Amicus Curiae Brief — Massachusetts v. Oakes

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Supreme Court, U.S,

FLLED

SEP 14 1988

g BOSSPH E, SPANIOL, JR,

NO. 87-1651 CLERK all

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

DOUGLAS L. OAKES,

Respondent.

ON WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

BRIEF OF THE

AMERICAN SUNBATHING ASSOCIATION, INC.

AMICUS CURIAE IN SUPPORT OF RESPONDENT

ROBERT T. PAGE*

General Counsel for the American

Sunbathing Association, Inc.

540 Steele Park Building

50 South Steele Street

Denver, Colorado 80209

Telephone: (303) 393-0433

* Counsel of Record

—_——— ee mmnmemmaenenteeteeeneeennen a

TABLE OF CONTENTS

Page

» \ BF te Moly. 9 5) — re ii

INTEREST OF THE AMICUS CURIAE .......... l

SUMMARY OF THE ARGUMENT ............... 8

pO aE ee 10

Ee ee 10

I. NUDITY ALONE, EVEN OF MINORS,

CANNOT CONSTITUTIONALLY BE REG-

ULATED AS OBSCENITY, NOR WILL

CASE-BY-CASE ANALYSIS PREVENT

THE CHILLING EFFECT ON FIRST

AMENDMENT RIGHTS ................. 12

II. VISUAL PORTRAYAL OF THE NUDIST

LIFESTYLE IS PROTECTED EXPRES-

eT Tree re eet eee 16

Ill. STATUTES PROSCRIBING NUDITY OF

CHILDREN MUST TARGET SEXUAL

CONDUCT OR EXPLOITATION .......... 20

CD 4 55.59 64.0 0 sbeebs ec sney oceans ss 23

EE ois Uae a bat nd ee bav seers seebws on la

folioed

APPENDIX B SOR ReeEUeee ee Cee RE PREC HR ORO Me EROS ES inside back

cover

(i)

TABLE OF AUTHORITIES

Cases Page

American Booksellers Association, Inc. v. Hudnut,

771 F2d 323 (7th Cir. 1985), affd, 475 U.S. 1001

.. Seer 18

Arcara v. Cloud Books, Inc., 478 U.S. 697 (1986) ... 20

Bach v. Commonuealth, 703 S.W.2d 489 (Ky. App.

OUND. nkcccccscuseevevecehueneeguneeeseueees 14

Boos v. Barry, 108 S. Ct. 1157 (1988) .........----:

Broadrick v. Oklahoma, 413 U.S. 601 (1973) .....-- 11,13

Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970) . 18

City Council of Los Angeles v. Taxpayers for Vincent,

A466 U.S. 789 (1984) ......-e cee ce cee eeeeeeecees 12

City of Chicago v. Geraci, 46 Ill. 2d 576, 264 N.E.2d

SEO (IOTED . onc v ccccccccsecesseuscoumeeeneneaes 16

City of Houston v. Hill, 107 S. Ct. 2502 (1987) ..... ll

Commonwealth v. Oakes, 401 Mass. 602, 518 N.E.2d

836 (1988), cert. granted, 108 S. Ct. 1994 (1988)

(Mo, ST-RBBA) ... cc ccccccccccsccrscnscesceuses 8,10

Craft v. Hodel, 683 F. Supp. 289 (D. Mass. 1988),

appeal docketed, No. 88-1438 (Ist Cir. July 18,

BOD... coccccvcsscecseeusussueeeueeseaaeeme 18

Erznoznik v. City of Jacksonville, 422 US.

SOE CIDTE) ...occccvccesuccevevesssenepeeeeees passim

Faloona v. Hustler Magazine, Inc., 607 F. Supp. 1341

(N.D. Tex. 1985), affd, 799 F.2d 1000 (5th Cir.

1986), cert. denied, 107 S. Ct. 1295 (1987) ....... 18,19

Felton v. City of Pensacola, 390 U.S. 340 (1968) .... 17

Freedman v. Maryland, 380 U.S. 51 (1965) ........ 21

Freeman v. Commonwealth, 233 Va. 301, 288 S.E.2d

OG0 CABO . occ cccscccscsnceeeneseeeeteeteaae 19

Frisby v. Schultz, 56 U.S.L.W. 4785 (U.S. June 29,

errr rr 21

Globe Newspaper Co. v. Superior Court, 457 U.S. 596

CU, ng cu nccvccvdsecententenseeeenn ns =meae 21

Goodmakers v. State, 450 So. 2d 888

(Fla. App. 1984) ......----. eee cere eee eerie: 19

Griffin v. State, 396 So. 2d 152 (Fla. ter 14

Home Box Office, Inc. v. Wilkinson, 531 F. Supp. 987

(D. Utah 19GB)... ccc cece ccc ccsevccvscces 17

TABLE OF AUTHORITIES—Continued

Page

In re Duncan, 189 Cal. App. 3d 1348, 234 Cal. Rptr.

877 (1987), cert. denied, 108 S. Ct. 501 (1987) .... 14

Jenkins v. Georgia, 418 U.S. 153 (1974) ........ 7,16,17,20

Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123

(2d Cir. 1984), cert. denied, 471 U.S. 1054 (1985) . 19

Miller v. California, 413 U.S. 15 (1973) ..........-. 13,22

New York v. Ferber, 458 U.S. 747 (1982) ........... passim

Parmelee v. United States, 113 F.2d 729 (D.C. Cir.

Lied eh ee decaccovcccces 16

People v. Biocic, 80 Ill. App. 2d 65, 224 N.E.2d 572

a err ke 18

People v. Lerch, 91 Ill. Dec. 402, 483 N.E.2d 888, affg

134 Ill. App. 3d 643, 480 N.E.2d 1253 (1985) ..... 14

Roberts v. Clement, 252 F. Supp. 835 (E.D. Tenn.

ee cue secnseccicoscccecs 3

Rosenbloom v. Virginia, 388 U.S. 450 (1967) (per

ee cee c sce eeccceveesesseeces 17

Schad v. Borough of Mount Ephraim, 452 U.S. 61

EE ee 18

Secretary of State of Maryland v. Joseph H. Munson

Co., 467 U.S. 947 (1984) ........ 0. ccc eeeeceeess 14,21

Shields v. Gross, 58 N.Y.2d 338, 44° N.E.2d 108

ia cu secectecccecesces 19

Smith v. State, 413 N.E.2d 652 (Ind. App. 1980) ... 17

State v. Jordan, 665 P2d 1280 (Utah 1983), appeal

dismissed, 464 U.S. 910 (1983) ............-.4-: 14

State v. Robinson, 28 Ohio St. 3d 65, 502 N.E.2d 634

See ces ebcseccccvescccecss 14

State v. Young, 37 Ohio St. 3d 249, N.E.2d ;

1988 Ohio LEXIS 213 (July 6, 1988) ............ 10

Sunshine Book Co. v. Summerfield, 355 U.S. 372

(1958), rev'g 249 F.2d 114 (D.C. Cir. 1957), affg 128

F Supp. 564 (D.D.C. 1955), on remand, 184 F.

Supp. 767 (D.D.C. 1960) ..........--.6.eeee sees passim

United States v. Andersson, 803 F.2d 903 (7th Cir.

