Comments from NoodleFood


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Comment #1

Friday, April 4, 2008 at 4:10:04 mdt
Name: Jim May

Part of the process would be that complainants would have to objectively demonstrate the nuisance.

A good example of a test case was the "Pink Lady" of Malibu Canyon. I don't find the art objectionable, but it could be enough of a distraction to cause accidents. "http://www.snopes.com/autos/hazards/pinklady.asp"

There are some huge LED billboards around the Cerritos Auto Mall around the 405 freeway here in L.A. which tend to have bright flashy graphics on them, which I find really irritating at night; I'm waiting for someone to take them to court claiming that they are responsible for their accident. I'd consider that argument to be thoroughly plausible, as the flashing often resemble emergency vehicle lights or sudden brakelights.

Seeing as both of those examples involve traffic and roads, I imagine that there would be a sound legal basis for restrictions on the nature and possibly content of roadside advertisements.



Comment #2

Friday, April 4, 2008 at 4:25:39 mdt
Name: Qwertz
URL: http://wopsr.net

I agree that civil nuisance should be the vehicle for addressing such situations when they arise in the context of private property. Unfortunately, civil nuisance has also grown into something it shouldn't be, to the point where it became the justification for zoning laws and other forms of "public nuisance prevention." So long as the legal system continues to recognize "public property," (an anti-concept) there will be no way to resolve this or similar issues consistently with government's duty to protect individual rights.

On top of that, an attorney arguing in court against the validity of "public property" would likely be suspended for making a frivolous argument. There is a great body of tortured and strained constitutional law out there (e.g., the Miller obscenity test) that is very dear to the established legal system and would be utterly eliminated if all property were privately owned. This sort of context-dropping, enforced by judges, legal academics, and the Rules of Professional Conduct, is a never-ending source of aggravation for me.

~Q



Comment #3

Friday, April 4, 2008 at 4:51:22 mdt
Name: Adam Reed
URL: http://www.calstatela.edu/faculty/areed2

I don't see a problem with either case. I also don't see how a nude picture - or person - could be what Ayn Rand could have meant by "pornography." Toohey would - remember what he wrote about the sculpture in the Stoddard Temple - but then Toohey stands for an attitude that Ayn Rand truly despised. When Ayn Rand writes "pornography," she means stuff you would not want to have to explain to a six-year-old; that is the context set by the opening sentence: "the protection of minors and of unconsenting adults."

1. "Sexually explicit posters may properly be forbidden in public places." The only "public places" in a free society would be places that one cannot avoid passing through to get to a courthouse, a police station, or a military base. Since children may need to pass through such "public places" - for example, as witnesses in court, or in police investigations etc. - it is reasonable to make sure that such public places can be accessed without being exposed to sexually explicit posters and so on.

2. "Warning signs, such as "For Adults Only," may properly be required of private places which are open to the public." "Open to the public" means that a parent or caretaker might, absent a "For Adults Only" sign, take a child - or a mentally disabled adult - inside, not knowing what might be displayed.

Were you thinking of some other context?



Comment #4

Friday, April 4, 2008 at 7:19:19 mdt
Name: Paula

I am the reader who sent the question to Diana (thanks for posting it!). My comment below is in response to Adam Reed's comment. It is lengthy and I am not a frequent commenter. I apologize if I am unwittingly breaching some kind of comment etiquette.

The issue I raised with Diana is an exploration of free speech given the notion that rights can be violated only by physical force. Based on Rand's discussion of the permissibility of restricting certain "posters or window displays," I was trying to get at the following situation: a property owner displays "pornographic" material in a window or otherwise on that property, and it is visible to passers-by (I use scare quotes because I truly have no idea how there could be a public, legal definition of "pornography" -- and I am a lawyer). I assume that the passers-by were not forced onto their route. In this situation, how does one conceptualize a right to be protected from sights and sounds one finds "offensive?"

I am a mother. Suppose one day, back a when my son was six years old, I was taking a walk and found myself surprised by garish display of a sight I found absolutely loathsome, like a video clip showing an enactment of a rape at knifepoint. Let us further suppose that had I known about the display, I would have chosen another route. So there I find myself, disgusted by what I see and hear and suddenly fielding uncomfortable questions from my six year old. What are my rights? If I claim I had a right to not be surprised in such a fashion, it could only come through some sort of contract, because there is no question of direct physical force. I believe the idea of nuisance is on the right track, but you have to be able to show damages. What are my damages? My own psychological discomfort? If so, how could those damages be proved? Or, are my damages my right to raise my child as I see fit? But how could that right ever imply a corollary right to control (mere) displays on private property?

As to your specific points:

1. You make an excellent point about protecting unique means of accessing governmental buildings. But to say a display is "sexually explicit," without more, is not enough to establish that display as an initiation of physical force. Even if the display depicted a brutal rape, I think there's still a difficulty proving a violation of rights. The sine qua non of a rights violation is the initiation of physical force. Intuitively, I think there may be a case for preventing the explicit depiction of brutal crimes in this situation, but I'm looking for the syllogism that can back that intuition. It's hard for me to find!

2. As I wrote above, I was initially exploring the situation where displays on private property are visible to those not entering the property. In the case where a property owner is silent or positively misleading about what is displayed behind a door he invites the public to enter, there may be a rights violation. I must admit I find this situation extremely unlikely, given the profit motive and the potenial for community outrage leading to boycott. In any event, you might be able to claim criminal fraud where a sign is misleading -- you would have been induced to move your body to a place you would not have consented to go, but for the misleading sign. This is a physical consequence. Again, it wasn't the situation I was exploring when I wrote Diana.

A couple of closing points. Ayn Rand's statement seemed aimed at the sexual content of speech, not at sexual activity; her standard was whether the content was "loathsome." So I wonder about the following. What if a crusader against junk food finds "loathsome" the sight of a poster in a McDonald's window advertising a new kind of highly caloric and unhealthy fast food meal? Should McDonald's be prohibited from advertising its new product? Are sexual sights "loathsome" in a way that this display is not, such that sexual content may properly be regulated but not other sights people may find loathsome?

Among other requirements, to be objective, a law must establish a bright-line rule. Use of property in a way that causes uncontracted-for and uncompensated damage to property owned by third parties may properly be forbidden. Such a use causes a nuisance. I am having a hard time making out a nuisance in the situation described in the quote I saw on the Ayn Rand Lexicon.



