Nudism Magazines Deemed Not Obscene The Decision By A Federal Appeals Court Reverses A Ruling On The Seizure Of Two European Publications.

Posted: October 24, 2000

Reflecting on the thorny legal question of what is obscene, a federal appeals court yesterday invalidated a government seizure of 264 photo magazines documenting the nudism lifestyle in France and Germany.

The three-judge panel of the U.S. Court of Appeals for the Third Circuit unanimously reversed December's decision by a federal judge in New Jersey, who concluded the magazines Jeunes et Naturels and Jung und Frei violated federal law against importing obscene materials.

U.S. Circuit Judge Leonard I. Garth wrote that the magazines deserved First Amendment protection because of their "political value" championing "nudists' alternative lifestyle."

"Even a most conservative, straitlaced 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,' " Garth wrote.

The judge added that all of the photos portray 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 is that almost all of the subjects are nude."

Garth wrote that the European magazines were similar to Naturally, a nudist magazine published in New Jersey.

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

In reversing U.S. District Judge Joseph A. Greenaway, the court ordered the magazines returned to New York City importer Alessandra's Smile.

The U.S. Supreme Court's 1973 guidelines for evaluating allegedly obscene material require judges to determine if the materials offend local "contemporary community standards" and "lack serious literary, artistic, political or scientific value."

Because of the strict legal standard of review, many recent official moves against pornography have involved photos of nude children. The Supreme Court in 1994 relaxed the standards for evaluating "kiddie porn," reasoning that the government has a "compelling interest" in "safeguarding the physical and psychological well-being of a minor."

But the appeals panel noted that the U.S. Customs Service seized the 264 magazines in Jersey City, N.J., in 1998 under the older, tougher general obscenity statute, not the child-pornography law.

Garth, who did not address the kiddie-porn law, wrote that the nudist magazines "primarily focused on children's activities, not only the children's bodies."

"We are of the firm conviction that the District Court clearly erred because [the magazines] contain photographs of nudist children around the world engaged in activities typical of children."

Joseph A. Slobodzian's e-mail address is jslobodzian@phillynews.com

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