1986), cert. denied, 107 S. Ct. 962 (1987) ........ 14

(iil)

TABLE OF AUTHORITIES— Continued

Page

United States v. Central Magazine Sales, Ltd., 381

F.2d 821 (4th Cir. 1967) (per curiam), affg United

States v. A Shipment of 25,000 Magazines, 254 F.

Supp. 1014 (D. Md. 1966) ...................... 17

United States v. Flippen, 674 F. Supp. 536 (E.D. Va.

ie «iis kde un eh the ckekeaes bantoutedas 14

United States v. Tolezeki, 614 F. Supp. 1424 (N.D.

I is ree a ee ee ee re a 14

United States v. Various Articles of Obscene

Merchandise, 460 F. Supp. 826 (S.D.N.Y. 1978) .. 7,17,19

United States v. Wiegand, 812 F.2d 1239 (9th Cir.

1987), affg 636 F. Supp. 828 (S.D. Cal. 1986), cert.

denied, 108 S. Ct. 164 (1987) ................... 14

Williams v. Kleppe, 539 F.2d 803 (1st Cir. 1976), affg

400 F. Supp. 122 (D. Mass. 1975) ............... 18

Constitutions, Statutes and Rules

H.B. 5555, 1988 Mass. Acts, ........ 10,11, Appendix A

Mass. Gen. Law ch. 272, §29A (1986) ............. 6

Mass. Gen. Law ch. 272, §31 (1986) ............... 8

Protection of Children Against Sexual Exploitation

Act of 1977, 18 U.S.C. §§2251-2256 (1986) ....... 15

Other Sources

American Sunbathing Association, Inc., Bylaws

ON I ree ety ee 2

American Sunbathing Association, Inc., Nudist Park

a rg 5

L. Baxandall, World Guide to Nude Beaches and

Recreation (Crown, 2d ed. 1983) ................ 3,6

Besharov, “Doing Something” About Child Abuse:

The Need to Narrow the Grounds for State Inter-

vention, 8 Harv. J. L. & Pub. Pol’y 539 (1985) .... 20

Effect of Pornography on Women and Children,

Hearings Before the Subcomm. on Juvenile Justice

of the Senate Comm. on the Judiciary, 98th Cong.,

2d Sess. (1984) (statement of Kenneth Lanning,

Behavioral Science Unit, Federal Bureau of Inves-

ES SEA gen ie rhe ae oe Re 12,21

(iv)

— EE CE

eee

TABLE OF AUTHORITIES—Continued

Gallup Organization, Inc., Most Americans Approve

of Nude Recreation (Princeton, N.J., June, 1983)

Goodrich, Skinny Dipping: The Old Swimming Hole

Breeds New Controversy, Parks & Recreation 33

EER EAE ARE 10 nn

Harker, Nude Bathing, No Controversy, Parks &

Recreation 58 (August 1987) ...................

W. Hartman, M. Fithian and D. Johnson, Nudist

Society (Crown 1970) ................. 000000 en.

Kellum and Lovelace, Tb Bare or Not to Bare: The

Constitutionality of Local Ordinances Banning

Nude Sunbathing, 20 U. Rich. L. Rev. 589 (1986)

Let Yourself Be Free (American Sunbathing Associa-

I hashes ues c seen el cieckec occ dedor ccs

M. Mead and R. Metraux, A Way of Seeing (McCalls

Cae aha noe Gel aed <0LKk cb thse tcikeee

Naturist Society, Clothed With the Sun: A Journal of

the Clothes Optional Lifestyle .................

A. Neill, Freedom, Not License (Hart 1966) .......

Note, The Supreme Court 1981 Term (pt. E), 96 Harv.

eS 8 | Ee

M. Parmelee, Nudism in Modern Life (1931) .......

Plutarch, Lives of the Noble Grecians and Romans

RS "> eee eee

Senate Comm. on Govt’l. Affairs, Perm. Investiga-

tions Subcomm., (99 Cong. 2d Sess., Rep. No.

99-537) Report, Child Pornography and Ped-

Deceit te sla ee

Sexual Exploitation of Children: A Report to the

Illinois General Assembly (Ill. Legis. Investigating

ee a or nes Se

Welcome to Our World (American Sunbathing Asso-

I ibe rn 0a rea ck feade eon es de kk

{v)

Page

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

NO. 87-1651

COMMONWEALTH OF MASSACHUSETTS,

Petitioner,

DOUGLAS L. OAKES,

Resnondent.

ON WRIT OF CERTIORARI TO THE

SUPREME JUDICIAL COURT FOR

THE COMMONWEALTH OF MASSACHUSETTS

BRIEF OF THE

AMERICAN SUNBATHING ASSOCIATION, INC.

AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF THE AMICUS CURIAE

The American Sunbathing Association, Inc. (ASA) is a

nonprofit corporation organized under the laws of the State

of Florida. The organization serves as the principal interest

group and spokesman for social nudism in North America.

At its founding in 1931, the ASA adopted the following

Principles and Standards:

We believe in the essential wholesomeness of all

human bodies and of the natural functions and activi-

ties which they perform. We believe in the naturalness

of social nudism, and we consider that exposure of the

entire human body to sun, light and air is beneficial.

We believe that we have the right to practice social

nudism, provided that we do not infringe upon the

rights of others. ASA Bylaws, Art. II (1987 ed.).

Headquartered with a professional staff in Kissimmee,

Florida, the ASA has about 30,000 members and some 200

clubs in the United States and Canada, including four

established clubs in the State of Massachusetts. The ASA is

affiliated with the worldwide International Naturist

Federation headquartered in Antwerp, Belgium.

Social nudism as practiced within the clubs of the ASA

provides a wide range of activities for people of all ages.

Athletics, social recreation, and interpersonal communica-

tion promote the betterment of body and mind and

strengthen family bonds.

Modern! social nudism generally traces its beginnings to

turn-of-the-century Germany, where freikorperkultur (“free

body culture”) parks were established with emphasis on

outdoor physical conditioning, vegetarianism, and clean

1 As far back as ancient Greece, the unclothed human body has been accepted at

certain times and places as both fitting and proper. In his “Life of Lycurgus.

Plutarch wrote of the Spartan ruler:

|He| ordered the maidens to exercise themselves with wrestling,

running, throwing the quoit, casting the dart. ... And to the end

that he might take away their over-great tenderness and fear of

exposure to the air, and all acquired womanishness, he ordered

that the young women should go naked in the procession, as well!

as the young men, and dance, too, in that condition, at certain

solemn feasts, singing certain songs, whilst the young men stood

around seeing and hearing them. .. . Nor was there anything

shameful in this nakedness of the young women; modesty

attended them and all wantonness was excluded. It taught them

simplicity and care for good health, and gave them some taste for

higher feelings, admitted as they were, thus, to the field of noble

action and glory.

