US Court of Appeals rulings on Naturist Photos

[natman]

US Court of Appeals rulings on Naturist Photos

The attached decision of the United States Court of Appeals regarding naturist photos is the law of the United States. This is a very interesting court decision as the US Customs had confiscated several hundred naturist magazines from Germany and France as being pornographic. The defendants sued and lost in the lower court. They appealed. The US Court of Appeals overturned every paragraph of the lower court's decision. They found that family naturism was a legitimate alternative life style and protected by the Constitution of the United States.

On October 23, 2000 The United States Court of Appeals for the Third Circuit made what was probably the clearest statement of US law regarding naturist pictures. US customs had seized naturist magazines brought in from Germany and France which depicted many photos of families, including children and teens. This decision was not appealed by the government to the Supreme Court. Therefore it stands as the proper interpretation of the law.

The US customs officer and the government had contended that the magazines were “obscene” as that term is defined by US Law. The lower court affirmed the actions of the US Customs. However on appeal the Court stated:

(All of the following statements are excerpted from the decision. The full decision is attached in PDF format)

We hold otherwise and, therefore, reverse.

All of the magazines contain numerous photographs of nude persons, including adult males and females as well as nude minors and nude teenagers.

In this case, each of the two hundred sixty-four Magazines at issue contains numerous photographs of nude children and juveniles. …

Whether the magazines are targeted to minors or adults, 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 magazines depict nudist children in various geographical locations, such as Canada, Hawaii, Brazil, France, Denmark, Hungary, the Czech Republic, Russia, and Australia. 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 trier of fact should look to the following factors, among any others that may be relevant in the particular case:

1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;

2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;

3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;

4) whether the child is fully or partially clothed, or nude;

5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;

6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.

Initially, we must point out that 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. Several of the photographs of boys, on the other hand, do show their genitals. However, though one can see boys' genitals in some of the photographs, they are neither being "exhibited" nor "shown off." 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.

(Comment: the Courts of New York had earlier found that the pubic area of a female isn't the genetelia and the female genetelia in inside)

Moreover, 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." It is true that the subjects in some of the photographs are posed for the camera, but they are not posed in a way "suggestive of moral looseness." All of the photographs are of smiling, happy, and playful subjects, and none can be deemed lewd by any standard. The magazines just do not depict "lewd exhibition[s] of the genitals."

Our holding that the magazines do not depict patently offensive sexual conduct is reinforced by a comparison of the photographs in the seized magazines to the photographs by David Hamilton which appear in his volume, Age of Innocence and to the photographs which appear in Radiant Identities, Photographs by Jock Sturges. The Government does not claim that either Age of Innocence or Radiant Identities is obscene. Indeed, the parties stipulated that those volumes are regularly available for purchase at bookstores in New Jersey.

... By contrast, the tone and situation of the photographs in the instant magazines are entirely non-sexual, and the photographs contain none of the sexually provocative elements that are present in Hamilton's photographs. None of the subjects are on beds or undressing or touching their bodies in a sexual way. The magazines instead consist of brightly colored photographs of nude children, teenagers, or adults playing or smiling and posing for the camera.

Accordingly, the photographs in the magazines can neither be said to be depictions of lewd exhibitions of the genitals or to be patently offensive in any other way. The District Court erred in so holding.

(The Court then stated)... , photographs provide the best `case' that the nudism and naturism consist of normal activities engaged in by normal people." (Appellant's Brief, at 51.) We agree.

The Supreme Court explained:

The First Amendment protects works which, taken as a whole, have serious literary, artistic, political, or scientific value, regardless of whether the government or a majority of the people approve of the ideas these works represent. "The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."

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."

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. It is true that the political value of these magazines is not as immediately evident as the political value of Naturally, which contains articles about the legal status of public nudity around the world and actively advocates for unregulated nudism. However, 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.

For FULL TEXT SEE: http://www.freelawreporter.org/flr3d/f3 ... -5124.html

[Bare_Truth]

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. It is true that the political value of these magazines is not as immediately evident as the political value of Naturally, which contains articles about the legal status of public nudity around the world and actively advocates for unregulated nudism. However, 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.

emphasis added
I found this particular part interesting because that has been my intention of embedding captions and titling in certain of my wallpaper naturist photo montages. The wording sets the author's (my) intent for the interpretation of the images. Sometimes it is biblical verses sometimes it is quotes, etc. One of my favorite montages is one showing multiple applications of nude mothers tending their nude children at play and bears the phrase.

How much would we know of tender mercies, save what we learned at our mother's hand?

It would take a sick mind indeed to interpret the nurturent images of gentle protective depicted actions of the mothers as sexual exploitation. Which just goes to show that sometimes a picture is not enough for some crusading prudes, you just have to spell it out for them. LITERALLY !

I though it highly perceptive of the judge to recognize that it is indeed political speech albeit in an artistic form rather than words, but that the presence of such words, sets the venue.