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Nudist magazines are not obscene, federal appeals panel says

By David Hudson
The Freedom Forum Online


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Federal officials must return 264 nudist magazines that they had seized under federal obscenity laws because the magazines clearly do not meet the legal definition of obscenity, a federal appeals court panel has ruled.

In March 1998, customs officials in Jersey City, N.J., inspected a shipment of two large boxes to book distributor Alessandra's Smile Inc. Officials discovered the boxes contained French and German nudist magazines.

The magazines contained numerous photos of nude persons, including male and female minors, in naturalistic settings.

The U.S. Attorney's Office in New Jersey determined the magazines were obscene and instituted seizure-and-forfeiture proceedings to take possession of the materials.

In March 1999, Alessandra's Smile filed a motion seeking return of the property. In December 1999, U.S. District Judge Joseph A. Greenaway determined the materials were legally obscene and could properly be seized by government officials.

On appeal, a three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously reversed in United States v. Various Articles of Merchandise, Schedule No. 287.

As had the district judge, the 3rd Circuit panel examined the materials under the test for obscenity articulated by the U.S. Supreme Court in its 1973 decision Miller v. California. Under the Miller test, material is obscene if:

An average person, applying contemporary community standards, finds that the work, taken as a whole, appeals to a prurient interest — defined as a shameful or morbid interest in sex.

An average person, applying contemporary community standards, finds that the material depicts or describes, in a patently offensive way, sexual conduct specifically defined by state law.

The material, taken as a whole, lacks serious literary, artistic, political or scientific value.

"We are of the firm conviction that the District Court clearly erred in finding that these magazines appeal to the prurient interest because they contain photographs of nudist children around the world engaged in activities typical of children," the 3rd Circuit panel wrote in its Oct. 23 opinion.

The panel also determined that the lower court erred in determining that the pictures in the magazines were patently offensive or lewd.

"Moreover, in our opinion, even a most conservative, straight-laced, and puritanical viewer of the photographs could not reasonably claim that the photographs are 'lewd' or that they give the impression that the subjects are 'sexually unchaste or licentious,' " the panel wrote. "All of the photographs are of smiling, happy and playful subjects, and none can be deemed lewd by any standard."

The panel noted that the seized materials were not as sexually provocative as the images in David Hamilton's photography book Age of Innocence, which the government had not claimed was obscene.

The panel wrote that "the tone and situation of the photographs in the (naturalist) instant magazines are entirely non-sexual, and the photographs contain none of the sexually provocative elements that are present in Hamilton's photographs."

The 3rd Circuit panel also determined that the magazines qualified "for First Amendment protection because of their political value."

The magazines are political, the panel said, because they represent the nudists' alternative lifestyle and their desire to bring about "political and social change."

The panel ordered the government officials "to take all necessary steps to restore the seized magazines" to Alessandra's Smile.

Eugene Nathanson, attorney for the book distributor, said: "I am pleased that the 3rd Circuit judges were more offended by the government officials seizing the materials than by the content of the materials. Hopefully, after this decision, at least in the 3rd Circuit, government officials will be less rabid about seizing materials that they think might somehow qualify as child pornography or obscenity."

Calls to the U.S. attorney's office in New Jersey were not returned.