Plutarch, Lives of the Noble Grecians and Romans 59-60 (Mod. Lib. ed. 1967)

living. Caffeine, tobacco, and alcohol were taboo. This his-

tory, with its air of self-justification, is responsible for some

jokes and misperceptions of nudists as a cult carrying on

activities in semi-secret “colonies.” Fortunately, this image

is changing as people recognize nudism as a legitimate

choice of living style or preferred adjunct to recreation.2

In 1980 the Naturist Society was founded in Oshkosh,

Wisconsin, to focus on the interest in the larger phe-

nomenon of so-called free beaches and similar recreational

use of public lands in secluded areas, hot springs and

traditional locations long used for skinny dipping. Some of

those areas, like Black’s Beach in San Diego, California,

have become as famous as they are popular, not unlike the

growth which has occurred in the Mediterranean nudist

resort playgrounds of Spain, France and Yugoslavia. In

other locales, such as Rooster Rock State Park, Oregon, and

Lake Travis, near Austin, Texas, local governments have

established official nude beach areas with appropriate park

facilities and signs to advise the public.4

A Gallup poll conducted in i983 showed not only a

seventy-two percent majority acceptance of the idea that

there should be designated areas for nude recreation, but

also found that fifteen percent of those surveyed had

experienced social nudism in one setting or another.®

2 See, eg., Goodrich, Skinny Dipping: The Old Swimming Hole Breeds Neu

Controversy, Parks & Recreation, May 1980 at 33. A thorough exposition of the

history and philosophy of the nudist movement in Europe and North America is

given in Roberts v. Clement, 252 F. Supp. 836 (E.D. Tenn. 1966)

3 L. Baxandali, World Guide to Nude Beaches and Recreation 140 (Crown 2d ed

1983)

4 See, eg., Harker, Nude Bathing, No Controversy, Parks & Recreation, August

1987 at 58-61; Kellum and Lovelace, 7) Bare or Not to Bare: The Constitu

tionality of Local Ordinances Banning Nude Sunbathing, 20 U. Rich. L. Rev. 589

(1986)

5 Gallup Organization, Inc., Most Americans Approve of Nude Recreation (Prince

ton, N.J., June, 1983)

Children are natura! nudists. They especially benefit

from social nudism and quickly overcome curiosity and

shyness, learning to accept their bodies regardless of their

stage of maturity. They are seldom embarrassed or

ashamed of their bodies and consequently have a healthier

sexual attitude.

Nudists believe in the proper photographic portrayal of

children enjoying the family nudist lifestyle whether the

setting be a nudist park, beach, or home. It is our purpose to

educate and differentiate between this legitimate nudist

photography and that which we deplore: the exploitation of

children as objects of pornography or violence.

The ASA is dedicated to the welfare of our present and

future adherents, especially our children. In no sense would

we wish to be seen as tolerant of any form of sexual

exploitation of a child or adult. We believe that the protec-

tion of our First Amendment freedom to express our princi-

ples and standards strengthens everyone's ability to dis-

tinguish the open, joyful, and natural portrayal of body

freedom from any form of degradation.

We find the nudist philosophy, with its natural aecep-

tance of the basic human worth of each individual, to be of

specific value to growing children. As one investigation

concluded:

{Njudist children may have an advantage over a great

many other children in our culture who have never

been exposed to the same or opposite sex in the nude.

We view this as a positive aspect of nudism, for both

the children and adults. It not only gives children the

opportunity to see that they are like other boys and

girls, but it gives the parents the opportunity to notice

6 A Neill. Freedom. Not License 87 (Hart 1966)

that Johnny and Jane are developing at about the same

maturation rate as the other youngsters their age.

W. Hartman, M. Fithian and D. Johnson, Nudist Society

130-31 (Crown 1970). See also, M. Mead and R. Metraux, A

Way of Seeing 161 (McCalls 1970).

From its very beginnings, the nudist movement has had a

family-oriented philosophy. Belief in the fundamental

wholesomeness of the human body extends to people of all

ages. We believe that the ability to realize this special form

of freedom eliminates the common connection others make

between nudity and sex. Nudists have standards and reg-

ulations about photography which are characterized by

good manners, respect for privacy, and anonymity.

The publication and information functions of the ASA are

of utmost importance. To illustrate, just within the past

year the organization has published the sixteenth edition of

its Nudist Park Guide, a 240-page book, listing information

on and maps of the ASAs clubs and resorts. It is expected to

sell over 20,000 copies through the ASA office, bookstores,

and distributors. It can be found in many public libraries,

including the Farber Library in North Hampden, Mas-

sachusetts, and Springfield City Library, in Springfield,

Massachusetts. In addition, an illustrated monthly tabloid

newspaper is sent to members and other interested parties.

The organization also prints various brochures explaining

aspects of social nudism and delineating some of the history

of the movement. (To illustrate this function, the ASA‘’s

current public relations brochure is appended as Appendix

B.)

In 1987, the ASA produced and copywrited two video tape

films. One is Welcome to Our World (ASA 1987), a twelve

and one-quarter minute introductory program designed for

presentations to organizations, service groups, trade fairs,

travel agents and the like. The other is a thirty-minute

entertainment video, for which arrangements are presently

being made for commercial distribution. Let Yourself Be

Free (ASA 1988). All these publications use film and photo-

graphic portrayal of social nudism with men, women, and

children in the nude to show activities at our clubs and at

certain beach locations traditionally used by nudists.

In addition, many of the organization’s member clubs

publish their own brochures or other promotional mate-

rials, along with club newsletters directed to the members

of that club and prospective members in given locales. Many

clubs place their brochures and literature with travel

bureaus, chambers of commerce, and other information

centers and locations of public interest.’

We believe that wholesome photographic portrayal of the

nude form is essential to the education of the general public

and to the documentation of the nudist movement, and that

such photography is protected by the First Amendment to

the Constitution of the United States. We express our

concern and disagreement with broad-brush lawmaking

illustrated by Massachusetts’s attempt to criminalize por-

trayals, or consent thereto, of “a child in a state of nudity.”

Mass. Gen. L. ch. 272, §29A (1986). Without the kind of

declaration of unconstitutionality of this statute as ren-

dered by the court below, production of the nudist materials

7 The American Sunbathing Association is not the only publisher of nudist

literature. The Naturist Society (PO. Box 132, Oshkosh, Wisconsin 54902)

publishes an attractive quarterly magazine entitled Clothed With the Sun: A

Journal of the Clothes Optional Lifestyle. The same organization is likewise

responsible for publication of the most popular guide to nudist opportunities

throughout the world. L. Baxandall, World Guide to Nude Beaches and

Recreation (Crown, 2d ed. 1983). There are currently in print at least eight

entertainment video tapes reflecting the nudist or naturist lifestyle around the

world, as well as nine books and four other magazines available in the North

American markets

described above could not occur in Massachusetts, nor could

any of our 591 members there take a family snapshot which

includes nude children. The effect of the Massachusetts

statute is to ignore the well-established traditions and

principles of nudists, as well as to impair or chill the ability

of the ASA itself to further its goals and educate the public

about social nudism.

Since nudity is not equated with obscenity,® our courts

have wisely followed a course of defining that kind of nudity

which may be offensive in terms of sexually overt actions,

e.g., “lewd exhibition of the genitals,” “exhibition calculated

to offend or affront,” and the like.® This long-accepted

distinction is important to nudist families. If, by error or

zeal, the distinction between nude and lewd were to be

ignored or done away with, the “body taboo” believed in by

others would seem real to our nudist children, threatening

the healthy outlook they grow up with.

The interest and concern of your amicus curiae stems

from the following facial reading of the Massachusetts

statute:

Whoever with knowledge that a person is a child

under eighteen years of age, or whoever while in

possession of such facts that he should have reason to

know that such person is a child under eighteen years

of age, hires, . . . solicits or . . . employs, procures, uses,

causes, encourages, or knowingly permits such child to

pose or be exhibited in a state of nudity . . . for purpose

of visual representation or reproduction in any book,

magazine, pamphlet, moticn picture film, photograph,

or picture shall be punished... .

