Readers may recall that a couple of years ago I wrote about the story of Stephen Gough, aka the Naked Rambler, a man who has been repeatedly incarcerated in British prisons since 2006 for his refusal to wear any clothing in public. Indeed, he has spent most of that time in solitary confinement, since he could not join the rest of the prison population while refusing to wear clothes. Gough’s behaviour is due to a strongly and sincerely held belief that there is nothing shameful about the naked human body. And while Gough certainly has been obstinate (and has for some unfathomable reason sacrificed his family and other relationships for the sake of this cause), he is not crazy – indeed, his psychiatric evaluations have been stellar.
This case is so interesting precisely because it juxtaposes the expressive interests of a single individual against the preferences of the vast majority of ordinary people, who disapprove of public nudity, and because of the way that the machinery of the state is used to enforce a societal nudity taboo. Indeed, Gough’s case now rambled all the way to Strasbourg. This week, a unanimous Chamber of the European Court of Human Rights rejected Gough’s claims that his freedom of expression and right to private life were violated by his convictions in the UK (app. no. 49327/11).
Here are the key parts of the judgment: in paras. 147-151 the Chamber rightly concludes that Gough’s nudity was a form of expression protected by Article 10 ECHR, and that his convictions constituted an interference with that right:
150. In the present case, the applicant has chosen to be naked in public in order to give expression to his opinion as to the inoffensive nature of the human body (see paragraphs 55 and 147 above). The Court is therefore satisfied that the applicant’s public nudity can be seen as a form of expression which falls within the ambit of Article 10 of the Convention and that his arrest, prosecution, conviction and detention constituted repressive measures taken in reaction to that form of expression of his opinions by the applicant. There has therefore been an interference with his exercise of his right to freedom of expression
But more problematically, this is how the Court defines the legitimate aim that the interference had pursued:
158. Having regard to all the circumstances surrounding the actions of the applicant and the police, the Court accepts that the measures aimed to prevent disorder and crime. However, the parties did not make detailed submissions identifying more clearly the precise nature of the disorder and crime which the measures were taken to prevent. It is clear that in a straightforward sense, the measures were designed to prevent the applicant’s committing breach of the peace through causing offence to and alarming other members of the public by confronting them with his naked state in public. However, the applicant’s arrest, prosecution, conviction and imprisonment can be seen to have pursued the broader aim of seeking to ensure respect for the law in general, and thereby preventing the crime and disorder which would potentially ensue were the applicant permitted to continually and persistently flout the law with impunity because of his own personal, albeit sincerely held, opinion on nudity.
‘Ensuring respect for the law in general’ seems quite an illiberal basis for limiting the freedom of expression, and for that matter not one stated in Article 10(2) ECHR. And of course saying that punishing public nudity serves to prevent crime merely begs the question of whether public nudity should be a crime. Then:
172. The Court is prepared to accept that the extent to which, and the circumstances in which, public nudity is acceptable in a modern society is a matter of public interest. The fact that the applicant’s views on public nudity are shared by very few people is not, of itself, conclusive of the issue now before the Court (see, mutatis mutandis, Young, James and Webster v. the United Kingdom, 13 August 1981, § 63, Series A no. 44). As an individual intent on achieving greater acceptance of public nudity, the applicant is entitled to seek to initiate such a debate and there is a public interest in allowing him to do so. However, the issue of public nudity also raises moral and public-order considerations. The comparative data supplied by the Government show that even in the small number of States surveyed, the responses of the law and of the authorities to public nudity are far from uniform. In these circumstances, the applicable margin of appreciation in reacting to instances of public nudity, as opposed to regulating mere statements or arguments on the subject, is a wide one.
