Court's Magazine Ruling Has Positive Impact for Naturists

U.S. Circuit Court's Decision Recognizes Naturist Publications as a Protected Tool for Political Change

         by Bob Morton,  NAC Chairman

         A three judge panel of the U.S. Third Circuit Court ruled on October 23, 2000, that hundreds of seized magazines containing nude photographs are not obscene. The ruling overturned a determination by a U.S. District Court Judge that the magazines violated a federal law that forbids the import of obscene materials.

In rendering its opinion, the court went beyond the return of the confiscated magazines. It declared that the magazines deserved First Amendment protection because of their "political value."

The ruling of the judicial panel involved Alessandra's Smile, a New Jersey distributor and importer of the two magazine titles that made up the shipment seized by government inspectors. Jeunes et Naturels is a French language photo-periodical printed in the United Kingdom, and Jung und Frei is a UK-printed pictorial magazine for which the sparse text is printed in German. As perhaps may be guessed from their titles (Young and Natural and Young and Free), the two magazines are predominantly filled with pictures of youngsters, almost all of whom are nude. Even a cursory check of promotional material associated with Alessandra's Smile leaves little question of the target audience for Jeunes et Naturels and Jung und Frei.

[For a naturist's critical review of these two magazines and related matters, see the 1997 article "A Great Disservice" by Mark A. Nisbet, reprinted from Nude & Natural magazine, issue 16.4.]

Nevertheless, the Third Circuit panel considered each magazine based strictly on its own content and not on the motives of its distributor or its putative readership. In doing so, the Court was limited to assessing only whether the magazines were obscene. The government prosecutors had not charged that the publications were child pornography.

To determine obscenity, the court applied the "Miller Test", a standard developed from the U.S. Supreme Court's 1973 Miller v. California case. Under Miller, a work is considered obscene if all three of the following criteria are met:

    (a) "the average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest;

    (b) the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and

    (c) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Composing the opinion of the judicial panel in the Alessandra's Smile case was U.S. Circuit Court Judge Leonard I. Garth. Joining him in the opinion were U.S. Circuit Court Judges Sloviter and Scirica. On behalf of the panel, Garth wrote, "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 opinion addressed and then dismissed the matter of the intended audience for the magazines.

"Whether the magazines are targeted to minors or adults," Judge Garth wrote, " to the extent that the photographs are of children, they are primarily focused on children's activities, not on the children's bodies. Children are shown swimming, boating, exercising, playing with beach balls, having picnics, swinging on jungle gyms, building sand castles, riding bicycles, playing guitar, riding horses, and playing such sports as tennis, volleyball, miniature golf, and baseball."

The opinion noted that "the photographs in the magazines show people involved in a variety of outdoor activities, all of which are natural and expected for healthy and active children, teenagers, and adults. The only unusual aspect of the photographs is that almost all of the subjects are nude."

Judge Garth compared the contents of Jeunes et Naturels and Jung und Frei to those of Naturally magazine, a naturist magazine offered for comparison by attorneys for Allesandra's Smile, in part because it is published in New Jersey.

     Having determined that the material was not obscene under at least one prong of the three-pronged Miller test, the Circuit Court could have reversed the District Court's decision and stopped there. However, because the judicial panel realized that its decision would have First Amendment implications, it completed its analysis of the other two prongs.

The Circuit Court examined the photographs in the seized magazines for any depiction of "a lewd exhibition of genitals," which would constitute "sexual conduct" as defined by the Supreme Court in Miller and by the New Jersey legislature. The Court noted that the publications contained " many photographs of nude women and girls, and several of these photographs show the subjects' pubic areas." However, the Court correctly discerned that "none of the photographs of females, no matter their age, show their genitalia."

Male genitalia are of course more visible, but even in the photographs of men and boy, the Court declared that "[t]he fact that their genitals are visible is incidental to their being nude." The opinion said that genitals exposed in pictures of mere nudity "are neither being 'exhibited' nor 'shown off.'"

     The third prong of the Miller Test has to do with the literary, artistic, political, or scientific value of the material. Alessandra's Smile had argued on appeal that the magazines have such value because "[i]n places w[h]ere legislatures or governments may wish to curtail social public nudity on designated beaches, photographs provide the best 'case' that the nudism and naturism consist of normal activities engaged in by normal people."

The Third Circuit Court panel agreed.

"These magazines," Judge Garth wrote, "qualify for First Amendment protection because of their political value. The term 'political' which we employ here is broad enough to encompass that which might tend to bring about 'political and social changes.' Nudists are members of an alternative community, and the magazines champion nudists' alternative lifestyle, which lifestyle the nudist community may feel is in danger of being curtailed by government regulation."

     The importance of this decision must not be understated. A panel of the U.S. Third Circuit Court has affirmed the political value and protected status of publications that include photographs of nude adults, teenagers and children. In addition to reaffirming that nude is not lewd, the decision specifically underscored the constitutional legitimacy of our effort to prevent the mischaracterization and subsequent prohibition of our lifestyle and recreational choices.

         An example: Whether or not the Third Circuit Judges knew of a recent legislative effort in Nebraska, their decision speaks directly to it. In 1998 and again in 1999, the Nebraska legislature was asked to consider a bill that would have made criminals of those possessing a "compilation" of more than just a few images of nude children. (In 1998 that number was three; in 1999 the number was five.) NAC played an important role in the defeat of the Nebraska legislation, but the efforts of those opposed to the bill would certainly have benefited from the Third Circuit Court's ruling in the Alessandra's Smile case. For additional information, see NAC Success Story: Nebraska LB 837

The Alessandra's Smile opinion governs federal judges in Pennsylvania, Delaware, New Jersey and the U.S. Virgin Islands.

Read the Judicial Panel's Complete Opinion

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