8 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Jenkins v. Georgia, 418

U.S. 372 (1974); Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958); New

York v. Ferber, 458 U.S. 747, 765-66 at n.18 (1982).

9 E.g., United States v. Various Articles of Obscene Merchandise, 460 F. Supp. 826,

830 (S.D.N-Y. 1978).

It shall be a defense . . . that such visual representa-

tion or reproduction of any posture or exhibition in a

state of nudity was produced, . . . for a bona fide

scientific or medical purpose, or for an educational or

cultural purpose for a bona fide school, museum or

library.

Mass. Gen. L. ch. 272, §29A (1986) quoted in Common-

wealth v. Oakes, 401 Mass. 602, 603 n.1, 518 N.E.2d 836, 837

n.1 (1988). Nudity is further defined in Mass. Gen. L. ch.

272, $31 (1986). The ASA, its affiliated clubs and members,

and other nudists in North America do not fit within any of

the stated exceptions.

The interest and position of the amicus is in support of

the majority opinion below. The filing of this brief amicus

curiae has been consented to by counsel for the Petitioner

and Respondent.

SUMMARY OF ARGUMENT

Introduction

We recognize that the Massachusetts legislature, in an

apparent attempt to conform §29A to the decision of the

Massachusetts Supreme Judicial Court, amended the stat-

ute to add additional qualifying terms to the blanket

prohibition on child nudity. There is still some reason for

concern as to the vagueness of the terminology used in the

amendment. Whatever the effect of that amendment may

be, we submit that useful bright lines should be drawn as

guidelines in an area apparently left subject to troublesome

interpretation of the earlier decisions of this Court. (Pages

10-12)

It appears that a misunderstanding of this Court's pre-

vious decisions led the Massachusetts lawmakers to draft

an overly broad law seeking to prohibit the pictorial rendi-

tion of nude persons under the age of eighteen. This law

was drawn in connection with other prohibitions properly

aimed at the criminal regulation of child pornography. And

while numerous examples of case-by-case analysis provide

some assurance that courts are generally able to make

apparently sound distinctions between innocent nudity and

exploitative material, there are instances in which genuine

concern arises. The impact of the censor on the photogra-

pher is real, substantial, and serious. Case-by-case analysis

does not address the chilling effect of a statute that pre-

vents people from otherwise engaging in lawful protected

expression. (Pages 12-16)

Historically, court decisions in this country, including

those of this Court, have upheld the right of nudists to

express their belief, in all manner of media, that the

unclothed body is not an object of shame, nor is it, in the

context of social nudism, sexual. Nudity alone has been

held not to be illegal conduct. The choice of a nudist lifestyle

and the visual portrayal thereof is a fundamental liberty

entitled to protection under the First Amendment.

The Massachusetts statute, prior to amendment, over-

broadly attempted to regulate all child nudity without

regard to the activity engaged in by the child. As such, the

statute failed to account for the nudist family snapshot. The

interests of these families and of the ASA as their principal

spokesman are seriously compromised by the uncertainty

created by such broad legislation. (Pages 16-20)

It is more effective, honest, and protective of everyone's

liberties and best interests to require that state laws

regulating child pornography target the exploitative and

sexual aspects of that evil directly rather than seek the

expediency of totally banning the portrayal of nudity. In

this manner, the offensive conduct itself can be isolated and

appropriately prosecuted. This Court’s decisions have never

indicated that the portrayal of child nudity was itself in any

way pornographic or subject to the per se prohibitions the

court below found so troubiesome.

If we fail to focus diligently upon the actual problem at

hand, we risk diluting resources which must be marshalled

to the real task of protecting children. Nudist children do

not need uninformed protection, nor should any portion of

the public be required to speculate about the legality of

their conduct in composing a visual portrayal of children.

(Pages 20-22)

ARGUMENT

INTRODUCTION

Following the Massachusetts Supreme Judicial Court's

decision in Commonwealth v. Oakes, 401 Mass. 602, 518

N.E.2d 836 (1988), cert.granted, 108 S. Ct. 1994 (1988) (No.

87-1651), the state legislature amended the statute in

question in an apparent effort to confine the statute's reach

to sexually oriented exploitation of minors. The amendment

was the addition of a qualifying phrase, “with lacivious

intent.” (H.B. 5555, 1988 Mass. Acts _ reprinted as

Appendix A.)!° Without expressing any opinion as to the

constitu-

10 A statute substantially similar to that here under consideration has been

judicially construed to require that prohibited child nudity include “a lewd

exhibition or... graphi. focus on the genitals.” State v. Young, 37 Ohio St. 3d

249, N.E.2d, _ 1988 Ohio LEXIS 213 (July 6, 1988).

tionality of the amended statute,!! your amicus urges the

affirmance of the decision below in order to clarify this

Court’s previous holdings that nudity in its visual and

photographic portrayal, even of minors, is not obscene and

therefore may not, without more, be the subject of criminal

prosecution. This Court can provide useful guidance in the

form of a finding and declaration that the Massachusetts

statute, prior to its amendment, carried the regulation of

protected expression too far.!2

The question presented in this writ of certiorari!

appears to address the method of constitutional construc-

tion, in light of First Amendment concerns, engaged in by

the Massachusetts court. Accordingly, your amicus antici-

pates that the litigant parties will address, on the merits,

the detailed and sometimes intricate issues of First Amend-

ment overbreadth. Broadrick v. Oklahoma, 413 U.S. 601

(1973); Boos v. Barry, 108 S. Ct. 1157 (1988); City of Houston

v. Hill, 107 S. Ct. 2502 (1987). Your amicus therefore will

leave the bulk of such a discussion to those parties in order

to more clearly set forth its particular interest as a friend of

this Court. That interest would support a decision, however

analytically arrived at, that the Massachusetts statute was

11 The definition supplied for “lacivious intent” as set forth in Section 31 of H.B.

5555 (Appendix A) leaves ample room to question the precision of the law and

its possible interpretations. What, for example, is meant by the term “deviation

from accepted customs and manners” as set forth in subsection (1)? Similarly,

subsection (4) provides by way of suggested interpretation “whether the child is

depicted in an unnatural pose or inappropriate attire considering the child's

age.” It is submitted that nearly all children roughhouse, play dress-up and

occasionally run around without clothes.

12 This occasion marks the first opportunity in thirty years for the Court to

address the specific constitutional rights of a significant minority of concerned

citizens. Sunshine Book Co. v. Summerfield, 355 U.S. 372 (1958).

13 “Does possible application of a criminal statute designed to prevent sexual

abuse and exploitation of children to marginal conduct arguably protected by

First Amendment justify court in invalidating entire statute on overbreadth

grounds and reversing defendant's conviction without deciding whether defen-

dant’s actions, were within statute's substantial legitimate reach?” 56 U.S.L.W.

3801 (U.S. May24, 1988).

indeed facially overbroad, see New York v. Ferber, 458 U.S.

747, 774-76 (1982) (O’Connor, J. concurring), and that it

would “significantly compromise First Amendment protec-

tions of parties not before the Court. . . .” City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984)

(citing Erznoznik v. City of Jacksonville, 422 U.S. 205

(1975)).