Comment #5

Friday, April 4, 2008 at 8:01:57 mdt
Name: Sajid

I think that since we do not have an objective definition of what is "loathsome" and while clearly some kind of legislation is needed in these issues (I know that I do not want to look at pornography in public) I think currently we just have to rely on our legal system's interpretation of what is loathsome and what is not. This is where having a common law system is useful. At the same time, perhaps some philosophers and/or law professors can do some research into the topic so we have a more objective defintion (or maybe someone already has a solution). Nevertheless I think you have raised a very interesting question. I also don't think I agree with Ayn Rand's quote that this is not a moral issue. What if a society (like plenty of eastern ones) has much more modest social norms. Then of course the standards of what is loathsome in that society will be very different. And since in this nation we have political rights for all, different immigrants will demand different standards. In fact even in America itself we can find a wide variety of what is acceptable and what is not. Thus I am not sure if we can simply treat this only as a technical issue. Otherwise a city in America with a majority muslim population could require hijab for all women. Clearly some more analysis is needed. Perhaps if you get time Diana you could write your full conversation with your husband.



Comment #6

Friday, April 4, 2008 at 8:36:49 mdt
Name: Roderick Fitts
URL: umso.wordpress.com

"Rights can be violated only through physical force, and words and pictures are not force."

To quickly address what Paula stated to Diana, I don't regard words and pictures as direct uses of force, but I think they can be indirect uses; in particular death threats and even ransom notices, insofar as they threaten to do something horrible to the kidnapped victim if the ransom isn't paid, e.g. such as killing the victim.

Regarding the restriction of pornographic material in front and out in the open in one's property:
I admit that this issue is more difficult than, say, the case of loud noises. There's a line that noise objectively crosses which is literally painful to the person and damages his ears.--Similarly, there's at least a certain range of brightness which can be distracting--even blinding--and damages the eyes, or leads to accidents. Such criteria aren't so evident regarding pornographic material.

I'm wondering if there would have to be laws against such displays, however. I'm also thinking that this is Rand applying her philosophy to a technical area of Philosophy of Law, so that her statements here are not necessarily the Objectivist position on this issue. Displaying such things as pornography out in the open is going to attract negative attention, which can drive away some business, since some clients will not appreciate the extra-attention the store is now getting. It's respectful to acknowledge that not everyone is going to want to see the material you have, and to warn them beforehand. It's also safe-business strategy to have some type of warning sign so that you can't be sued for misleading a citizen, as Adam Reed and Paula both brought up, further acknowledge the controversial nature of what you're selling.

So my current views are that such laws aren't necessary, though I'm not conclusively against the idea of nuisance laws or what Rand proposes. Perhaps time will tell.



Comment #7

Friday, April 4, 2008 at 9:16:13 mdt
Name: MelM

I don't have an answer but I'd like to point out what looks to be Ayn Rand's starting point in her comment:

"(A corollary of the freedom to see and hear, is the freedom not to look or listen.)"



Comment #8

Friday, April 4, 2008 at 9:18:56 mdt
Name: Mel McGuire

Sorry, MelM should have been Mel McGuire



Comment #9

Friday, April 4, 2008 at 9:29:26 mdt
Name: Mike Hardy

: Examples of nuisances would include bright
: lights, loud music, and nasty smells

[snip]

: a person does have a right not be "assaulted"
: by physically painful or unavoidably distracting
: percepts via some kind of nuisance law.

The obvious commonplace case of "nasty smells"
and physically painful percepts is of course
cigarette smoke. Such obvious cases of
inflicting physical pain on bystanders should
be considered criminal battery.



Comment #10

Friday, April 4, 2008 at 9:43:55 mdt
Name: JBennet

This is one of those subjects that can only be resolved in a truly free society. In such a society there would be a cultural context that would shape how this would be resolved. For example there would be only private developments (excepting legitimate gov't buildings) governed by property covenants. Such a system of property covenants would probably address what type of advertising or displays could be shown. I'm sure there would be more sexually explicit "areas of town" which would allow x-rated displays and other areas that wouldn't. Also, the culture wouldn't be governed my mystical anti-sexual ideas so the whole cultural view of sex would be entirely different than it is now. Some people have used this precise issue to suggest that "Ayn Rand was wrong" and "fully free markets don't work." But that's nonsense. Its just a complicated issue of law that really can only be worked out in a fully free society.



Comment #11

Friday, April 4, 2008 at 9:45:11 mdt
Name: Paul Hsieh
URL: http://www.geekpress.com

Just to elaborate a little bit on what Diana has already written: Of course we already know that there are important and distinctly different levels of human conscious phenomena. Our perceptual faculty is automatic and does not require any volition to work; our senses deliver data to us in a causal fashion without any volition on our part. In contrast, our conceptual faculty *is* volitional; we have to choose to integrate (or misintegrate) perceptual data to reach conceptual evaluations and conclusions.

So what we were wondering is whether this distinction is also the relevant one for the purposes of nuisance law. For the sake of discussion, consider the simplest case where two next-door neighbors Adam and Bill each reside on their own private property, but live in sight of each other's houses. What sorts of displays can Adam legally place on his property that would be visible/audible/etc. to Bill who would be sitting on his own property (assuming no prior contractual agreements between the two of them otherwise)?

Of course, we correctly recognize that some degree of light, sound, odors, etc., originating from Adam's property onto Bill's property is unavoidable. If Adam puts up a small flag with the New York Yankees logo on his front lawn flagpole, that would be his right, even if Bill is a die-hard Boston Red Sox fan who completely hates the Yankees.

What I would like to say is that if Bill is faced with an unavoidable *perceptual* interference from Adam's display such that it destroys Bill's use and enjoyment of his own property, then that becomes a rights-violation. For example, if Adam erects a garish neon sign that is so bright that Bill's sensory apparatus cannot help but transmit noxious stimulus to his awareness, or if Adam cranks up his stereo too loudly such that it is literally unavoidably painful, then Adam has crossed the legal line.

On the other hand, if the magnitude of the perceptual impingement on Bill's senses is within the normal allowable range, and Bill's objection is at the *conceptual* level, then I would like to say that this is *not* a rights-violation. So Adam hanging a Nazi swastika flag on his front lawn flagpole should be legal, as long as a similarly-sized American flag (or New York Yankees banner) would have also been similarly unobtrusive to Bill considered purely at the level of sensory stimulus.

Of course, this does not mean we have to revert to ethical or aesthetic subjectivism. If Adam puts up a small Nazi flag (or a similarly sized flag with a distasteful portrayal of two naked people engaging in sex), we can still condemn Adam as immoral. But we would still have to respect his legal *right* to do so - i.e., the government would not have the legitimate power to force him to remove that flag.

