United States v. Various Articles

Opinions of the United

2000 Decisions States Court of Appeals

for the Third Circuit

10-23-2000

United States v. Various Articles

Precedential or Non-Precedential:

Docket 00-5124

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Filed October 23, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-5124

UNITED STATES OF AMERICA

v.

VARIOUS ARTICLES OF MERCHANDISE,

SCHEDULE NO. 287

ALESSANDRA'S SMILE, INC.,

Appellant

Pursuant to Rule 12a

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civ. No. 98-01559)

District Judge: Honorable Joseph A. Greenaway

Argued: Friday, September 22, 2000

BEFORE: SLOVITER, SCIRICA

and GARTH, Circuit Judges

(Opinion Filed: October 23, 2000)

Eugene B. Nathanson (Argued)

305 Broadway, Suite 200

New York, New York 10007

Counsel for Appellant

Robert J. Cleary

United States Attorney

Steven D'Alessandro (Argued)

Special Assistant U.S. Attorney

Office of the United States Attorney

970 Broad Street, Room 700

Newark, New Jersey 07102

Counsel for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal concerns 264 nudist magazines that were

imported to the United States from France and Germany.

The issue on appeal is whether those magazines are

obscene and are therefore subject to seizure and forfeiture

under 19 U.S.C. S 1305. The District Court found that the

magazines were obscene and ordered their forfeiture. We

hold otherwise and, therefore, reverse.

I.

On March 25, 1998, at the Customs international Mail

Facility in Jersey City, New Jersey, United States Customs

Inspector Robert Maloney ("Inspector Maloney") discovered

a shipment of two large boxes addressed to Alessandra's

Smile, 625 Broadway 7D, New York, New York, 10012.

Inspector Maloney opened the packages and examined their

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.

Subsequent to Inspector Maloney's discovery, Special

Assistant United States 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

2

264 magazines were obscene. The magazines were then

seized pursuant to 19 U.S.C. S 1305(a), which prohibits

importation into the United States from a foreign country of

"any obscene book, pamphlet, paper, writing,

advertisement, circular, print, picture, drawing,[etc.]" and

subjects such articles to seizure and forfeiture.

The Government filed a Verified Complaint in the United

States District Court for the District of New Jersey on April

7, 1998, alleging that the content of the magazines is

obscene and that, therefore, the magazines are subject to

seizure and forfeiture under 19 U.S.C. S 1305. Appellant

Alessandra's Smile, Inc. ("Alessandra's Smile") filed a

Verified Answer with the Clerk of the Court on March 17,

1999 and 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: David Hamilton, The Age of

Innocence; David Hamilton, Twenty-Five Years of an Artist;

and Radiant Identities, Photographs by Jock Sturges. In

addition, it is undisputed that Naturally Nude Recreation

Magazine ("Naturally"), published by Naturally Nude

Recreation, located in Newfoundland, New Jersey, is

distributed 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

19 U.S.C. S 1305 and shall be forfeited to the Government

and destroyed." The District Court issued an Opinion

supplementing the Order on February 22, 2000, in which

the District Court discussed each prong of the obscenity

test announced in Miller v. California, 413 U.S. 15 (1973),

and determined that the magazines met all three prongs of

the test. Alessandra's Smile filed a timely Notice of Appeal

on February 24, 2000.

3

II.

Under Miller, "[t]he 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 offensive

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, 413 U.S. 15, 24 (1973) (internal

citations omitted). We agree with the Second Circuit that all

three prongs of the Miller test must be satisfied for a work

to be found obscene. See United States v. Various Articles of

Obscene Merchandise, Schedule No. 2102, 709 F.2d 132,

135 (2d Cir. 1983).

The first question we must answer is, what is our

standard of review of the District Court's order?

In Bose Corporation v. Consumers Union of United States,

Inc., the Supreme Court stated that "in cases raising First

Amendment issues we have repeatedly held that an

appellate court has an obligation to `make an independent

examination of the whole record' in order to make sure that

`the judgment does not constitute a forbidden intrusion on

the field of free expression.' " 466 U.S. 485, 499 (1984).

