The objection is to a convention, and conventions about the body have shifted repeatedly

The argument

A second argument concerns the status of the rule being defended. Proponents observe that what counts as indecent has moved repeatedly and in both directions. Garments once required in public are now unremarkable; coverings once thought modest are now thought absurd; standards differ sharply between countries otherwise much alike, and within a single country between a beach, a changing room, a street and a stage. The boundary is clearly drawn by custom rather than discovered. From this proponents draw a conclusion about the feeling that enforces it. The sense that something has been violated is learned along with the convention, which is why it attaches to different things in different places and why people who move between them adjust within weeks. Proponents accept that the feeling is strong and sincere, and deny that its strength is evidence about its object: a firmly held convention produces strong reactions whether or not anything is actually wrong, which is precisely why the reaction cannot be used to settle the question. Where a prohibition's whole justification is a convention, and the convention is known to be local and changeable, proponents argue that the burden lies with those who want it enforced by arrest. Discomfort can be addressed by looking away, by designated areas, by signage, and by the ordinary social pressure that governs most of how people dress. Reserving the criminal law for cases in which something is actually done to someone, they conclude, costs the objectors very little and spares everyone the spectacle of the state policing the surface of the body.

Premises

Counter-arguments

Opponents answer that the mutability of a convention is no argument against having one, since the same is true of nearly every rule of public behaviour, from queuing to noise at night. They add that conventions about the body are not arbitrary decoration: they underpin how people handle sexual attention, privacy and the raising of children, so a society that abandoned them by law would be making a far larger change than this argument acknowledges.

Rejecting the premises

[Rejecting P1] The shifts cited have been shifts within a convention of covering rather than movements towards abandoning it, so the record does not point where the argument takes it. [Rejecting P2] Resting on convention and resting on no identifiable harm are treated as the same thing. Conventions coordinate behaviour, and breaking a coordinating convention imposes real costs on everyone relying on it. [Rejecting P3] Social pressure and designated spaces work where there is already broad agreement. Where there is none, removing the legal baseline leaves the matter to whoever is least willing to yield. [Rejecting C] Leaving it to ordinary social means is not a neutral option. It settles who bears the cost of the disagreement, and places that cost on those who cannot avoid the space.