I very much wish to protect conceptual levels of expression where there is no perceptual level problem. Otherwise, we end up taking the position that the government should prohibit some forms of expression based purely on conceptual content, and I am hesitant to make that particular argument (at least not without a compelling reason).

So in a nutshell - that's the key question: Is this distinction (perceptual vs. conceptual) the proper place to draw such the legal line? Or is there a different place to draw the legal line, and if so based on what objective principles? Neither Diana and I are committed to this particular theory, which is why we are posing the question.

(BTW, I've framed it in the form of two next-door neighbors in order to eliminate the complicating issues of "public property" or of one person entering another's property, and the corollary issue what sorts of warnings the owner should give to the visitor. Once the fundamental issue is worked out in this simpler context, then I think these secondary issues will be straightforward.)



Comment #12

Friday, April 4, 2008 at 11:17:20 mdt
Name: Adam Reed
URL: http://www.calstatela.edu/faculty/areed2

Paul,

I don't think that this is the context that Ayn Rand was writing about - but the example you propose does illuminate the principle that, except for credible threats, in the general context any perception-based legal limits should be concept-neutral.

I don't know how this is done in Colorado, but here in California many people choose to live in private communities with a hedge of tall trees to shield them from seeing things that they don't want to look at. There is also a thriving industry that makes custom decorative banners, occasionally designed by real artists, used by people who wish to block some part of the view from their terrace or yard, and substitute what they prefer for what they dislike. So in the case of next-door neighbors, there is already a mechanism that deals quite adequately with conceptual-level preferences. If you don't like what the neighbor displays, just put up a hedge or a banner on your own property; no need to call on the state to intrude. The perceptual-conceptual boundary that you propose is equally applicable, for the same reason, in commercial environments.

I still think that what Ayn Rand wrote about was a very narrow exception, to protect the parents of children, and caretakers of adults who don't have a normal adult capability to consent, from the nuisance of having to explain contextually inappropriate stuff to their charges. Principles, like all abstractions, have their contextual scope; a narrow exception like this one does not contradict the principle - not if you track the context.



Comment #13

Friday, April 4, 2008 at 11:21:19 mdt
Name: Adam Reed
URL: http://www.calstatela.edu/faculty/areed2

Make it "most abstractions," not "all abstractions," in my previous sentence.



Comment #14

Saturday, April 5, 2008 at 2:19:29 mdt
Name: Wendy

I agree with Paula in that this could be taken to bizarre extremes, on the basis of the word "loathesome" as in the case of a fast-food crusaders. Just witness the fact that hard alcohol and cigarettes can't be advertised on television, and even beer ads can't show anyone actually drinking the beer.



Comment #15

Saturday, April 5, 2008 at 13:40:53 mdt
Name: Paul McKeever
URL: http://www.paulmckeever.com

Before we all get too far afield, I think it's important to note something. The quotation in question appears in the "Free Speech" section of the Lexicon. Under that same heading appears the following quotation from Ayn Rand's "Censorship: Local and Express," (Philosophy: Who Needs It, 173):

"I want to state, for the record, my own view of what is called "hard-core" pornography. I regard it as unspeakably disgusting. I have not read any of the books or seen any of the current movies belonging to that category, and I do not intend ever to read or see them. The descriptions provided in legal cases, as well as the "modern" touches in "soft-core" productions, are sufficient grounds on which to form an opinion. The reason of my opinion is the opposite of the usual one: I do not regard sex as evil--I regard it as good, as one of the most important aspects of human life, too important to be made the subject of public anatomical display. But the issue here is not one's view of sex. The issue is freedom of speech and of the press--i.e., the right to hold any view and to express it.

It is not very inspiring to fight for the freedom of the purveyors of pornography or their customers. But in the transition to statism, every infringement of human rights has begun with the suppression of a given right's least attractive practitioners. In this case, the disgusting nature of the offenders makes it a good test of one's loyalty to a principle."

I think it is safe to say that the "principle" in question was "the right to hold any view and to express it", and that Rand was saying one should uphold that principle even when ones loyalty to it is tested with "the disgusting nature of the offenders".

I haven't yet gone back and read the essay/article from which the quotation in question in this thread is taken ("Thought Control," The Ayn Rand Letter, III, 2, 2), but I will do so. Until then, my hunch about Rand's meaning this:

Take for example a restaurant in which smoking is permitted by the owner. Imagine a woman is quite allergic to tobacco smoke, and is pregnant. Imagine that it is not possible, from looking at the building, to know that the restaurant permits smoking. If the owner posts no sign on the outside of his building - where the woman can read it before deciding whether to enter - she will be exposed to smoke without intending to have been so exposed. She may have a horrible reaction. Some would argue that her pregnancy may be negatively affected. The legal question is, what should be the default: 1. leave the woman without the means to make an informed choice about something that might harm her, or 2. given the potential harm, give her the means to make an informed choice by requiring the posting of a sign, somewhere outside where she can see it before deciding whether or not to enter.

Replace smoke with imagery. What if it is a record store but, for some reason, the proprietor is showing not music videos on his store monitors, but replays of real footage of terrorists cutting the heads off of Americans. Such imagery can change you for life, and not necessarily in a good way. Many people will have nightmares that they could have avoided had they only been given notice about what sort of stuff was being played in the store. Should they be expected to roll the dice when something that disgusting is being shown, or should the proprietor be required to post a sign saying something like: "Currently showing: video footage of terrorists beheading actual Americans with knives".

Debates about such laws typically involve one person who says "There should be no limits...free speech is a matter of absolute black and white"...who sometimes veers into rehashes of the "leading edge of the wedge" and "slippery slope" routines; and another person who says "Jesus said..."; and another person who says "The correct standard is the public's standard"; etc.. However, I think good arguments might exist for treating some content as demonstrably, unambiguously different from others. Film footage of a crime, filmed by the criminals, I would offer as one possible example.

Again: I want to go back and read Rand's "Thought Control" before attributing any of my speculation, above, to her.



Comment #16

Saturday, April 5, 2008 at 15:25:33 mdt
Name: rrlv-frsh

If one wishes to analyze Ayn Rand's position in this kind of depth, then one should always check the complete original sources. Notice, for example, that there is some omitted text in the Lexicon excerpt, indicated by the standard elipses ("...."). Furthermore, in this case, the words "the rights of those who seek pornography" do not actually begin a new paragraph, but are a continuation of the omitted material. Here is what was omitted (entirely understandably, given the importance of brevity in a Lexicon). This is actually the start of the next paragraph in the original, immediately following the elipses in the Lexicon excerpt:

"No one has the right to do whatever he pleases on a public street (nor would he have such a right on a privately owned street). The police power to maintain order among pedestrians or to control traffic is a procedural, not a substantive, power. A traffic policeman enforces rules of *how* to drive (in order to avoid clashes or collisions), but cannot tell you *where* to go. Similarly, the rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive...."