Therefore, though Rule 52(a) of the Federal Rules of Civil

Procedure and, indeed, the Supreme Court and our own

jurisprudence, see, e.g., Pullman-Standard v. Swint, 456

U.S. 273, 287 (1982); Levendos v. Stern Entertainment, Inc.,

909 F.2d 747, 749 (3d Cir. 1990), instruct that a District

Court's findings of fact "shall not be set aside unless clearly

erroneous," Fed.R.Civ.P. 52(a), "[i]n[obscenity] cases, the

Court has regularly conducted an independent review of the

record both to be sure that the speech in question actually

falls within the unprotected category and to confine the

perimeters of any unprotected category within acceptably

narrow limits in an effort to ensure that protected

4

expression will not be inhibited." Bose Corp. , 466 U.S. at

505.

In other words, when the fact finder, judge or jury,

applies the Miller guidelines and determines that material is

obscene, the appellate court must review the record

independently to ensure that the determination does not

violate the First Amendment. In conducting its independent

review of a fact finder's determination of obscenity, an

appellate court may not reverse the determination because

it might have decided the case differently, as long as the

determination of obscenity does not violate the First

Amendment. As the Court observed in Miller,"[t]he mere

fact juries may reach different conclusions as to the same

material does not mean that constitutional rights are

abridged." 413 U.S. 15, 26 n.9 (1973). Therefore, we are

obliged to review independently the record to determine

whether the District Court curtailed protected speech in its

determination that the magazines were obscene.1

As we have stated, Bose Corp. established that appellate

courts must conduct independent review of fact finders'

determinations of obscenity to evaluate whether the

determinations violate the First Amendment. However, the

Court has not made clear precisely how this independent

review applies to the three prongs of the Miller test. In

Miller, the Court characterized parts (a) and (b) of the test

as "essentially questions of fact." 413 U.S. at 30. However,

in Jenkins v. Georgia, the Supreme Court read Miller to

hold that part (b) of the Miller formula is nevertheless

subject to independent appellate review. The Court noted,

"[e]ven though questions of appeal to the`prurient interest'

or of patent offensiveness are `essentially questions of fact,'

it would be a serious misreading of Miller to conclude that

juries have unbridled discretion in determining what is

`patently offensive.' " 418 U.S. 153, 160 (1974). Indeed, in

Jenkins, the Court, in its review, overturned the jury's

determination that the film "Carnal Knowledge" was

_________________________________________________________________

1. "[O]bscene material is unprotected by the First Amendment." Miller,

413 U.S. at 23 (citing Kois v. Wisconsin, 408 U.S. 229, 230 (1972);

United States v. Reidel, 402 U.S. 351, 354 (1971); Roth v. United States,

354 U.S. 476, 485 (1957)).

5

obscene. In doing so, it said, "[o]ur own viewing of the film

satisfies us that `Carnal Knowledge' could not be found

under the Miller standards to depict sexual conduct in a

patently offensive way," i.e., it could not, as a matter of

constitutional law, be found to meet part (b) of the Miller

test ("the work depicts . . . , in a patently offensive way,

sexual conduct . . ."). 418 U.S. at 161.

As to part (c) of the Miller test, the Supreme Court

observed in Smith v. United States that a fact finder's

determination that a work "lack[s] serious literary, artistic,

political, or scientific value" is "particularly amenable to

appellate review." 431 U.S. 291, 305 (1977).

Therefore, instructed by the Supreme Court's teachings

in Jenkins and Smith, we hold that we have an independent

review of parts (b) and (c) of the Miller test. Part (a) of the

Miller test ("whether . . . , applying contemporary

community standards, . . . the work . . . appeals to the

prurient interest"), on the other hand, is a particularly

factual inquiry that does not, on its own, implicate the First

Amendment.

Accordingly, we will review the District Court's factual

findings under part (a) for clear error and exercise plenary

review over its legal conclusions, and we will also exercise

plenary review over the District Court's determinations with

respect to parts (b) and (c) of the Miller test.

III.

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. Before applying the

Miller test to determine if the seized magazines were

obscene, the District Court stated:

In this case, each of the two hundred sixty-four

Magazines at issue contains 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,

6

32 F.3d 733 (3d Cir. 1994), 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.

(Dist. Ct. Op. at 8-9.)