I. NUDITY ALONE, EVEN OF MINORS, CANNOT

CONSTITUTIONALLY BE REGULATED AS

OBSCENITY, NOR WILL CASE-BY-CASE ANALY-

SIS PREVENT THE CHILLING EFFECT ON

FIRST AMENDMENT RIGHTS.

The Massachusetts legislature may have sought to cur-

tail the existence of literature which has a presumed appeal

to persons who take a deviant sexual interest in children.'4

Such arguably worthy motives have left a much too widely

drawn net in which to also snare activity which is both

legitimate and constitutionally protected. While the exam-

ple given in the opinion below might be obvious, it is apt;

many others are available from the developed case law. See

discussion at Part II, infra.

The statute in question appears to have originated from a

misundeistanding of this Court’s holding in New York v.

Ferber, 458 U.S. 747 (1982). The lawmakers may have

believed that because the broad message of Ferber is that

states will be allowed more latitude in regulating obscenity

which uses and exploits children than is permitted by the

14 It should be noted that photos of nude children are far from the only sources of

stimulation for pedophiles. The experts note that also appealing are voices,

stories, diaries and even children in clothing and underwear advertisements

found in newspapers and store catalogues. Effect of Pornography on Women and

Children, Hearings Before the Subcomm. on Juvenile Justice of the Senate

Comm. on the Judiciary, 98th Cong., 2d Sess. (1984) (statement of Kenneth

Lanning, Behavioral Science Unit, Federal Bureau of Investigation) 38.

“hard core” standard established for adults in Miller v.

California, 413 U.S. 15 (1973), states are therefore free to

engage in virtually any regulation regarding the visual

depiction of children, including laws which would supress

simple nudity. But in Ferber this Court took considerable

care to aim only at the subject of sexual content, both as to

the images produced and to the intended audience. 458 U.S.

at 764-65. Ferber reiterated the long standing principle that

“nudity, without more, is protected expression,” citing

Erznoznik v. City of Jacksonville, 422 U.S. at 213. As Justice

O’Connor cautioned:

On the other hand, it is quite possible that New

York’s statute is overbroad because it bans depictions

that do not actually threaten the harms identified by

the Court. For example, clinical pictures of adolescent

sexuality, such as those that might appear in medical

textbooks, might not involve the type of sexual exploita-

tion and abuse targeted by New York’s statute. Nor

might such depictions feed the poisonous “kiddie porn”

market that New York and other States have

attempted to regulate. Similarly, pictures of children

engaged in rites widely approved by their cultures, such

as those that might appear in issues of National

Geographic, might not trigger the compelling interests

identified by the Court.

Ferber, at 775. (emphasis added).

While Ferber has been criticized for “leaving unanswered

precisely how to determine what speech is unprotected,”

Note, The Supreme Court 1981 Term (pt. E), 96 Harv. L.

Rev. 141, 145 (1982), this Court reasoned that such decisions

could be made on a case-by-case analysis. New York v.

Ferber, 458 U.S. at 773-774; Broadrick v. Oklahoma, 413

U.S. at 610-16 (1973). And, case-by-case analysis has

occurred. E.g., United States v. Flippen, 674 F. Supp. 536,

542 (E.D. Va. 1987) (“All other evidence offered by the

Government is probably inadmissible. . . . Gov. Exs. 13A,

15-27 are magazines that contain pictures of nude children,

often playing at nude beaches or nude resorts, but the

children are not engaged in any sexual activities.”) See also

United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), affg

636 F. Supp. 828 (S.D. Cal. 1986), cert. denied, 108 S. Ct. 164

(1987); United States v. Andersson, 803 F.2d 903 (7th Cir.

1986), cert. denied, 107 S. Ct. 962 (1987); United States v.

Tolezeki, 614 F. Supp. 1424 (N.D. Ohio 1985); In re Duncan,

189 Cal. App. 3d 1348, 234 Cal. Rptr. 877 (1987), cert.

denied, 108 S. Ct. 501 (1987); State v. Jordan, 665 P2d 1280

(Utah 1983), appeal dismissed, 464 U.S. 910 (1983); Griffin

v. State, 396 So. 2d 152 (Fla. 1981).

But the price of such case-by-case analysis to mothers,

fathers, and stepfathers may also be the risk of serious

criminal charges for taking nude pictures of their children.

Their concerns are both real and substantial. See People v.

Lerch, 91 Ill. Dec. 402, 483 N.E.2d 888, affg 134 Ill. App. 3d

643, 480 N.E.2d 1253 (1985); State v. Robinson, 28 Ohio St.

3d 65, 502 N.E.2d 634 (1986); Bach v. Commonwealth, 703

S.W.2d 489 (Ky. App. 1985). Consequently, case-by-case

analysis will not solve the chilling effect of statutes such as

Mass. Gen. L. ch. 272, $29A (1986). E.g., Secretary of State

of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984).

Where the proscription is absolute, case-by-case analysis is

impossible. Sunshine Book Co. v. Summerfield, 355 U.S.

372 (1958).

Your amicus has no quarrel with the definition of

unprotected speech chosen by New York and approved in

Ferber, 458 U.S. at 764, and we earnestly hope that the

commentator is correct in his analysis that:

The language and citations employed by the Court

help to illuminate the contours of the new category of

unprotected speech; both suggest that the category

comprises only hard-core pornography that sexually

exploits minors. The Court’s use throughout the opin-

ion of the term “child pornography” to refer to the

material at issue, its citation to medical periodicals

that address sexual abuse and exploitation, and its

acknowledgement that the New York statute is directed

at hard-core child pornography indicate that the cate-

gory of unprotected speech is restricted to abusive and

exploitative material. Seen against the background of

the Court’s overbreadth analysis, this limitation sug-

gests that Ferber should not be read to give a green

light to states to prohibit distribution of all material

depicting sexual conduct by children.

Note, The Supreme Court 1981 Term at 148-49 (footnotes

omitted). We submit that nudity of children is not sexual

conduct, except in the minds of those who believe all nudity

is inherently sexual.!°

This Court, in Ferber, sought to square the notion that

certain hard-core dynamics expounded upon in Miller were

15 There may even be some reason to question the magnitude of the evils. A three-

year investigation by the State of Illinois concluded that after certain amend-

ments to federal law encompassed in the Protection of Children Against Sexual

Exploitation Act of 1977, 18 U.S.C. §§2251-2256, domestic commercial child

pornography had become extinct and what little remained was a pathetic

underground of amateurs who preserved old pictures. These findings were

corroborated by the Federal Bureau of Investigation. Ill. Legis. Investigating

Comm., Sexual Exploitation of Children, A Report to the Illinois General

Assembly 14 (1980). See also Note, supra note 52, at 149. Between January 1,

1978, and May 21, 1984, there were a total of sixty-four federal convictions for

child pornography. Senate Comm. on Govt'l. Affairs. Perm. Investigations

Subcomm. (99 Cong. 2d Sess., Rep. No. 99-537), Report, Child Pornography and

Pedophilia 5-6 (1986)

not the only forms of prohibited sexual expression when

persons under the age of consent were portrayed. The New

York statutes evaluated in Ferber left no doubt that their

sole and relatively well-focused aim was pornography, in

particular that which in and of itself constitutes abuse of

children. New York v. Ferber, 458 U.S. at 751.