What I see as essential here is Ayn Rand's distinction between a procedural power and a substantive power -- and between etiquette and morality, which is noted in the Lexicon excerpt. The omitted material reinforces and emphasizes the distinction, emphasizing the perspective of governmental power.

Another point: Ayn Rand's views on sex, love and femininity are also crucial factors in her view of pornography's offensiveness. While I agree with Ayn Rand, I am aware that many observers question the objectivity of her views on those topics, particularly femininity. Refer to the Lexicon entries on Sex, Love and Femininity for further details. The full text from which the Femininity entry is excerpted can be found in Ayn Rand's book, The_Voice_of_Reason, Chapter 26, where Ayn Rand explains why she believed that a *rational* woman would not want to be president. (Before deciding whether or not Ayn Rand's comments about a woman president would apply to Ms. Clinton, one must first decide whether or not Ms. Clinton qualifies as *rational* in her approach to attaining and carrying out that job and other aspects of her life.)

---------------
P.S. I have found it necessary to use "*" and "_" above in lieu of underlining or italics, since HTML tags apparently are not accepted.



Comment #17

Saturday, April 5, 2008 at 15:41:27 mdt
Name: Jason

I have nothing to contribute to this discussion right now, but I wanted to drop in and say that it has so far been very educational.

In particular, I complement Paul's identification of an epistemological "key log" in determining the root concept. Too often, my thoughts on tricky legal/political issues stop with an floating ethical standard, which I usually put on a mental back-burner.



Comment #18

Saturday, April 5, 2008 at 17:38:18 mdt
Name: Guy Barnett

In response to Paul Hsieh's comment, I don't think the distinction can be drawn along the perceptual versus conceptual line. For starters, there are a number of situations where potential perceptual interferences do not constitute an infringement of your neighbour's rights. Consider the example of someone who builds a house next to a noisy factory. Obviously, the new homeowner knew (or should have known) that there would be noises coming from the factory, so he cannot insist that the factory somehow decrease the volume of the noise.

Now consider a conceptual interference. If you move into a normal residential neighbourhood and a neighbour puts large obscene posters on the outside of his house, that would certainly constitute an interference of your rights. Now every time you walk or drive by your neighbour's house, look out your window, use your backyard, enter, or exit your home you're disgusted with the spectacle. Building a privacy fence, which you may not be able to afford, will only partially block the poster; you will still see it when you walk or drive by the neighbour's house. And even if the privacy fence did remedy the problem, you being forced to build it would be the equivalent (in reverse) of the factory owner being forced to build thicker walls to prevent noise from escaping the factory--hardly a fair solution. No one moving into a normal residential neighbourhood would reasonably expect to endure such a situation.

Finally, consider a neighbour playing music in his backyard from time to time at normal volume levels that you, personally, find offensive. Although you may find the music slightly annoying, one could not really call this an interference with your right to enjoy your property. Anyone moving into a normal residential neighbourhood knew (or should have known) that there might be neighbours playing music from time to time, at normal volume levels, which they do not like. The same goes for overhearing a neighbour's obscene conversations or accidentally seeing a nude neighbour inside his house (when he forgot to pull down his blinds). Such things are going to happen sometimes if you choose to live in close proximity to other people, and they do not constitute infringements of your rights. Anyone choosing such a lifestyle knew (or should have known) that.

I think the principle for such situations has to be drawn along the line of what one would reasonably expect, given the context. Judges in the more rational culture that we're building will have to be relied upon to judge what one could reasonably have been expected to know, before buying/building a home or business. By the way, I think the same principle applies to when you visit a store, restaurant, etc. If someone has obscene material displayed in their shop and there was no reasonable expectation of such material being present, that is certainly an infringement of your rights. Obviously, this would not apply to brothels, stores that sell pornography, or any establishment which has warning signs outside of their stores.



Comment #19

Saturday, April 5, 2008 at 20:08:02 mdt
Name: Mel McGuire

Putting two pieces from other comments together, Rand is using "procedural power" to support the "right not to see or hear." As I see it, this right requires the ability to avoid, but one can't avoid something without a forewarning. Hense, the use of procedural power to enforce a forewarning. But what happens if you can't avoid it, like the porn posters mentioned by Guy, or book covers in a store window. Banning posters with such content is the only solution I can think of. However, I don't see why the "right not to see or hear" would only be concerned with porn. Would there need to be a warning about techno music being sometimes played in a restaurant? And maybe my analyis is coming unglued. That's all I've got anyway--sorry.

I agree with the restriction on sensory stimulation that has disabling measurements: intensity, frequency, duration, and size come to mind as possible problems. Would having a neighbor put up a huge sign (even with a promotion of reason on it) across the street warrant restriction because of its sensory size as seen by me? (Ok, right now I'd love it, but the point is clear I hope.)



Comment #20

Sunday, April 6, 2008 at 10:00:01 mdt
Name: Valda Redfern
URL: http://valzhalla.blogspot.com

Like Guy Barnett, I "don't think the distinction can be drawn along the perceptual versus conceptual line." If your upstairs neighbours practise their country dancing at 3 am, they are causing a nuisance even though the noise they make is far below the level that could cause auditory damage. If they do the same thing during the day, they aren't violating your rights, even if you're a nighshift worker who can't get to sleep because of them. It is a matter of what is reasonable given the conventions of the society in which you live, and the particular context of the situation.

Likewise, if an advertiser displays a gigantic poster of a full frontal nude in some public thoroughfare, it is reasonable to object to that, just as it is reasonable to prevent people from walking around in the nude in public places - or even in their own gardens, if those are overlooked by neighbouring properties. I think you have a right not to see your neighbours in all their glory every time you look out of your own window.



Comment #21

Sunday, April 6, 2008 at 16:03:24 mdt
Name: Adam Reed
URL: http://www.calstatela.edu/faculty/areed2

What about crucifixes? Symbol of self-sacrifice, mental associations with Mel Gibson's S&M snuff movie - and not all that easy to explain to innocent kiddies either. Really unbeatable on the loathsomeness index. Citizens, ther oughta be a law!



Comment #22

Monday, April 7, 2008 at 5:27:44 mdt
Name: Steve D'Ippolito

This is undeniably a tricky issue.

I think I see general agreement that painfully loud sounds or bright lights could be forbidden under a "nuisance" law. But I see a couple of problems here.

