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In a ground-breaking opinion, the 3rd U.S. Circuit Court of Appeals has ruled that 264 nudist magazines from Europe that were seized by U.S. Customs officials because they contained depictions of children and teenagers are not “obscene” or “lewd” since they showed nothing more than a nudist lifestyle. “In our opinion, even a most conservative, straight-laced, and puritanical viewer of the photographs could not responsibly claim that the photographs are ‘lewd’ or that they give the impression that the subjects are ‘sexually unchaste or licentious,’ ” Senior U.S. Circuit Judge Leonard I. Garth wrote. Significantly, the unanimous three-judge panel also found that the magazines all qualified as protected “political” speech. Lawyers for the New York store that had imported the magazines from France and Germany argued that they had political value because “in places where 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.” Garth, in an opinion joined by U.S. Circuit Judges Dolores K. Sloviter and Anthony J. Scirica, agreed, saying, “These magazines 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.’ “ Garth found that nudists are “members of an alternative community” and that the magazines “champion nudists’ alternative lifestyle, which lifestyle the nudist community may feel is in danger of being curtailed by government regulation.” Although the political value of such magazines is not as “immediately evident” as it is for other nudist magazines that contain articles about the legal status of public nudity around the world and actively advocate for unregulated nudism, Garth nonetheless found that “publications dedicated to presenting a visual depiction of an alternative lifestyle, a depiction with a decidedly Utopian flavor, have political value similar to the political value of articles criticizing government regulation of that and other lifestyles.” The ruling in U.S. v. Various Articles of Merchandise overturns a decision by U.S. District Judge Joseph A. Greenaway of the District of New Jersey who found that each of the magazines was obscene under the U.S. Supreme Court’s seminal 1973 decision in Miller v. California that established a three-prong test for obscenity. Under Miller, a work is considered obscene if it meets all three prongs of the test that ask: � Whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest. � Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law. � Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value. Garth found that the Miller test requires appellate courts to “review the record independently to ensure that the determination does not violate the First Amendment.” Although the Supreme Court has never clearly stated the appellate standard of review, Garth found that later cases teach that the first prong of the Miller test is “a particularly factual inquiry” that does not, on its own, implicate the First Amendment. As a result, he said, the appellate court should review the lower court’s findings under the first prong “for clear error,” but exercise plenary review over its legal conclusions. For the second and third prongs, however, Garth found that the entire review was plenary. Garth found that Judge Greenaway erred in the beginning of his Miller analysis by looking to cases that dealt with child pornography. Greenaway found that the magazines all contained numerous photographs of nude children and juveniles, and concluded that “this fact materially affects the manner in which the Miller test is applied.” Citing the 3rd Circuit’s 1994 decision in United States v. Knox, Greenaway found that the Miller test is “relaxed” when pornographic material portrays minors, since the government’s interest in safeguarding the physical and psychological well-being of a minor is compelling.” Although the government was pursuing forfeiture of the nudist materials on obscenity — rather than child pornography — grounds, Greenaway found that “its ultimate purpose is no less compelling.” But Garth said Greenaway “erred in interpreting Knox to mean that the Miller standard could be relaxed in cases such as the present case, where the magazines were seized under 19 U.S.C. Section 1305. That statute provides for seizure of obscene materials, not seizure of child pornography.” Instead, Garth said, the case “must be analyzed under the Miller test and not under a Knox child pornography standard” because the prosecutors chose to file the case as an obscenity case. Garth also faulted Greenaway for relying on the fact that the magazines appeared to be marketed solely to adults since they carried warning labels. “Even if it were true that the magazines were produced and published for adult consumption, that fact does not dictate that they appeal to the prurient interest,” Garth wrote. Garth found that the photographs of the nude children “primarily focused on children’s activities, not on the children’s bodies.” Children from around the world — Canada, Hawaii, Brazil, France, Denmark, Hungary, the Czech Republic, Russia and Australia — 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 tennis, volleyball, miniature golf and baseball, he noted. “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.” After viewing the pictures themselves, Garth said the appellate panel was “indeed left with ‘a definite and firm conviction’ that the District Court erred in finding that the magazines were obscene under part (a) of the Miller test.” Although that ruling was enough to overturn Greenaway’s decision, Garth said the panel decided to address the lower court’s findings on the second two prongs of the Miller test “because of the nature of the subject matter on appeal and the fact that our decision has First Amendment implications, as well as the possibility that subsequent publications may be received in the United States and seized by the government as obscene.” Turning to the second prong, Garth said the Supreme Court has held that obscene materials must “depict or describe patently offensive ‘hardcore’ sexual conduct.” Greenaway concluded that the photographs depicted “a lewd exhibition of the genitals,” which is “sexual conduct” under Miller and that the depiction was “patently offensive to the contemporary community standards of this district.” But Garth turned to the dictionary for definitions of “lewd” and “exhibition” and found that none of the photographs failed the Miller test. “Many of the photographs in the magazines do not depict genitalia at all. There are many photographs of nude women and girls, and several of these photographs show the subjects’ pubic areas, but none of the photographs of females, no matter their age, show their genitalia,” Garth wrote. Several of the photographs of boys do show their genitals, Garth noted, but “they are neither being ‘exhibited’ nor ‘shown off.’ “ Instead, Garth found, “the fact that their genitals are visible is incidental to their being nude, but it is not the focal point of any of the photographs.” Garth found that none of the photographs were “suggestive of moral looseness,” but instead that “all of the photographs are of smiling, happy and playful subjects, and none can be deemed lewd by any standard.” There was also none that showed “patently offensive ‘hardcore’ sexual conduct,” Garth found. Instead, he said, they all “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, Garth said, is that almost all of the subjects are nude. But the Supreme Court has squarely held that “nudity alone” is not enough to make materials obscene. The case began in March 1998 when officials at the U.S. Customs international mail facility in Jersey City, N.J., discovered a shipment of two large boxes addressed to Alessandra’s Smile, a business in New York City. When the packages were opened, officials found 264 magazines, all entitled either Jeunes et Naturels or Jung und Frei, French and German publications devoted to nudists’ lifestyles. Special Assistant U.S. Attorney Steven L. D’Alessandro of the United States Attorney’s Office for the District of New Jersey examined the magazines and determined that all 264 magazines were obscene. Alessandra’s Smile was represented on appeal by attorney Eugene B. Nathanson of New York. D’Alessandro argued the case for the government and was joined on the brief by U.S. Attorney Robert J. Cleary.

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