The fundamental error in the Massachusetts statute is

the absolute ban on the photographic portrayal of child

nudity, which nudity is not, as defined, sexual, let alone

obscene, lewd, pornographic, or exploitative. This Court has

rejected such a doctrine. Erznoznik v. City of Jacksonville,

422 U.S. 205 (1975): Jenkins v. Georgia, 418 U.S. 153 (1974).

II. VISUAL PORTRAYAL OF THE FAMILY NUDIST

LIFESTYLE IS PROTECTED EXPRESSION.

Nudist publications and literature have a judicial and

constitutional history which somewhat parallels the

growth of the movement in America itself. In 1940, Dr.

Maurice Parmelee, a pioneer nudist and member of the ASA

Hall of Fame, saw his book, Nudism in Modern Life (1931),

subject to a libel action upon its importation into the United

States. The libel finding was reversed and importation

allowed in an historical and scholarly opinion. Parmelee v.

United States, 113 F.2d 729 (D.C. Cir. 1940).

The efforts of the ASA to send its own magazine through

the mails followed a more tortuous route, ultimately

culminating in this Court’s decision in Sunshine Book Co. v.

Summerfield, 355 U.S. 372 (1958), rev'g 249 F.2d 114 (De.

Cir. 1957), affg 128 F. Supp. 564 (D.D.C. 1955), on remand,

184 F. Supp. 767 (D.D.C. 1960).'© See, e.g., City of Chicago v.

16. Legal success was its own undoing for the ASAS magazine Sunshine and

Health. Pictures of nudists and “volleyball results” joked about by surgeon

Hawkeye Pierce on the television series “M.A.S.H”” could no longer compete on

the curiosity level with the likes of Playboy. Present day nudist literature such

as described above must and does succeed on the merits and interest of the

subject itself.

Geraci, 46 IIll.2d 576, 264 N.E.2d 153 (1970) (nudist maga-

zine protected expression); Home Box Office, Inc. v. Wilkin-

son, 531 F. Supp. 987 (D. Utah 1982) (state may not ban

nudity from cable television); United States v. Various

Articles of Obscene Merchandise, 460 F. Supp. 826 (S.D.N_Y.

1978) (separating nudist literature from adult pornogra-

phy); United States v. Central Magazine Sales, Ltd., 381

F.2d 821 (4th Cir. 1967) (per curiam), a/fg United States v. A

Shipment of 25,000 Magazines, 254 F. Supp. 1014 (D. Md.

1966) (same; materials included nudist literature). In the

same vein as Sunshine Book Co., supra, also involving

nudist literature, are Felton v. City of Pensacola, 390 U.S.

340 (1968) and Rosenbloom v. Virginia, 388 U.S. 450 (1967).

See also Smith v. State, 413 N.E.2d 652 (Ind. App. 1980),

where the court noted in tracing these developments:

Whatever may in general be considered pornography

or “hard core” obscenity under the test thus established

by the United States Supreme Court, it does seem

clear, pursuant to that Court’s guidelines, that “nudity

alone is not enough to make material legally obscene.”

Jenkins v. Georgia, supra 418 U.S. at 161. And see, e.g.,

nudist magazine cases such as Sunshine Book Co. v.

Summerfield, 355 U.S. 372, 78 S. Ct. 365, 2 L.Ed.2d

352 (1958), in which the Court held nudist magazines

available to the general public were not obscene for

purposes of federal postal legislation, despite the

appearance therein (as noted by the lower court) of

“photographs of naked, men, women, and children,”

and, further, despite a determination by the Post Office

Department fact-finder that such magazines could not

be legally distributed. Sunshine Book Co. v. Summer-

field, (D.C.Cir 1957) 249 F.2d 114.

As noted above, the photograph in the instant case

involves nothing more than nudity, in that it depicts

neither sexually provocative gestures, nor any close-up

of the genital region.

413 N.E.2d at 653. Accord People v. Biocic, 80 Il App.2d 65,

224 N.E.2d 572 (1967) (nudist magazines).

The law has not for a long time ascribed any illegality to

nudity alone absent circumstances or environments where

regulation is otherwise appropriate. Schad v. Borough of

Mount Ephraim, 452 U.S. 61 (1981); American Booksellers

Assoc., Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985), affd,

475 U.S. 1001 (1986); Williams v. Kleppe, 539 F.2d 803, 806-

07 (1st Cir. 1976), affg 400 F. Supp. 122, 127 (D. Mass. 1975).

See also Craft v. Hodel, 683 F. Supp. 289 (D. Mass. 1988),

appeal docketed, No. 88-1438 (1st Cir. July 18, 1988).

Whether that choice of lifestyle is exercised in the home, at

a private nudist resort, or at a traditional nude beach, the

practice of social family nudism is a protected and recog-

nized choice by individuals who retain the fundamental

liberty to be left alone by their government. Bruns v

Pomerleau, 319 F. Supp. 58 (D. Md. 1970). As Clare Boothe

Luce is said to have observed, “|clensorship, ‘like charity,

should begin at home; but unlike charity, it should end

there’” Quoted in Faloona v. Hustler Magazine, Inc., 607 F.

Supp. 1341, 1361 (N.D. Tex. 1985), aff'd, 799 F.2d 1000 (5th

Cir. 1986), cert. denied, 107 S. Ct. 1295 (1987).

Rather than target criminal behavior, abuse and exploi-

tation as is the case in nearly every other state, as well as

federal, statutory scheme (see New York v. Ferber, 458 U.S.

at 749-750 n.2), the prior Massachusetts statute rested

upon the unsupportable expedient of banning child nudity

itself. Statutes such as those examined in Ferber, on the

other hand, provide tried and true methods of directly

attacking and prosecuting the evils to which they are

directed. See, eg., United States v. Various Articles of

Obscene Merchandise, 460 F. Supp. 826 (S.D.N.Y. 1978);

State v. Jordan, 665 P2d at 1284 (Utah 1983) (distinguish-

ing mere nudity from child pornography); Freeman v.

Commonwealth, 233 Va. 301, 288 S.E.2d 461 (1982) (child

pornography statute construed to require lewd exhibition of

a child’s genitals); Goodmakers v. State, 450 So. 2d 888 (Fla.

App. 1984) (nudity distinguished from lewd exhibition).

Our courts have wisely followed a course of carefully

defining the offensive by virtue of acts which offend, retain-

ing a scienter requirement expressed in language such as

that which proscribes “lewd exhibition of the genitals,

“exhibition calculated to offend or affront,” and the like.

E.2., United States v. Various Articles of Obscene Merchan-

dise, 460 F. Supp. 826 (S.D.N.Y. 1978). Nudists view these

accepted qualifications to be critically important to the

protection of our lifestyle and to the protection of our

children, their health and well-being. The Massachusetts

statute stigmatizes nudity in a way nudist families find

unacceptable. Such a law fails to take into account and

allow for very real differences of attitude and intent which

surround the photographic creation on the part of both the

photographer and his or her subject. See Faloona v. Hustler

Magazine, Inc., 607 F. Supp. 1341 (N.D. Tex. 1985), aff'd, 799

F.2d 1000 (5th Cir. 1986), cert. denied, 107 S. Ct. 1295 (1987);

Lerman v. Flynt Distributing Co., Inc., 745 F.2d 123 (2d Cir.