Here we have the Court deploying the margin of appreciation with respect to the particular form of expression (nudity as opposed to say plain speech), and on the basis of a rather flimsy survey of the practice of (only some) of the ECHR member states. The Court then engages in proportionality analysis, of which these are the two key paras:
175. It is true that by the time that the 2011 sentence was imposed, the applicant had already served a cumulative total of five years and three months in detention since 18 May 2006, on remand pending fifteen criminal prosecutions and post-conviction pursuant to twelve sentences of imprisonment, with only four days’ spent at liberty during that period. At the point at which he subsequently left Scotland on 9 October 2012, he had spent almost six and a half consecutive years in prison with less than a dozen days at liberty throughout the entire period. The cumulative period of imprisonment in Scotland since 2003 for the repeated instances of his refusal to dress in public stands at over seven years. While the penalty imposed for each individual offence, taken on its own, is not such as to raise an issue under Article 10 in terms of lack of proportionality, the cumulative impact on the applicant of the measures taken by the respondent State, which was undeniably severe, is otherwise. However, the applicant’s own responsibility for the convictions and the sentences imposed cannot be ignored. In exercising his right to freedom of expression, he was in principle under a general duty to respect the country’s laws and to pursue his desire to bring about legislative or societal change in accordance with them (see, mutatis mutandis, Tănase, cited above, § 167). Many other avenues for the expression of his opinion on nudity or for initiating a public debate on the subject were open to the applicant. He was also under a duty, particularly in light of the fact that he was asking for tolerance in respect of his own conduct, to demonstrate tolerance of and sensibility to the views of other members of the public. However, the applicant appears to reject any suggestion that acceptance of public nudity may vary depending on the nature of the location and the presence of other members of the public. Without any demonstration of sensibility to the views of others and the behaviour that they might consider offensive, he insists upon his right to appear naked at all times and in all places, including in the courts, in the communal areas of prisons and on aeroplanes (see, for example, paragraphs 22, 29, 33, 53, 76 and 93 above).
176. The applicant’s case is troubling, since his intransigence has led to his spending a substantial period of time in prison for what is – in itself – usually a relatively trivial offence (see paragraph 100 above). However, the applicant’s imprisonment is the consequence of his repeated violation of the criminal law in full knowledge of the consequences, through conduct which he knew full well not only goes against the standards of accepted public behaviour in any modern democratic society but also is liable to be alarming and morally and otherwise offensive to other, unwarned members of the public going about their ordinary business. Having regard to the considerations set out above and to the wide margin of appreciation, the Court finds that the reasons for the measures adopted by the police, the prosecuting authorities and the courts, and in particular those adopted in respect of his arrest in 2011, were “relevant and sufficient” and that the measures met a pressing social need in response to repeated anti-social conduct by the applicant. It cannot be said that the repressive measures taken in reaction to the particular, repeated form of expression chosen by the applicant to communicate his opinion on nudity were, even if considered cumulatively, disproportionate to the legitimate aim being pursued, namely the prevention of disorder and crime. In particular, Article 10 does not go so far as to enable individuals, even those sincerely convinced of the virtue of their own beliefs, to repeatedly impose their antisocial conduct on other, unwilling members of society and then to claim a disproportionate interference with the exercise of their freedom of expression when the State, in the performance of its duty to protect the public from public nuisances, enforces the law in respect of such deliberately repetitive antisocial conduct. Even though, cumulatively, the penalties imposed on the applicant undoubtedly did entail serious consequences for him, the Court cannot find in the circumstances of his case, having regard in particular to his own responsibility for his plight, that the public authorities in Scotland unjustifiably interfered with his exercise of freedom of expression. Accordingly, no violation of Article 10 of the Convention has been established.
The Court then comes to the applicability of Article 8 ECHR, i.e. whether Gough’s nudity formed part of his ‘private life.’ While the Chamber accepts that the concept of private life can (somewhat counter-intuitively) encompass interaction with others in a public context (para. 182), it basically argues that precisely because Gough’s nudity was expressive, i.e. was meant to communicate a message that there is nothing shameful about the nude human body, it became public and was thus outside the scope of Article 8 (para. 184).
In other words, the Chamber seems to be saying that if Gough was walking around naked merely because he liked doing so and found in this activity some personal fulfillment, then Article 8 would have applied. But because his main purpose was expressive, the activity transversed the ambiguous boundary between the private and the public. More troublingly, the Chamber then adds (also at para. 184) that ‘Article 8 cannot be taken to protect every conceivable personal choice in that domain [of personal appearance in public]: there must presumably be a de minimis level of seriousness as to the choice of desired appearance in question … Whether the requisite level of seriousness has been reached in relation to the applicant’s choice to appear fully naked on all occasions in all public places without distinction may be doubted, having regard to the absence of support for such a choice in any known democratic society in the world.’ I am honestly not sure what the de minimis ‘level of seriousness’ can really mean in this context, and what conceptual work it really does.
In sum, while I don’t think the Court’s bottom line is unreasonable (far from it), it seems hard to escape the conclusion that he Court endorsed a majoritarian hecklers’ veto. If, say, the majority in a country decided that everybody must wear a bland, gray uniform (forget for a moment religiously mandated dress in some states, which can have an additional gender component), wouldn’t the Court, on the reasoning it gave with respect to nudity, have to accept that this was a proportionate restriction on the freedom of expression since there were alternative means to express one’s disapproval of such a decision? I thus can’t help but be troubled by the Court’s approach (not that I have a ready alternative, mind you). Gough has meanwhile been jailed again, this time for two and a half years for breaching a court order not to be be nude in public.