and a means for furthering certain political ends. Examples of this can be found in the (partially) naked protests that have been staged against restrictions on breast-feeding,Footnote 32 female toplessness,Footnote 33 and full-blown nakedness.Footnote 34

While protests can be successful without the use of nudity, naked protests are often highly effective in attracting public attention. Indeed, they might sometimes even be the only effective means. For example, the fact that women’s voices are routinely ignored within patriarchal societies suggests that FEMEN may be right in claiming that their campaigns would “not be noticed” if they used “banners” rather than nudity.Footnote 35

A Counterproductivity Objection

Some might respond that even if public nudity is a highly effective and efficient means of protest for some groups, its usefulness as a vehicle of protest is not be served by decriminalising it. The thought is that if what makes naked protests so successful—as measured by the amount of public attention that they receive—is that the protestors are willing to breach anti-nudist laws to promote their causes, then by decriminalising public nudity, the potency of those messages—and subsequent public interest—will be weakened by lowering the costs of naked protests.

One immediate rejoinder is that even when abolishing anti-nudist laws reduces the effectiveness of such protests, this does not adversely affect those who use public nudity to advocate nudist causes. This is because the abolishment of anti-nudist laws is exactly what these individuals are trying to achieve. However, this would still allow for the possibility that decriminalising public nudity will adversely affect those who employ public nudity to further non-nudist causes, as the abolishment of anti-nudist laws is not part of their agenda.

What should we make of this objection? While any reduced efficiency of nudism as a tool for furthering non-nudist causes might be regrettable, I believe it does not justify the sustenance of current anti-nudist laws. Even if naked protests lose (some of) their force, the present objection is softened considerably by the fact that various alternative—and potentially at least as effective—ways of attracting public attention will usually remain available to people, including to marginalised groups. One might think of staging sit-ins, holding of marches, and refusing to stand up for the national anthem (a form of protest currently used in the US to protest police brutality against black individuals). Furthermore, given human propensities for creativity and innovation, people are bound to come up with new forms of protesting.

When we consider the existence of these (potential) alternative forms of protest along with the strong well-being related and expressive interests in the freedom to be publicly naked as outlined in this section and the previous one, it seems that any reduction in the efficiency of nude protests that might ensue from the abolishment of current anti-nudist laws is a price worth paying.

The Case for a Distinct Right

The foregoing subsections have argued that there are weighty interests served by the freedom to be naked in public. To make a conclusive case for (largely) decriminalising nudism, however, several concerns must be addressed. Before turning to these, we need to consider why—as I have suggested—states ought to recognise a distinct right to be publicly naked rather than subsume nudist liberties under existing rights, or simply secure them by excluding non-sexual, non-exhibitionist public nudity from existing laws against public indecency, sexual exhibition, and public disorder (an example of such a built-in exemption can be found in Oregon’s indecent exposure laws, which allow for the—otherwise impermissible—public display of genitals when there is no “intent of arousing […] sexual desire”)Footnote 36. Consider these alternatives in the order stated.

The problem with subsuming the freedom to be publicly naked under traditional liberal rights is that such rights cannot capture all apposite interests in this liberty. To be sure, many important interests could be protected through this strategy; whereas the right to free expression could protect the identity-related and communicative interests in this freedom (see above), the right to conscientious freedom could protect nudist practices in which people feel conscientiously compelled to engage (think of the naked rituals of Christian naturalists and Wiccans). However, we have seen that many individuals engage in naked activities simply for the pleasure that this brings; in so doing, they are not trying to express, or live in accordance with, any spiritual, religious, or moral beliefs. For example, when asked about his motivations for cycling naked through Cambridge, Richard Collins replied that his outings are “simply me having fun!”Footnote 37 By introducing a distinct right to be publicly naked, states would not only recognise the interests of individuals with expressive or conscientious stakes in nudism, but also those of Collins and others who practice nudism for purely hedonistic reasons.

What about securing nudist liberties by simply excluding non-sexual, non-exhibitionist public nudity from existing laws against public indecency, sexual exhibition, and disorderly conduct?

This is not an adequate alternative either. For one thing, one might doubt whether building nudist exemptions into such laws puts the freedom to be publicly naked on a secure enough footing. Even if religious objections to nudism have become less common within liberal democracies due to processes of secularisation, this does not mean that prudishness is becoming extinct. Not only do many groups within these societies—religious and non-religious—continue to regard public nudity as indecent (indeed, the Spanish and San Franciscan experiences show that Victorian sensibilities can be rekindled), the debunked notion that public nudity is bad for children continues to have a strong hold on large swathes of citizens. This is problematic, for it means that any nudist exemptions to laws against public indecency and sexual exhibition could be scrapped readily once a (more) prudish government and/or one with false beliefs about nudism’s effects assumes power. While a right to be publicly naked could be revoked as well, once such a right is recognised, it will ordinarily be more difficult for future governments to criminalise nudism, not the least because of the symbolic status of rights as basic entitlements.

For another, the fact that rights have great symbolic value means that recognising a distinct right to be publicly naked is a more fitting way of redressing past injustices against nudists than merely exempting these individuals from anti-indecency or anti-exhibitionist laws. As was mentioned, there are various ways in which anti-nudist laws have adversely affected nudists’ interests (and continue to do so). Many have suffered legal penalties for their naked activities, whether in the forms of fines or imprisonment. Furthermore, those who have been spared this fate hitherto may still have feared such penalties, felt guilty about violating anti-nudist laws, and/or felt ashamed by the ways in which such laws stigmatise them. Indeed, regardless of whether anti-nudist laws have visited some disutility on them, nudists are harmed by such legislation, as the harm of stigmatisation does not require that those targeted suffer a reduction in their well-being (such reductions aggravate the relevant harm, but are not necessary for it). Those whose well-being is not diminished, perhaps because of their unawareness of the laws’ stigmatising character or because of their stoic dispositions, still suffer a dignitary or status harm when they are stigmatised, which is an objective evil (a parallel might be drawn with the disenfranchisement of women in previous ages; even if some women did not bother about being denied the right to vote, their exclusion still visited a status or dignitary on them).

Of course, this all presupposes the injustice of existing (and past) anti-nudist laws. To show that these laws are in fact unjust, it is not only necessary to identify the interests served by the freedom to be publicly naked (as I have done in this section), but also to consider whether there are countervailing interests that act as defeaters for a right to this liberty. It is to this task that I turn next.