1984), cert. denied, 471 U.S. 1054 (1985). Cf. Shields v.

Gross, 58 N.Y.2d 338, 448 N.E.2d 108 (1983). And, as Justice

Rhenquist pointed out, “[I|]t would be wholly at odds with

... Miller to uphold an obscenity conviction based upon a

defendant's depiction of a woman with a bare midriff, even

though a properly charged jury unanimously agreed on a

verdict of guilty.” Jenkins v. Georgia, 418 U.S. at 161.

Massachusetts’ attempt to categorize the visual por-

trayal of child nudity as unprotected expression is unwise

as well as unconstitutional. The New York statute in Ferber

contained exceptions for medical and artistic works which

are broader than those provided for by Massachusetts. The

reason this Court did not invalidate the New York law was

because that statute was still narrowly and carefully

directed at pornographic, exploitative material and its

boundaries would not be extended. New York v. Ferber, 458

U.S. at 773. Perhaps the Ferber majority's most important

point is the following: “Nor will we assume that New York

courts will widen the possibly invalid reach of the statute

by giving an expansive construction to the proscription on

‘lewd exhibition|s] of the genitals.” Jd. This cautionary

assumption is completely ignored by the prior version of

§29A, which also left no “alternative channels” for legiti-

mate photographic expression. Arcara v. Cloud Books, Inc.,

478 U.S. 697 (1986).

III. STATUTES PROSCRIBING NUDITY OF CHIL-

DREN MUST TARGET SEXUAL CONDUCT OR

EXPLOITATION.

The statute declared unconstitutional below demon-

strates a serious additional problem. Lacking a clear focus

on sexual exploitation, it invites a substantial risk of

diluting resources and diverting attention from the serious

matters of real abuse which everyone agrees should be

addressed. See generally Besharov, “Doing Something”

About Child Abuse: The Need to Narrow the Grounds for

State Intervention, 8 Harv. J. L. & Pub. Pol’y 539, 555 (1985)

(“While trying to protect maltreated children, society must

protect the traditional American values of personal freedom

i fe ee eee er eo hee

“—

- i -

and due process.”) and 567-72. See also statement of Ken-

neth Lanning, supra, note 14, at 31:

Senator Specter. And by sexually explicit you mean

what?

Mr. Lanning. The biggest problem area that you have

in defining sexually explicit is simple nudity. It would

probably have to be more than simple nudity. It would

involve sexual conduct... .

Indeed if the Petitioner means what it says that “it is not

necessary to rely on a mere ‘hunch’ that the state will

‘probably not enforce the statute against individuals who

take innocuous photographs’ (Brief for Petitioner at 30 n.29

[emphasis added] and Appendix),'!? then a more narrowly

focused statute can be just as effective as ever and the

Petitioner need not campaign for reinstatement of the

previous version of the law. Your amicus welcomes such

assurance, believing that the same would apply to the

interests set forth herein. If, on the other hand, the State

seeks to reinstate a mandatory outright ban on all child

nudity as an expedient to its prosecutions, then this Court

must stay the hand of the censor to prevent the chilling

effect of such impermissible restraint. See Secretary of

State of Maryland v. Joseph H. Munson Co., 467 U.S. 947,

964-68; Globe Newspaper Co. v. Superior Court, 457 U.S.

596, 607 (1982).!8

17 Such assurances seem disingenuous at best in light of Petitioner's bald

assertions contained in Part II B of its Brief, that “the production of photo-

graphs that depict children . . . posed in a state of nudity is sexual exploitation”

(Brief for Petitioner at 18) or “regardless whether the photograph depicts actual

sexual activity or the exhibition of a child nude, a child . . . has been victimized.”

Id. at 20. One wonders then about the fate of Edward Weston’s justifiably

famous photograph of his son Neil. Would this, too, be banned in Boston? 1 E.

Weston, Daybooks at Plate 20 (Aperture 1973).

18 This is also not to say that this amicus necessarily agrees with the state's

assertion that the Court may rely upon the history of enforcement of this kind

of statute for its constitutional salvation. Freedman v. Maryland, 380 U.S. 51

(1965). Cf. Frisby v. Schultz, 56 U.S.L.W. 4785 (U.S. June 29, 1988).

The Massachusetts statute places the burden upon indi-

vidual members of the public to guess whether their

behavior is innocent or felonious. When nudity itself is

prohibited or substantially conditioned, the statute no

longer affects either the simplest photographs or great

artistic works by accident, but reaches families and their

friends who have taken vacation snapshots to the drug

store. The state must therefore be held to the constitutional

requirement, unchanged by Ferber, that “[njo 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.” Miller v. California,

413 US. at 27.

thin a —_- ti Sia

CONCLUSION

For the reasons set forth herein, your amicus curiae

respectfully submits that the Supreme Judicial Court of

Massachusetts properly declared the statute in question

unconstitutional and its decision should be affirmed.

Respectfully submitted,

ROBERT T. PAGE*

General Counsel for the American

Sunbathing Association, Inc.

540 Steele Park Building

50 South Steele Street

Denver, Colorado 80209

Telephone: (303) 393-0433

American Sunbathing Association, Inc.

1703 North Main Street

Kissimmee, Florida 32743

(407) 933-2064

“Counsel of Record

DATED: 9-14-88

APPENDIX A

HOUSE—No. 5555

THE COMMONWEALTH OF MASSACHUSETTS

In the Year One Thousand Nine Hundred and Eighty-Eight.

ACT RELATIVE TO CHILD SEXUAL EXPLOITATION.

Be it enacted by the Senate and House of Representatives in General

Court assembled, and by the authority of the same, as follows:

SECTION 1. Chapter 272 of the General Laws as appearing in

the 1986 Official Edition, is hereby amended by striking out

section 29A, and inserting in place thereof the following sec-

tion: —

Section 29A. Sexual Exploitation of Children.

(a) Whoever, either with knowledge that a person is a child

under eighteen years of age or while in possession of such facts

that he should have reason to know that such person is a child

under eighteen years of age, and with lascivious intent, hires,

coerces, solicits or entices, employs, procures, uses, causes,

encourages, or knowingly permits such child to pose or be

exhibited in a state of nudity, for the purpose of representation or

reproduction in any visual material, shall be punished by imprison-

ment in the state prison for a term of not less than ten nor more

than twenty years, or by a fine of not less than ten thousand

dollars nor more than fifty thousand dollars, or by both such fine

and imprisonment.

(b) Whoever, either with knowledge that a person is a child

under eighteen years of age or while in possession of such facts

that he should have reason to know that such person is a child

under eighteen years of age, hires, coerces, solicits or

entices,employs, procures, uses, Causes, encourages, or know-

ingly permits such child to participate or engage in any act that

depicts, describes, er represents sexual conduct for the purpose

of representation or reproduction in any visual material, or to

engage in any live performance involving sexual conduct, shall be

punished by imprisonment in the state prison for a term of not less

than ten nor more than twenty years, or by a fine of not less than

ten thousand dollars nor more than fifty thousand dollars, or by

both such fine and imprisonment.

incapable of consenting to any conduct of the defendant for which

said defendant is being prosecuted.