United States v. Knox arose out of a criminal action

brought under federal child pornography laws. In that case,

we considered whether videotapes which depicted children

whose genitals and pubic areas were "always concealed by

an abbreviated article of clothing," 32 F.3d at 737, could

come within the purview of the federal child pornography

laws proscribing a "lascivious exhibition of the genitals and

pubic area." See 18 U.S.C. S 2256(2)(E).

In discussing the Miller test for obscenity and its

application to the constitutionality of child pornography

laws, we stated in Knox that government regulation of

obscene materials is limited by the three-part Miller test.

Regarding child pornography statutes, however, we noted

that "[t]he Supreme Court allows the states and Congress

greater leeway to regulate and proscribe pornography that

depicts minors as distinguished from adults since the

harmful effects suffered by a child are palpably more

severe." 32 F.3d at 749; see also New York v. Ferber, 458

U.S. 747, 756 (1982) (holding that "the States are entitled

to greater leeway in the regulation of pornographic

depictions of children").

The District Court 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. S 1305. That statute provides for seizure of

obscene materials, not seizure of child pornography.

Significantly, in United States v. 12 200-Ft. Reels of Super

8mm. Film, decided the same year as Miller , the Supreme

Court held that the Miller test should be applied in

determining the constitutionality of seizure of materials

7

under 19 U.S.C. S 1305. 413 U.S. 123, 129-30 (1973) ("We

have today arrived at standards for testing the

constitutionality of state legislation regulating obscenity.

See Miller v. California, ante, at 23--25. These standards

are applicable to federal legislation.").

It is evident, therefore, that the issue of whether seizure

of the magazines violated the First Amendment must be

analyzed under the Miller test and not under a Knox child

pornography standard. It is for the prosecutors, not the

courts, to select those laws under which the Government

brings actions, see, e.g., In re Richards, 213 F.3d 773, 782

(3d Cir. 2000), and we should not and will not analyze nor

decide this case as if it were brought under child

pornography laws -- which it was not. The magazines were

seized as offending the obscenity statute, not as offending

child pornography statutes. Accordingly, we must review

the propriety of that seizure only under Miller .

A.

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.2 The District Court answered this

question in the affirmative.

At the outset, we observe that 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 interest." Hence, the

District Court based its finding of prurience in part on the

fact that warning labels are attached to two of eleven

magazines (Exhibits A-K) submitted to the court for review.

Those labels state that sale of the magazines is prohibited

to minors. The labels, coupled with the small typefaces in

the magazines and the magazines' overall layout and

design, led the District Court to conclude that the

magazines were intended for adults, not minors. The

_________________________________________________________________

2. Prurience has been defined by the Supreme Court as "that which

appeals to a shameful or morbid interest in sex." Brockett v. Spokane

Arcades, Inc., 472 U.S. 491, 504 (1985).

8

District Court also observed that, because the magazines

are in French and German, not English, they are being

targeted towards an American audience "focused . . . on . . .

the relentless presentation of naked children and the

exposition of their genitals." It also held that"the focus of

these Magazines is the photographs, and not the text."3

(Dist. Ct. Op. at 10-11.) 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.4

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.

A comparison of the seized magazines with the magazine

Naturally, a nudist publication, reinforces our position.

Naturally was among the exhibits ostensibly perused by the

District Court but not claimed by the Government nor held

by the District Court to be obscene. Admittedly with more

_________________________________________________________________

3. Neither party furnished the District Court with translations of the

textual material found in the magazines. The District Court centered its

attention only on the photographs and illustrations. Because of the

development of the District Court record in this fashion, we too limit our

analysis to the magazines' photographs and illustrations.

4. Indeed, we do not understand the District Court's emphasis on the

warning labels nor the importance that the District Court attributed to

the magazines' readership. Neither would appear relevant to the analysis

under the tripartite test of Miller v. California.

9

text and fewer photographs, Naturally also depicts nudists

engaged in various everyday activities and features

photographs of people at nudist resorts all over the world.

Though Naturally does not have as many photographs of

nude minors as the magazines at issue here, it does

contain several photographs of nude children and

adolescents. Naturally is sold in the District of New Jersey

and, in fact, is even published in Newfoundland, New

Jersey.