1) As I unfortunately know from personal experience, some people have "hyperacusis" where a sound that is at normal, or at least tolerable, volume levels to other people are painful to the sufferer of hyperacusis. This is a common phenomenon, in fact, for people with damaged hearing. It may be that the answer here is basically that you must use a normal, non-"broken" human being for the standard.

but

2) What if the music or lights are not *painful* but merely loud/bright enough to prevent you from using your property? What if you cannot *sleep* because the neighbor's got his stereo on at 2AM? Or because the ballpark next door is shining lights into your bedroom (a situation that actully happened to someone here a few years ago; they could read the classified ads in the newspaper by that light)? Now even if this is conceded to be a valid nuisance for the purposes of the law, one must set that level objectively; you could (for example) use "Painful - 70dB" for noise.

Paula Hall said: "Among other requirements, to be objective, a law must establish a bright-line rule. Use of property in a way that causes uncontracted-for and uncompensated damage to property owned by third parties may properly be forbidden. Such a use causes a nuisance. I am having a hard time making out a nuisance in the situation described in the quote I saw on the Ayn Rand Lexicon. " I quote this now to set the stage for something I will say somewhat later.

re: pornography (back to Paula's quote). If Adam and Bill are neighbors, and Bill erects a billboard (what other kind of board would someone named "Bill" erect?) and portrays sex scenes, even if Bill cannot see the billboard (it faces the street, not Bill's house), an argument could be made that Bill has harmed Adam, by reducing the value of Adam's property. Many people will not want to buy Adam's house because of the Bill's billboard. This would be "uncontracted-for and uncompensated damage." Unfortunately this *is* the rationale for zoning and other sorts of laws restricting where porn shops can operate. I suppose that could be fixed by using the civil courts after the fact, rather than prior restraint via zoning.

To sum up I *do* see issues with not declaring something a nuisance until it is physically painful. I haven't figured out a truly fundamental philosophical answer though.



Comment #23

Monday, April 7, 2008 at 5:31:34 mdt
Name: Steve D'Ippolito

...Another one--I recall hearing once that they explicitly banned R-rated movies in drive ins because they could distract drivers; makes some sense to me. It's hard to actually safely maneuver a >1 ton mass of speeding metal when your eyeballs are figuratively touching the windshield because they just saw some nudity on a screen.



Comment #24

Monday, April 7, 2008 at 6:51:57 mdt
Name: Paula

Just want to say how gratified I am by the discussion, it's been most useful for me, particularly Paul's perceptual/conceptual distinction.

It seems to me that many of the arguments that have appeared in the comments for banning some types of conceptual content (going with Paul's dichotomy) presume a certain pre-existing state of mind on the part of the person consuming the content. That is, there is a presumption that certain kinds of content are per se objectionable. For example, emphasizing text from some of the comments I've seen above:

Sajid: ". . . clearly some kind of legislation is needed in these issues (I know that *I do not want to look at pornography in public*)"

Adam Reed: "I still think that what Ayn Rand wrote about was a very narrow exception, to protect the parents of children, and caretakers of adults who don't have a normal adult capability to consent, from the nuisance of having to explain *contextually inappropriate stuff* to their charges."

Paul McKeever: "*Many people will have nightmares* that they could have avoided had they only been given notice about what sort of stuff was being played in the store."

Guy Barnett : "If you move into a normal residential neighbourhood and a neighbour puts large obscene posters on the outside of his house, that would certainly constitute an interference of your rights. Now every time you walk or drive by your neighbour's house, look out your window, use your backyard, enter, or exit your home you're *disgusted with the spectacle.*"

Guy Barnett : "If someone has *obscene material* displayed in their shop and there was no reasonable expectation of such material being present, that is certainly an infringement of your rights."

Valda Redfern: "I think you have a right not to see your neighbours *in all their glory* every time you look out of your own window."

My difficulty with the above arguments is that to grant their validity would be to assert that it is proper to legislate to a particular state of mind. There is no way to be objective in the law about a given state of mind, in the sense that one can be objective about the initiation of physical force. Even when you get to motive in criminal law, you're talking about *evidence* adduced about a motive, and the evidence adduced is that someone's (physical) behavior is consistent with a particular theory of that person's motive.

There were comments made essentially arguing that offensive conceptual material could be considered an initiation of force, that I in turn wish to comment on.

rrlv-frsm quoting Ayn Rand: "A traffic policeman enforces rules of *how* to drive (in order to avoid clashes or collisions), but cannot tell you *where* to go. Similarly, the rights of those who seek pornography would not be infringed by rules protecting the rights of those who find pornography offensive...." [Emphasis as appeared in rrlv-frs's comment]

In this excerpt Rand seems to imply that police power -- the power of the gun -- should be invoked when someone claims "offense" just as it should be invoked to mitigate the danger of physical injury from chaotic driving or being roughly jostled by crowds or pedestrians otherwise running amok. The traffic or pedestrian issue is clearly about protecting people's personal integrity. I do not see where there is a threat to one's physical integrity from being offended -- if so, I suppose I could call the police to have every "pro-lifer" arrested. (BTW, "pro-lifers" threaten me, a woman, with actual physical harm, which no pornographer does.) The problem is defining what is "offensive," and the expanded quotation from Rand does not help me in this regard. "Offensive" by what standard?

Several comments wondered what should be done where a property owner erects displays on his/her property that a neighbor, or even the entire community, deems offensive. My first reply is to refer to JBennet's point that this is the type of thing that would be handled in a truly free society with private restrictive covenants and the like. I would also like to add that in such a case, a voluntary neighborhood association would be perfectly within its rights to exercise every kind of persuasion and social pressure imaginable to get that property owner to take down the display. If appealing to the community spirit of the property owner didn't work (and it usually would), there's always the nuclear option: that is, make the property owner a pariah in the neighborhood. For example, the association could determine where that property owner does his/her grocery shopping, and then threaten the owner of that grocery store with negative publicity and a boycott if the grocery store continues to do business with that property owner. Just one drastic possibility. If the neighborhood association cared enough, it could take up a collection and buy the property owner out. These are probably very poor examples of action that could be taken, they're just off the top of my head. My point is, private citizens are not helpless in the face of such displays if it is agreed this is an improper sphere for the exercise of police power.



