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Nudist magazines are not obscene, federal appeals panel says
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.
Attacks on the Nude, the Naked, the Naturist
Civil rights now protect minorities of race, religion, and sex, but there is one minority that government is attacking without regard to civil liberties and Constitutional rights: naturists.
Naturism is the philosophy of living in harmony with nature. This includes an affinity and respect for wildlife and the natural environment, an attempt to live a healthy lifestyle with natural foods, and the acceptance of the human body as naturally good and wholesome, hence a rejection of the culture of lust and shame regarding the nude human body. The latter belief by itself is, of course, nudism, the belief that there is nothing wrong with not wearing clothing, and a lifestyle that includes nudity.
The nudist movement has centered on private nudist clubs and resorts, while the naturist movement has focused on nude beaches, springs, and back yards. Both nudism and naturism have been under increasing attack by the so-called "religious right," and laws are being passed nationwide prohibiting nonsexual nudity even inside one's home.
Civil asset forfeiture, the confiscation of property without trial or conviction, is even being proposed as a weapon against the practice of nudity even in enclosed private property. In Arkansas, it is illegal even to advocate in favor of nudism.
Nudity is a prime example of a possibly offensive but victimless state of being. It is not even an activity or act, since it is not behavior, but simply the absence of clothing. The nude and the naked should therefore be protected by civil rights and liberties, including natural rights, freedom of expression, freedom of religion, freedom of association, and private property rights.
Of course, most folks don't want naked people to walk down the street. But anti-nudity laws extend way beyond this to prohibit nudity in one's property and even inside one's own house, and some places make it illegal to be nude in the company of a child even at home. In some place, breast feeding is treated as a crime. Art depicting nonsexual nudity is banned in some places, and many shops that develop film routinely destroy any film that depicts nudity, and if a child is shown nude, no matter how innocent the context, the shop reports it to the authorities.
Even in a liberal city such as Berkeley, California, the law extends to any nudity in "public view," which includes not only nude use of back-yard hot tubs, but even inside one's house if there is a window through which someone could possibly look. One man in Ohio was arrested because someone across the street using binoculars could see him nude inside his house, and in Florida, a child was taken from a woman who was dancing nude in the presence of her child because one could see her by looking up the closed Venetian blinds.
In Berkeley, a recent trial for public nudity ended in a hung jury. The Berkeley police have since then enforced the anti-nudity law as an infraction, like a traffic ticket. Unlike felony and misdemeanor cases, infractions are fines that cannot be tried by a jury. A court case on April 13 resulted in a dismissal of the charges, because the Berkeley law was enacted as a misdemeanor. The Berkeley City council is now considering whether to change the law to make it an infraction. This would be a bad precedent, since the policy of infractions could be used to stifle any protests and free speech and the freedom of movement and association by fining it without any jury trials.
Nudity has already been used as an excuse for governments and private parties to shut down nudist camps and resorts as a real- estate grab. A private nudist resort in Los Angeles fought the government for years against those trying to grab the property, and in Virginia, a nudist camp was opposed by Madison County and finally shut down. Madison has a totalitarian law making it illegal to do anything the government has not declared legal!
In Tennessee, a law has been proposed allowing a group of ten people to declare skinny dipping a nuisance and have it halted. In Kentucky, nudist clubs and resorts must register with the government, and the government refuses to register them, thus effectively banning nudism. In many states, anti-nudity laws have been passed on the basis of outlawing pornography and commercial nude dancing and performances, but the language of the law has also banned the practice of nudism by families at home or in social naturist clubs.
In Alabama and Florida, bills to apply RICO - Racketeer Influenced and Corrupt Organization - laws have been introduced to eliminate naturism. RICO allows the government to confiscate property that is only indirectly used in an offense. Hence, if you drive a nudist to a nude beach, your car can then be confiscated. Not only that, but people who file complaints against nudists are allowed to win penalties of up to $40,000 upon conviction. With this bounty, zealous anti-nudists and those who are just greedy can get rich seeking out skinny-dippers.
In California, another weapon in the war against nudity is being considered. The California Senate is considering SB 1859, a "local option" law that would let local governments determine their own "community standards," replacing the current state-wide standard. Naturist and nudist publications depicting nudity in a non-sexual context, or even a photo of one's naked baby in a bathtub, could be classified as obscene by the local standard. Electronic communications and web sites showing non-sexual nudity, such as people at a nude beach, would become criminal in that locality.
Such laws are being pushed and passed throughout the United States because most folks are not nudists or naturists, and think it does not affect them. But these laws are not only unjust to nudists and naturists, but set terrible precedents against free expression and private property rights. Anti-nudity legislation is a foot in the door to the suppression of all our rights and liberties.
Other campuses: Bill proposed to outlaw nudist youth camps
(U-WIRE) AUSTIN, Texas - Nudist Texan youth will have a long way to travel for summer camp if a recently filed bill is passed.
The bill's author, State Rep. Bryan Hughes (R-Mineola) said he wants nudist youth camps outlawed in Texas, although he isn't aware of any currently operating.
Hughes decided to write the bill because he heard the American Association for Nude Recreation was planning to expand into the state in 2005. He said he opposes the camps because they allow nude children to be unsupervised by their parents.
"It's a real dangerous situation," he said.
Hughes called the camps "magnets for pedophiles," and said he is concerned about youths' own abilities to behave responsibly in a nude environment.
Edward Moss, owner and manager of Bluebonnet, a nudist resort in Alvord, Texas, said, "The whole idea behind the nudist parks in this country is to promote family unity."
While the membership at his resort consists mostly of couples, he said there are some families with children.
Moss attribute the recent bill to ignorance on the part of legislators.
"The critics assume if there's nudity, it's a nasty thing, an immoral thing and should be banned," Moss said. "It's not for everybody, but we should be free to raise kids as we see fit."
The American Association of Nude Recreation now operates three youth camps nationwide, according to the Rev. JoAnne "Elf" Pessagno, marketing director at Lake Como Family Nudist Resort in Lutz, Fla.
The camp at Lake Como is the oldest of the three, founded by Judy Grisham in 1992. The yearly camp runs for one week in June, during which supervised campers participate in such activities as volleyball, mini-golf, "capture the flag" and campfire sing-a-longs. Pessagno, who worked at last year's camp, described one game called "pudding toss."
"Before you know it, everyone is covered in pudding, and then they jump in the lake and rinse off," she said.
The camp culminates in a spaghetti dinner and a "Sunny and Bare"
talent show for parents.
Court's Magazine Ruling Has Positive Impact for Naturists
three judge panel
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.
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
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.
The Alessandra's Smile opinion governs federal judges in Pennsylvania, Delaware, New Jersey and the U.S. Virgin Islands.
U.S Supreme Court Opts Not
to Hear Naturists' Appeal in Hippie Hollow
I don't mention these things as a way of
polarizing naturists from law enforcement or the legal system. Nor do I bring
them up in an attempt to gain sympathy or to mitigate our losses in the judicial
system. Rather, I hope these facts will bring home to naturists the point that
we are truly in a battle for our rights! In the face of such opposition, we
allocate relatively tiny amounts of money to the defense of naturism.
But what happens now? Well, the Supreme Court
let the county's rule stand, so the ban on families with children at Hippie
Hollow persists. Ken Oden himself once shared with me his further plan.
He intended to characterize the clothing-optional park as an adults-only
enterprise by eliminating children.
Oden was not
kidding. The county attorney, who still has aspirations of one day being
appointed a federal judge, has apparently achieved the first of his goals.