We have stated that "[a] finding of fact is clearly

erroneous when, after reviewing the evidence, the court of

appeals is `left with a definite and firm conviction that a

mistake has been committed.' " Oberti v. Board of Ed. of

Borough of Clementon Sch. Dist., 995 F.2d 1204, 1220 (3d

Cir. 1993); see also United States v. United States Gypsum

Co., 333 U.S. 364, 395 (1948). After having looked at all the

exhibits in evidence, we are 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. These magazines, as we have observed, no more

appeal to the prurient interest than does the publication

Naturally. Therefore, even though the "prurient interest"

standard of Miller requires deference to the District Court in

its fact-finding role, see United States v. Duliga, 204 F.3d

97, 100 (3d Cir. 2000), we hold that the District Court has

committed clear error here.5

_________________________________________________________________

5. Rule 52(a) of the Federal Rules of Civil Procedure provides, inter

alia,

that "[f]indings of fact, whether based on oral or documentary evidence,

shall not be set aside unless clearly erroneous, and due regard shall be

given to the opportunity of the trial court to judge of the credibility of

witnesses." Fed.R.Civ.P. 52(a) (emphasis added). Here, of course, the

District Court was not required to pass on the credibility of witnesses,

as

no witnesses had been produced by either party. Rather, the record

before the District Court consisted only of exhibits drawn from the 264

magazines that had been seized, three volumes of artistic photographs,

and several issues of the magazine Naturally. Thus, the record before the

District Court consisted of the exact same exhibits as those before us,

and nothing more.

10

B.

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 to be obscene. See text

supra, at p. 4. Having now determined that the District

Court erroneously found, under part (a) of the Miller

standard, that the magazines appealed to the prurient

interest, we could stop at this point and reverse the District

Court's December 30, 1999 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. We thus turn to part (b)

of the Miller test -- whether the magazines depict, in a

patently offensive way, sexual conduct.

The Supreme Court emphasized in Miller that"no one will

be subject to prosecution for the sale or exposure of

obscene materials unless these materials depict or describe

patently offensive `hard core' sexual conduct." 413 U.S. at

27. The Court, recognizing the difficulty and the dangers of

attempting to regulate any form of expression, gave a few

examples of what a state statute could define for regulation

under part (b) of the Miller standard:

(a) Patently offensive representations or descriptions of

ultimate sexual acts, normal or perverted, actual or

simulated.

(b) Patently offensive representation or descriptions of

masturbation, excretory functions, and lewd exhibition

of the genitals.

413 U.S. at 25. New Jersey has adopted this language,

defining obscene material as material which "[d]epicts or

describes in a patently offensive way, ultimate sexual acts,

normal or perverted, actual or simulated, masturbation,

excretory functions, or lewd exhibition of the genitals."

N.J.S.A. S 2C:34-2(a)(1)(a).

The District Court concluded that the photographs found

in the seized magazines depict "a lewd exhibition of the

11

genitals," which is "sexual conduct" as defined by the

Supreme Court in Miller and by the New Jersey legislature,

and that the depiction "is patently offensive to the

contemporary community standards of this district." (Dist.

Ct. Op. at 12.)

The District Court chose to use the six-factor test

announced in United States v. Dost, 636 F. Supp. 828

(S.D.Cal. 1986),6 in determining that the magazines

depicted "a lewd exhibition of the genitals." It did so

because a 1989 Third Circuit case, United States v. Villard,

885 F.2d 117, 121-22 (3d Cir. 1989), had used the Dost

test to interpret the meaning of the phrase "lascivious

exhibition of the genitals or pubic area." However, neither

Dost nor Villard have direct relevance to the issues that we

must decide. Both cases were child pornography cases and,

as Villard properly held, the test for child pornography

differs dramatically from the Miller test for obscenity. See

Villard, 885 F.2d at 120, 122 (noting that "[t]he test for

child pornography is separate from the obscenity standard

enunciated in Miller" and that "an exhibition of the genitals

_________________________________________________________________

6. In United States v. Dost, the District Court for the Southern District

of

California stated:

in determining whether a visual depiction of a minor constitutes a

"lascivious exhibition of the genitals or pubic area" under [18

U.S.C.]

