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I’m curious about the position in any jurisdictions but especially in how they intersect/interact with fundamental freedom of speech provisions such as the U.S. first amendment.

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  • In Finland the police can issue a fine. In the UK stalking and harassment has to go on for a period of time for it to be considered as such, but I am not absolutely certain. The UK might have other laws I do not know about. Hopefully someone with more knowledge can clarify and post links with proof to my claims. Jan 14 at 20:11

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I am assuming that you mean a one-time occurrance. So a person is standing somewhere and whistling when another person goes by. They don't follow, they don't touch, they don't say or imply something insulting. As far as I know, there is no specific whistle for anything insulting, and "wow, you look attractive" is not insulting in my book.

That is not illegal.

See also: Are there any legal ramifications for sexual harassment in general?

It might become illegal once you add other behaviours to it. Following someone around. Doing it in their workplace. Doing it to people with special protections, for example minors. Actually saying or implying something insulting or defamatory, like implying the person would grant sexual favors for money. But then, it also is illegal if you add "stabbing the victim with a knife". Adding a crime to something is a crime. In itself, whistling, even sexually loaded, is not illegal.

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Federal law

To assess whether an act is "illegal" at any particular geographical location in the US, one generally needs to consider local, state, and federal law. On a broad understanding of "illegal", one would also have to consider common law torts that might be applicable.

Federal law does not prohibit whistling at someone in the United States, but this fact alone cannot answer the question of whether whistling/catcalling is illegal in every jurisdiction within the US. Providing an answer for every possible location is beyond the scope of this answer. However, barring some obscure Puritan "blue law" from the 1700s, it is unlikely that whistling in and of itself is actually banned anywhere in the US.

Any challenge to the constitutionality of a prohibition would trigger a First Amendment analysis in the courts

The first amendment says in part: "Congress shall make no law ... abridging the freedom of speech...". This has been incorporated to apply against the states via the Fourteenth Amendment.

If it is prohibited by some jurisdiction, it would raise a First Amendment issue, calling for a full analysis of whether the act is speech, exceptions, the level of scrutiny to apply to the prohibition, and then application of that scrutiny to determine whether the prohibition is permissible.

Among other arguments such an analysis might consider, there are two points worth mentioning that are relevant to the specific question of public whistling:

  • Whistling may be considered an elemental form of "speech", although the specific sound of a whistle or catcall is not what the first amendment is intended to protect.

  • The medium of communication is mostly irrelevant, it is the intent and effect that matters most in determining whether the act might be illegal harassment or protected speech.

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    Jan 17 at 0:08

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