Comment #25

Monday, April 7, 2008 at 11:12:19 mdt
Name: Adam Reed
URL: http://www.calstatela.edu/faculty/areed2

Paula,

You may be right - I certainly didn't mean to extend the very narrow exception that Ayn Rand seems to be arguing for, beyond the specific concerns of parents and of caretakers for adults with mental disabilities. As for Valda Redfern's call for repression of backyard nudism, this just very, very far from something that Ayn Rand, who never found anything objectionable in recreational nudity, could have been wanted to include in what she was writing about. As you may have guessed from my crucifixes posting, I'm beginning to have doubts about even the narrow exception for images that are difficult to explain to children. I think that we need more (and at a more abstract level) work on the fundamentals of philosophy of law.



Comment #26

Monday, April 7, 2008 at 11:27:29 mdt
Name: J.H.

"I think that we need more (and at a more abstract level) work on the fundamentals of philosophy of law."

I agree and for me this is the point I take from this thread. In order to fully implement Laissez Fair, there needs to be a fully developed and consistent Objective jurisprudence. Right now, we just don't have one. We have a great rational philosophy but much more abstract work needs to be done.



Comment #27

Tuesday, April 8, 2008 at 0:43:51 mdt
Name: Doug

I dont see the problem.

You cannot determine a "standard" in this case, as some people find things offensive that others do not. That is the wrong place to start. To attempt to enforce a standard where one cannot exist by definition, is to tailor the law to the subjective "offense" of others.

Actions to this end mean that the government has taken on the role of legislating morality.

Thus, regulation of "sights [individuals] regard as loathsome" would open the door to any number of irrational regulatory edicts.

If enough complaints are recieved, most posters and advertisments are sure to come down and be only available in isolated places.



Comment #28

Tuesday, April 8, 2008 at 11:48:35 mdt
Name: Guy Barnett

In reading my previous comment and other people's comments, I realize that I didn't make clear what the underlying principle is. In other words, I failed to state how acts like putting up an obscene poster constitute force against others.

I think the answer is that such acts violate one's property rights. Consider why you might buy a house, for example. Normally, you would do so in order to use the house. So, you are planning to sleep in the house, read in the house, go to and from work from your house, spend time gardening in your backyard, etc. If you buy a house, you have a right to use it for these and other similar purposes. Such uses are implied in the right to own such property.

As with any other right, exercising your property rights cannot involve infringing other people's rights. In this context, that means that you cannot use your property in such a way that it interferes with other people's ability to use their property.

Before I go any further, let's keep in mind that almost any use of your property will have an impact on the property of your neighbours. If you make noises, that noise will, to some extent, impact your neighbours. If you breathe, some of the air will drift over to their property. If you sneeze, some of the bacteria will probably end up on their side of the fence. If you turn on your lights, some of the light will go into their windows. The fact of the matter is that most things neighbours do have some impact on each other.

Obviously, not all effects on other people's properties are an infringement of their property rights though. And clearly no neighbour can demand that you somehow stop impinging altogether on their property. This would be metaphysically impossible.

Thus, a judge has to determine what impingements are reasonable, given the context, and what impingements prevent a neighbour from being able to use his property for all usual purposes. No one disagrees that loud noises would prevent you from being able to use your property for all usual purposes and thus would constitute an infringement of your property rights. I think the reason for this is that it is clear that you could not avoid such interferences and that it is patently unreasonable. The reason that people hesitate about condemning conceptual interferences is that they think that there is some subjectivity involved in determining what is objectionable and what is not.

I am arguing that there is no such subjectivity involved, but that it is contextual. Most people have a big problem with anything contextual. They want absolute rules--not seemingly "wishy washy" context dependent rules. Notice that many students of Objectivism have a problem with the concept of "certainty" for this very reason.

I don't think there is any doubt, for example, that putting an enormous billboard in your backyard with obscene pictures on it, which all your neighbours can see, prevents them from being able to use their property for all usual purposes. (Notice that you can't help but see it, in the same way that you can't help but hear the loud noises.) In such a case, the judge would have to recognize that neighbours have no choice but to impact each other, but he would have to determine if this particular impact prevents you from using your property for all usual purposes, given the context. Again, there's no absolute rule regarding obscene billboards for the judge to follow; instead, he has a principle that he has to apply--that property rights imply the ability to use your property for all usual purposes--while keeping in mind the context.



Comment #29

Tuesday, April 8, 2008 at 15:39:38 mdt
Name: Sajid

Well said Guy. However, you say:

>instead, he has a principle that he has to apply--that property rights imply the ability to use your property for all usual purposes-->while keeping in mind the context.

The problem is that while an objective defintion for what is bothersome to people as far as perceptual stimuli are concerned can be found (since humans are pretty much the same regarding how we tolerate loud noises glaring images etc.) the same is not true for conceptual stimuli and that is the issue here in this blog.

Thus, if I am sitting on a park bench and a woman sits next to me that is okay. If she is nude that is not okay. The perceptual stimuli are approximately the same in both cases.

I (and I think objectivism does too) consider sexual stimulation to be a conceptual stimulus since sex has much to do with the mind. However, perhaps sexual stimuli must be treated on a different footing because:

a) The stimuli are very powerful and difficult to control.
b) I'm not even sure if racy images are entirely conceptual. In fact pornography can perhaps be defined as a form of sexual stimuli that crosses the perceptual-conceptual boundary i.e. stimulates ones sexual organs mindlessly.

Due to the reasons above we have to legislate against being indecent in public because for example it would be difficult to go shopping if everytime I went I had to endure a raging boner. And since sexual images are also conceptual this automatically opens up a Pandora's box.

Also, even if we were able to find some objective boundary where sexual stimulation crosses the perceptual-conceptual boundary (and I think one can be found. The boundaries we have today are pretty fair I think both in public and for movie ratings) the boundaries might be very different for different groups of people. What I mean is that if one is used to staring at fully clothed women always, even a bare midriff or bare legs could make you uncomfortable. Thus, in this instance should we allow local governments and cities to legislate on this issue according to how they see fit? It seems to make sense.



Comment #30

Tuesday, April 8, 2008 at 16:02:51 mdt
Name: Sajid

Also I just realized that as a follow up philosophical issue it is interesting to contemplate how are attitudes toward sexuality and obscenity have changed over the years. The fact that we have access to far more nudity and obscenity (thanks to the internet among other things) than we did a 100 years ago has been well documented. But is it even morally healthy to be desensitized to nudity and obscenity? One can argue no because sex is sacred while on can argue yes because if one understands oneself more he can separate less fundamental sexual stimuli (like nudity) from more fundamental ones (like a sense of life). I think this subject is quite interesting especially insofar as what it says about different people. However that is probably a topic for a different blog post.