S 2255(2)(E), 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.

636 F. Supp. at 832.

12

need not meet the standard for obscenity in order to be

considered lascivious [in the child pornography context]").

This being so, we will examine part (b) of the Miller test

without reference to the Dost factors.

We will first consider, as did the District Court, whether

any of the photographs in the magazines depict a"lewd

exhibition of the genitals."7 In deciding this issue, it is

helpful to consider the definitions of the terms"exhibition"

and lewd," neither of which are defined in Miller or in the

New Jersey obscenity statute. Webster's Third New

International Dictionary defines "exhibition" as "an act or

instance of showing, evincing, or showing off." The

dictionary defines the term "lewd" as "sexually unchaste or

licentious," "suggestive of or tending to moral looseness,"

and "inciting to sensual desire or imagination."

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.

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."

_________________________________________________________________

7. This is the only category named by the Court in Miller and by the New

Jersey legislature in N.J.S.A. S 2C:34-2(a)(1)(a) into which the magazines

may fall.

13

Nor do we conclude that the magazines "depict or

describe patently offensive `hard core' sexual conduct."

Miller, 413 U.S. 15, 27 (1973). As discussed above, the

photographs in the magazines 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 is that

almost all of the subjects are nude. However, as the

Supreme Court observed in Jenkins, "nudity alone is not

enough to make material legally obscene under the Miller

standards." 418 U.S. 153, 161 (1974). In these magazines,

"nudity alone" is all there is to even suggest that the

materials are obscene. As such, the magazines fall far

outside the zone of " `hard core' sexual conduct" that may

constitutionally be found to be "patently offensive."

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.

Hamilton's photographs depict pubescent girls, most of

whom either have their breasts exposed or are fully nude.

No photographs of male subjects appear in his works.

Several aspects of these photographs make them sexually

provocative: the majority of the photographs are in soft

focus and the girls are often staring into the camera,

unsmiling, with a sultry look; many of the photographs

reveal girls in the process of taking off lingerie or other

articles of clothing; some photographs are of nude or

partially nude girls lying on beds; in some of the

photographs, the girls are looking at their bodies in

mirrors; some girls are lying or standing with their arms

over their heads and their backs arched; in some

photographs, the girls are touching their own breasts or

14

sexual organs; and a few of the photographs show two nude

or partially nude girls kissing.8

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.

Our conclusion that the magazines are not obscene

under part (b) of the Miller test is further bolstered by the

inability of the Government to produce for us at oral

argument any photograph or illustration in any of the

exhibits that would be held under Miller to be obscene.

Indeed, under persistent questioning by the panel, the

Government called to our attention only one series of

illustrations (not photographs), which illustrations would

certainly be deemed harmless if they appeared in Good

Housekeeping or a similar popularly distributed magazine.

C.

The final prong of the Miller test is whether the work,

taken as a whole, lacks serious literary, artistic, political, or

scientific value. The District Court found that no evidence

in the record supported "a finding that a reasonable person

would find serious artistic or other value in the

photographs depicted in the materials." (Dist. Ct. Op. at 19-

20.) Alessandra's Smile argues on appeal that the

magazines do have value because "[i]n places w[h]ere

_________________________________________________________________

8. The photographs in Radiant Identities also show partially and fully

nude children and adolescents, but contain none of the elements that

make Hamilton's photographs sexually suggestive. Instead, they are

similar to the photographs in the seized magazines and cannot be said

to depict patently offensive sexual conduct.

15

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." (Appellant's

Brief, at 51.) We agree.

In expanding upon part (c) of the test in Miller , 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."

Miller, 413 U.S. 15, 34-35 (1973) (internal citations

omitted).

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. This

is so particularly since the text of the seized magazines is

not before us. See n.3, supra. However, publications

dedicated to presenting a visual depiction of an alternative

lifestyle, a depiction with a decidedly Utopianflavor, have

political value similar to the political value of articles

criticizing government regulation of that and other

lifestyles.

Just as we have held that the District Court erred in its

findings and conclusions respecting parts (a) and (b) of the

Miller test, we hold that the District Court also erred in

holding that the magazines lacked serious political value.

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IV.

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 the seized

magazines to Alessandra's Smile.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

17