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Offline Waytwofast

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United States of America v. Various Articles of Merchandise (2000)
No. 00-5124 (U.S. Court of Appeals for the 3rd Circuit)

The Facts of the case are these: “On March 25, 1998, at the Customs international Mail Facility in Jersey City, New Jersey, United States Customs Inspector discovered a shipment of two large boxes addressed to Alessandra’s Smile… The Customs Inspector opened the packages and examined the contents. The contents of the boxes included, inter alia, 264 magazines, all entitled either Jeunes et Naturels or Jung und Frei (the ‘magazines’). The magazines, which are either in French or German, are devoted to nudists’ lifestyles. All of the magazines contain numerous photographs of nude persons, including adult males and females as well as nude minors and nude teenagers… A Special Assistant United States Attorney of the United States Attorney’s Office for the District of New Jersey examined the magazines and determined that all 264 were obscene. The magazines were then seized pursuant to 19 U.S.C § 1305. Appellant Alessandra’s Smile, Inc… [filed a] claim for the return of its property. On February 23, 1999, the parties stipulated to all the relevant facts but, without waiving their rights to appeal, left open for ultimate determination whether the seized materials were obscene. They also consented to the District Court entering a judgment without a hearing after the District Court had ruled. The parties agreed that the following books are regularly available for purchase within the jurisdiction of the United States District Court for the District of New Jersey… The District Court entered an Order on December 30, 1999 stating that ‘the materials subject to the claim of Alessandra are obscene and were imported in violation [of federal law] and shall be forfeited to the Government and destroyed…” Appellant Alessandra Smile, filed a timely appeal and the case now moves to the Court of Appeals.

The Main Issues in this case is this: 1. Was the District Court in error for determining these materials to be obscene? 2. Are these materials not-obscene, and therefore protected by the First Amendment?

The Holding in this case was that: 1. The District Court was in error in its judgment that these materials were obscene. 2. These materials were determined to not be obscene, and are therefore protected by the First Amendment to the Constitution of the United States.

Circuit Court Judge Garth, wrote for the Majority in this case: “Under Miller, ‘the basic guidelines for the trier of fact’ to determine whether a work is obscene and, therefore subject to state regulation, are as follows: (a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offense way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. (Miller v. California)’ We agree with the Second Circuit that all three prongs of the Miller test must be satisfied for a work to be found to be obscene…’ (U.S. v. Various Articles of Obscene Merchandise, 1983) As a preliminary matter and to dispose of an issue which, in the context of this appeal, we hold to be irrelevant, we turn first to the District Court’s conception that the depiction of minors in the magazines affects the manner in which the Miller test is to be applied… The District Court stated: ‘In this case, each of the two hundred sixty-four Magazines at issue contain numerous photographs of nude children and juveniles. This fact materially affects the manner in which the Miller test is applied. Indeed as noted by the Third Circuit in United States v. Knox, the Supreme Court relaxes the Miller obscenity test 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 is pursuing forfeiture of these materials on that basis that they are obscene, rather than child pornography, its ultimate purpose is no less compelling… Part (a) of the Miller test asks whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest. The District Court answered this question in the affirmative… The District Court apparently believed that the magazines were intended for adults who desired to look at the photographs of nude children for their own ‘prurient interests…’ 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… 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…’ We earlier called attention to our adherence to the requirement that all three prongs of the Miller test must be met before a work may be held obscene… Having now determined that the District Court erroneously found, under part (a) of the Miller standard, that the magazine appealed to the prurient interest, we could stop at this point and reverse the District Court’s order in favor of the Government. However, 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, we will complete our analysis under Miller… The District Court concluded that the photographs found in the seized magazines depict ‘a lewd exhibition of genitals,’ which is ‘sexual conduct’ as defined by the Supreme Court in Miller and by Community standards of the district…’ The magazines just do not depict ‘lewd exhibition of the genitals…’ As such, the magazines fall far outside the zone of ‘hardcore sexual conduct’ that may constitutionally be found ‘patently offensive…’ The final prong of the Miller test is whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value… Alessandra’s Smile argues on appeal that the magazines do have 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. We Agree… The First Amendment protects works which, taken as a whole, have serious literary, artistic, political or scientific values, regardless of whether the Government of a majority of the people approve of the ideas these works represent. ‘The protection given speech and press 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… Having held that the seized magazines are not obscene when tested by the Miller three-pronged standard, we will reverse the District Court’s order of December 30, 1999 and direct the District Court to enter judgment for Alessandra’s Smile and to take all necessary steps to restore seized magazines to Alessandra’s Smile.”
There no Dissenting Opinions in this case…

The Significance of this case: should please us all, because of this decision by three judges, we have the right to own such books as “A World Without Clothes” and other Nudism DVDs, as well as the taking of photographs of children in the bath tub, as I believe most of our parents have done to us, and have threatened to show our future spouses… or maybe that was just my mom.

Fiat Justitia et Pereat Mundus
(Do What's Right, Come What May)