I think I should also mention that while I and (many others) have considered mainly sexual issues there are of course other issues as well. For instance if men were as sensitive to images of food as to images of naked women images of big macs might be outlawed. Thus, another question we could ask is "How much self control must a man have? Can we deduce objective criteria for this on all issues?"

Also I would like to thank everybody for contributing to this discussion. At least I have found it both intellectually stimulating and enlightening.



Comment #31

Wednesday, April 9, 2008 at 1:52:59 mdt
Name: Paula

Sajid: Love the "raging boner" imagery! Maybe that's why I don't agree with the arguments about the inacceptability of sexually explicit displays -- female physiology! ;-)

More seriously, even sexual physiology doesn't rescue this. Although I am not sure, I think people can be desensitized to pornography with repeated viewing, so there would after a while cease to be any automatic physical response. This could lead to the (admittedly bizarre) argument that the solution to this issue is more pornographic displays, not fewer! Even if this weren't the case, there are no doubt men who, for whatever reason, would have no sexual response to sexually explicit displays, or a de minimis response (they could be preoccupied thinking about other things, or religious, or the display might depict acts unappealing to their sexual orientation, or their preference for blondes is so strong that they have zero sexual response to redheads . . . ). Or, men who might not mind being temporarily stimulated in that way. Or, men for whom the response would be fleeting and not a big deal to them. And you also reminded us that Rand held sexual arousal to be primarily mental. Bringing us back to the issue of the permissibility of legislating to the conceptual content of particular peoples' consciousness.

Guy raised some very interesting questions on where to draw the line, given that many uses of private property are perceptible to neighbors. And because we are rational creatures there will always be at least a mental effect. And because there is no mental effect without the physical apparatus of the senses to provide content, there is always some physical effect. Very interesting.

But this proves too much, as I think Guy is aware. I mean, this is an argument for so many types of pernicious legislation. That is, if it is permissible to physically restrain or punish someone when they use their property in a way that creates a mental/emotional effect in others, it's a slippery slope indeed. I think such a premise, consistently applied, could be used as a defense for egalitarian legislation, for example. If I am poor, disabled, and otherwise unable to advance my situation in life, and I am tortured by the sight in the media of someone born rich, smart and beautiful, and enjoying what can only be described as a blessed existence, I might call for censorship of the media (so I don't have to see this person), and proof that this person has been deprived of all the fruits of their natural advantages, as being the only thing that can relieve my injury of the sight of them in the first place.

I don't think referring to context or reasonableness rescues this notion. Because the context and the reasonableness requires a standard by which to judge these things, and the standard is always the conceptual content of some peoples' consciousness.

I think imagining how a case like this would be argued in court might be helpful. Let's say we have a per se rule that any time any someone uses their property in a way that produces a measurable physical effect on someone else's person or property, and this effect hasn't been contracted for or compensated for in advance, that there is an actionable nuisance. We'll include as a measurable physical effect the effect of light rays on people's retinas. The plaintiff argues: my property value has gone down, the content is inappropriate for my children so I've had to send them to a child psychologist, the content is totally offensive and disgusting to me, I can't enjoy my back deck because I have to see that thing, and I can't even sell my house at a price that allows me to relocate because of the display. The defendant argues: the display is totally on my property, I have breached no contract, I think the content of the display is fabulous, it's my personal expression, all the plaintiff means by saying his property value has gone down is that more people share his *opinion* of my display than share mine, and you do not prove the rightness of an opinion by the number of people who hold it. In a court of law, with a judge bound to administer objective rules, how should a decision be made between those two arguments?



Comment #32

Thursday, April 10, 2008 at 20:50:53 mdt
Name: Guy Barnett

Paula said: "That is, if it is permissible to physically restrain or punish someone when they use their property in a way that creates a mental/emotional effect in others, it's a slippery slope indeed."

I started out by explaining that almost any use of your property will have some impact on your neighbours, which includes "mental/emotional effects". But that is not what I said the standard should be. I said that the standard is: the ability to use your property for all usual purposes. I said that this standard is implicit in the right to own property.

Thus, a judge must recognize that although neighbours will always impinge on each other, in different ways and to different degrees, some impingements are reasonable and some are not. The unreasonable ones are those that prevent you from using your property for all usual purposes.

Paula said: "I don't think referring to context or reasonableness rescues this notion. Because the context and the reasonableness requires a standard by which to judge these things, and the standard is always the conceptual content of some peoples' consciousness."

There are all kinds of laws that depend on judging "the conceptual content of some peoples' consciousness", but which are still objective. Judges have to determine if there was "intent" in murder cases. Another example is that contracts are only legally binding if there is a meeting of minds. In other words, if someone clearly didn't understand the agreement or thought he was agreeing to something completely different, the contract would not be legally binding. Yet another example is implied contracts. If you wave your hand at a taxi in NYC, the taxi stops, you get in, and tell the taxi driver a destination, there is an implied contract. When you get to the destination and he asks for money, you can't say that you thought he was just doing you a favour. All of these cases involve a judge looking at all the evidence, considering the context, and trying to determine what you were thinking, so that he can make his judgment. Why could this not be done for the kinds of cases that we've been discussing?

It doesn't lead to a slippery slope in cases involving people stealing taxi rides, even though someone could argue that he thought the taxi driver was just a nice guy who wanted to give him a ride. The judge can see that in NYC (the context) waving at a taxi driver has a certain meaning and he would rightly dismiss such arguments. What about the arguments that say that this is dependent on the judge knowing cultural norms? My answer is: "So what". That's right, judges have to be cognisant of cultural norms. If the cultural norms are different somewhere else, such that waving at taxis means something else, then the judge will need to know that to make his judgment. The same goes for when cultural norms change. If that happens and now waving at a taxi in NYC means "Stay away from me", then judges will have to be aware of that. All of these things fall into the category of a judge needing to understand the context.

Now let's apply this same logic to cases involving huge obscene billboards in normal residential neighbourhoods. A judge could certainly ascertain that, given the context (i.e. a residential neighbourhood where people intend to put their property to certain types of uses, like playing with their kids in the backyard) such billboards interfere with one's ability to use one's property for all usual purposes. This would be no different than a judge looking at the context of an industrial neighbourhood and deciding that louder noises are not an interference with a neighbour's property rights in that situation. Thus, someone can't build a house next to a factory and expect the same level of noise as in a normal residential neighbourhood.

By the way, I want to make clear that I am not endorsing laws or regulations on any of these matters. I am simply explaining how I think judges should interpret and apply the right to own property.



Comment #33

Friday, April 11, 2008 at 20:22:29 mdt
Name: Boaz

"Another example is that contracts are only legally binding if there is a meeting of minds. In other words, if someone clearly didn't understand the agreement or thought he was agreeing to something completely different, the contract would not be legally binding."

