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Nudist magazine not obscene because of political focus

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  1. Prior Restraint

    NMU         THIRD CIRCUIT         Prior Restraints         Oct 27, 2000    

Nudist magazine not obscene because of political focus

  • A federal appellate court ruled that a nudist magazine was not obscene merely because it contained nude pictures of children.

The U.S. Court of Appeals in Philadelphia (3rd Cir.) ruled that a nudist magazine that contained pictures of unclothed children was not obscene, nor did it appeal to a “prurient interest” merely because the children were nude.

The magazines at issue were imported from France and Germany and were devoted to nudist lifestyle issues. The magazine contained numerous photos of nude people, including adults as well as nude teenagers and children.

A federal prosecutor seized the magazines after they were discovered by a customs inspector. The government then filed a complaint claiming that the magazines were obscene and subject to seizure. The recipient of the magazine in the U.S., a company by the name of Alessandra’s Smile, asked the court to return the magazines.

The trial court ruled that the magazines met the legal definition of obscene, and the publisher appealed.

The Third Circuit ruled that the magazines were not obscene because the photos did not appeal to a prurient interest and because the magazine had political value.

First, the court rejected the contention by the government that the magazine constituted child pornography. The court said since the government did not originally prosecute for a violation of child pornography laws, the case had to be decided based on the test for general obscenity.

The appeals court then decided that the photos of nude children did not appeal to a prurient interest because the images focused on children engaged in normal childhood activities, such as swimming, playing, riding bicycles, building sand castles and other recreational activities. The focal point of the photos, according to the court, was the activities, not the childrens’ bodies. The court further noted that, although genitalia of boys was visible in some of the photos, none of the photos focused on genitalia or sexual activity or even sexual innuendo. The court concluded that “nudity alone is not enough to make material legally obscene,” and the government had relied solely on the nudity in arguing its case for obscenity.

The appeals court also noted that the obscenity test examines any literary, artistic, political or scientific value of the subject matter. The court held that the magazines had political value, meaning that it may influence political or social change. In its finding of political value, the court stated, “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 court added that the magazine “contains articles about the legal status of public nudity around the world and actively advocates for unregulated nudism.”

(U.S. v. Various Articles of Merchandise; Attorney: Eugene Nathanson, New York, N.Y.) AG

© 2000 The Reporters Committee for Freedom of the Press

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