“Public indecency” generally refers to acts involving nudity or sexual activity in view of the public, often with the intent to shock, offend, or arouse. It includes criminal offenses like indecent exposure and lewd conduct. Some states use the term “public indecency” to refer to other offenses relating to public nudity, including the display or promotion of obscene materials. The U.S. Supreme Court affirmed the right of states to outlaw public nudity, holding that the state has an interest in “protecting societal order and morality,” and that public nudity is not “free expression” protected by the First Amendment. Barnes v. Glen Theatre, 501 U.S. 560, 568 (1991). Sexual activity in public is illegal throughout the U.S., but states and localities differ on what constitutes illegal public nudity, both in terms of what body parts are considered “indecent” and whether that state must prove that a defendant had a particular intent.
The mere act of public nudity, or exposure of specific body parts, is illegal in many parts of the U.S., while in others the state must prove that a defendant specifically intended to cause shock, offense, or sexual gratification. For example, Vermont does not expressly prohibit mere public nudity. Its only statute addressing public nudity specifically applies to “open and gross lewdness and lascivious behavior.” In California, a state appellate court ruled in a 2000 decision that the indecent exposure statute, which requires proof that a defendant acted “willfully and lewdly,” only applies when a defendant intends to arouse the self or another person.
Law enforcement may use lesser offenses like disorderly conduct in cases that lack intent to shock, offend, or arouse. The Texas indecent exposure statute, which is categorized as a “sexual offense,” requires proof of this type of intent. The disorderly conduct statute, however, applies to public exposure of the anus or genitals with recklessness as to whether anyone would be “offended or alarmed.” An individual who is naked in public with no unlawful intent may still violate the law, therefore, if he or she is likely to cause a public disturbance.
Breastfeeding in public is not considered indecent exposure under U.S. law. Property owners and businesses, such as restaurants and stores, are not necessarily obligated to permit breastfeeding on their premises, but they must have consistently applied policies.
In a legal sense, “lewdness” has a higher degree of offensiveness than “indecency.” Whereas indecent exposure statutes generally refer to public exposure of the genitals, anus, or, in some jurisdictions, female breasts, lewd conduct statutes address public sexual activity. This could include two (or more) people engaged in sexual intercourse or other sexual contact in view of the public, or an individual displaying his or her genitals in an aroused state. Lewd conduct is therefore a more serious criminal offense than indecent exposure.
The actual definition of “obscenity” varies from one community to another. The Supreme Court established a three-part test to determine obscenity: (1) the work appeals to “prurient interest,” based on “community standards”; (2) it depicts or describes sexual conduct “in a patently offensive way”; and (3) it “lacks serious literary, artistic, political, or scientific value.” Miller v. California, 413 U.S. 15, 24 (1973). Many states consider the display or distribution of materials deemed “obscene” to be a form of public indecency. Federal regulations prohibit the broadcast of obscene or profane materials on television or radio.
Other Offenses Considered “Public Indecency”
Some jurisdiction consider other offenses to constitute public indecency. The Texas Penal Code, for example, categorizes indecent exposure and public lewdness as sexual offenses. Criminal offenses classified as “public indecency” under Texas law include prostitution and related offenses, obscenity, and the use of computer networks to transmit illegal images of children.