I'm enjoying this discussion (especially what I've read from Guy) but the above is not a correct statment of the law in the U.S., where a contract *is* legally binding even if one of the parties "thought he was agreeing to something completely different." Contracts are enforced even if the parties subjectively disagree on the terms (and even, sometimes, when they disagree that there ever WAS a contract). There are exceptions, the most obvious of which is fraud.

"If you wave your hand at a taxi in NYC, the taxi stops, you get in, and tell the taxi driver a destination, there is an implied contract. When you get to the destination and he asks for money, you can't say that you thought he was just doing you a favour. All of these cases involve a judge looking at all the evidence, considering the context, and trying to determine what you were thinking, so that he can make his judgment."

Again, it generally won't matter what you were thinking. What matters is that hailing a cab and accepting the cab ride are forms of behavior that a reasonable person would see as agreeing to pay money for a service.



Comment #34

Saturday, April 12, 2008 at 17:28:28 mdt
Name: Guy Barnett

Boaz, I am glad you are enjoying the discussion and my posts. Thank you.

You wrote: "Contracts are enforced even if the parties subjectively disagree on the terms (and even, sometimes, when they disagree that there ever WAS a contract). There are exceptions, the most obvious of which is fraud."

It is true that contracts are enforced in situations where there is disagreement on what the terms of the agreements were. But this is a very different kind of case than those where there is a dispute about whether or not a contract even exists. These two types of cases shouldn't be grouped together.

With the former type of case, the fact that two parties presently disagree about the terms of the contract doesn't change the fact that, originally, there was an agreement, with specific explicit and/or implicit terms. In other words, at one time there was a meeting of the minds and it is the job of the judge to what that "meeting" consisted of.

With the latter type of case, the question is whether or not there was a meeting of the minds and thus, whether or not a legally enforceable contract exists. By the way, a meeting of the minds is just one requirement of a legally binding contract. There are many other reasons that a contract can legitimately be deemed non-enforceable. It is my observation that judges in the United States, Canada, and other places will ignore these objective requirements when they are biased against one of the parties, but this is not relevant to our discussion. Our discussion is about how rights ought to be enforced in a free society---not how they are presently enforced in the United States.

You wrote: "Again, it generally won't matter what you were thinking. What matters is that hailing a cab and accepting the cab ride are forms of behavior that a reasonable person would see as agreeing to pay money for a service."

This is a mind-body dichotomy. Your behaviour is determined by your mind. A good judge will look at your behaviour, ONLY because it indicates why you behaved as you did. In other words, your behaviour is evidence of what was going on inside your head---whether or not, in fact, you agreed to pay money for a taxi ride. Based on this evidence, if the judge thinks that you were incapable of understanding the agreement or just had a completely different understanding of what the agreement was, he should rule that no agreement existed. Normally, there is every reason to think that a normal person did understand the taxi agreement and is just trying to get away with stealing. (This doesn't mean that there isn't a different legal basis for holding someone liable for the cost of the taxi ride, in the rare case where there was no legally binding contract.)

This whole thing is a side issue though. The point of the taxi example was just to demonstrate that: "There are all kinds of laws that depend on judging 'the conceptual content of some peoples' consciousness', but which are still objective." I don't think anyone has offered a good argument disputing this point, at least not yet.



Comment #35

Sunday, April 13, 2008 at 14:27:32 mdt
Name: Boaz

Hey Guy,

I'll answer briefly here, though I might like to pursue this tangent further by email. You're clearly playing with live ammunition, and I'm curious about the gap between what I've learned and what you're reporting from direct experience with American judges.

"It is true that contracts are enforced in situations where there is disagreement on what the terms of the agreements were. But this is a very different kind of case than those where there is a dispute about whether or not a contract even exists. These two types of cases shouldn't be grouped together."

Both of us are implicitly grouping them together under opposing theories. My understanding was that courts have largely abandoned the "meeting of minds" requirement in favor of a "modified objective" approach. Thus: (a) I offer you my car for 10K, then sell it to Diana for 15K without me or anyone else informing you. Two seconds later you show up at my door with a check for 10K. Our minds never met, but voila! the law says I was bound to a contract the moment you showed up with a check. (b) I offer you my car and you reply with a letter agreeing to pay 10K provided I allow you to park in my driveway for six months. I read the letter and throw it away. The next day you send a check for 10K, which I promptly sign and cash on my way to Vegas. Does it matter that I never intended to let you park in my driveway, or that I assumed you would act sensibly and just take the damned car to your own damned house? Nope. Your terms dictate the agreement, contrary to my subjective intentions.

In neither case did we ever actually have a "meeting of minds" -- we never agreed on the same thing. Still, on the "modified objective" theory, the law (ostensibly) cares more about what our communications would signal to a "reasonable person," even if sometimes the end result is contrary to one of the parties' actual intentions. This conflicts with the spirit of the criminal law, according to which you haven't stolen my car if you sincerely (albeit unreasonably) believed it was yours to begin with. If you can convince a jury that you believed it was your car, you don't go to jail. It's here that a judge and jury would look at your behavior ONLY "because it indicates why you behaved as you did." Or have my professors steered me wrong? (I'll save the rest of the contracts discussion for later, unless other people decide to pursue it further in connection with nuisance.)

Here's where I think you're right on nuisance: there are all kinds of laws whose application necessarily depend on judging the content of *someone's* consciousness. You can (and should) be held guilty of (tortious) battery for blowing cigarette smoke in someone's face -- if a judge determines that you *knew* that your victim had really bad allergies. But that's easy.

Whether or not someone's rights are violated will often depend on his (non-contractual) expectations in a given social context. The only way to enforce those rights and administer justice is for a judge to weigh those expectations against a set of cultural assumptions. I'm not sure if the conceptual/perceptual distinction can solve this. Americans clearly have a more visceral sensitivity to male nudity than Europeans. Surely that's not just a perceptual issue, but rather something to do with shared philosophical assumptions and aesthetic preferences.

So, should my neighbor have to pay for a higher fence because I don't like to see him naked? (God only knows I won't complain much if it's a woman.) Or is that the sort of thing I'm risking and bargaining for by lighting a cigar on my third-story porch? And what if I host a party for cigar smokers in my back yard? Mike Hardy evidently believes I should go to jail for this, but clearly that wouldn't be considered a tort or property violation in the sixties, when Ayn Rand was writing about pornography. Is there an answer that doesn't depend, at least to some extent, on transient cultural assumptions?