(d) For the purposes of this section, the determination whether

the person in any visual material prohibited hereunder is under

eighteen years of age may be made by the personal testimony of

such person, by the testimony of a person who _ produced,

processed, published, printed or manufactured such visual mate-

rial that the child therein was known to him to be under eighteen

years of age, or by expert medical testimony as to the age of the

person based upon the person's physical appearance, by inspection

of the visual material, or by any other method authorized by any

general or special law or by any applicable rule of evidence.

(e) The provisions of this section are severable, and if any of its

provisions shal! be held unconstitutional by any court of competent

jurisdiction, the decision of such court shall not impair any of the

remaining provisions.

SECTION 2. Chapter 272 of the General Laws as appearing in

the 1986 Official Edition, is hereby further amended by striking

out section 29B, and inserting in place thereof the following

section: —

Section 29B. Dissemination of Visual Material Involving Sexual

Exploitation of Children.

(a) Whoever, with lascivious intent, disseminates any visual

material that contains a representation or reproduction of any

posture or exhibition in a state of nudity of a child who is under

eighteen years of age, knowing the contents of such visual

material or having sufficient facts in his possession to have

knowledge of the contents thereof, or has in his possession any

such visual material knowing the contents or having sufficient facts

in his possession to have knowledge of the contents thereof, with

the intent to disseminate the same, shall be punished in the state

prison for a term of not less than ten nor more than twenty years

or by a fine of not less than ten thousand dollars nor more than

fifty thousand dollars or three times the monetary value of any

economic gain derived from said dissemination, whichever is

greater, or by both such fine and imprisonment.

(b) Whoever disseminates any visua! material that contains a

representation or reproduction of any act that depicts, describes,

or represents sexual conduct participated or engaged in by a child

who is under eighteen years of age, knowing the contents of such

visual material or having sufficient facts in his possession to have

knowledge of the contents thereof, or whoever has in his posses-

sion any such visual material knowing the contents or having

sufficient facts in his possession to have knowledge of the contents

thereof, with the intent to dissiminate she same, shall be punished

in the state prison for a term of not less than ten nor more than

twenty years or by a fine of not less than ten thousand dollars nor

more than fifty thousand dollars or three times the monetary

value of any economic gain derived from said dissemination,

whichever is greater, or by both such fine and imprisonment.

the child in any visual material prohibited hereunder is under

eighteen years of age may be made by the personal testimony of

such child, by the testimony of a person who produced, pro-

cessed, published, printed or manufactured such visual material

that the child therein was known to him to be under eighteen years

of age, by testimony of a person who observed the visual material,

or by expert medical testimony as to the age of the child based

upon the child’s physical appearance, by inspection of the visual

material, or by any other method authorized by any general or

special law or by any applicable rule of evidence.

(d) In a prosecution under this section, a minor shall be deemed

incapable of consenting to any conduct of the defendant for which

said defendant is being prosecuted.

provisions shall be held unconstitutional by any court of competent

jurisdiction, the decision of such court shall not impair any of the

remaining provisions.

SECTION 3. Section 31 of Chapter 272 of the General Laws as

appearing in the 1986 Official Edition, is hereby amended by

inserting the following definition after the definition of “Knowing”

and before the definition of “Minor”: —

“Lascivious intent”, a state of mind in which the sexual gratifica-

tion or arousal of any person is an objective. For the purposes of

prosecution under this chapter, proof of lascivious intent may

include, but shall not be limited to, the following:

(1) whether the circumstances include sexual behavior, sexual

relations, infamous conduct or a lustful or obscene nature, devia-

tion from accepted customs and manners, or sexually oriented

displays;

2 A Rl Oe

(2) whether the focal point of a visual depiction is the child’s

genitalia, pubic area, or breast area of a female child;

(3) whether the setting or pose of a visual depiction is generally

associated with sexual activity;

(4) whether the child is depicted in an unnatural pose or

inappropriate attire, considering the child’s age;

(5) whether the depiction denotes sexual suggestiveness or a

willingness to engage in sexual activity;

(6) whether the depiction is of a child engaging in or being

engaged in sexual conduct, including, but not limited to, sexual

intercourse, unnatural sexual intercourse, bestiality, masturba-

tion, sado-masochistic behavior, or lewd exhibition of the genitals.

SECTION 4. Section 31 of Chapter 272 is hereby further

amended by striking out the definition of “Minor”, and inserting in

place thereof the following definition: —

“Minor”, a person under eighteen years of age.

SECTION 5. Section 31 of Chapter 272 is hereby further

amended by striking out the definition of “Nudity”, and inserting in

place thereof the following definition: —

“Nudity”, uncovered or less than opaquely covered human

genitals, pubic areas, the human female breast below a point

immediately above the top of the areola, or the covered male

genitals in a discernibly turgid state. For purposes of this defini-

tion, a female breast is considered uncovered if the nipple or areola

only are covered.

SECTION 6. Section 31 of Chapter 272 is hereby further

amended by striking out the definition of “Visual material:, and

inserting in place thereof the following definition: —

“Visual material”, any motion picture film, picture, photograph,

videotape, any book, magazine, or pamphlet that centains pic-

tures, photographs or similar visual representations or reproduc-

tions. Undeveloped photographs, pictures, motion picture films,

videotapes and similar visual representations or reproductions

may be visual materials notwithstanding that processing, develop-

ment or similar acts may be required to make the contents thereof

apparent.

SECTION 7. Section 31 of Chapter 272 is hereby further

amended by inserting the following definition after the definition of

“Matter” and before the definition of “Sexual conduct”: —

“Performance”, any play, dance, exhibit, or such similar activity

performed before one or more persons.

SECTION 8. Section 31 of Chapter 272 is further amended by

striking out the definition of “Sexual conduct”, and inserting in

place thereof the following definition: —

“Sexual conduct”, human masturbation, sexual intercourse,

actual or simulated, normal or perverted, any lewd exhibitions of

the genitals, flagellation or torture in the context of a sexual

relationship, any lewd touching of the genitals, pubic areas, or

buttocks of the human male or female, or the breasts of the

female, whether alone or between members of the same or

opposite sex or between humans and animals, and any depiction or

representation of excretory functions in the context of a sexual

relationship. Sexual intercourse is simulated when it depicts

explicit sexual intercourse which gives the appearance of the

consummation of sexual intercourse, normal or perverted.

SECTION 9. The provisions of this section are severable, and if

any of its provisions shall be held unconstitutional by any court of

competent jurisdiction, the decision of such court shall not impair

any of the remaining provisions.

— 7”

APPENDIX 6B

SS 960 00 RRR 06ClUl (RR

WELCOME

TO OUR WORLD

Of course you are curious

about nudism. Most people

are. This ASA publication has

been designed to help you

separate fact from fiction. It

presents a true picture of

nudism as it is enjoyed

worldwide.

your family w

our lovely re

Right now, fin

chair, take off

have to start

relax and lear

nudism.

The nudist phi

simple: being

natural. Nudi

Nudists are not opposed to

wearing clothes. There are

many valid reasons for doing

so. Protection against the

weather is one. Another is for

safety while working. Have

you ever tried to fry bacon in

the nude? Sanitation and

adornment are other reasons

for wearing something

Nudists do not (as some peo

ple believe) check their

clothing at the gate. Simply

put — “clothed when pra

unclothed when

three other couples who had

experienced Naturism in the

Old Country. Together, they

found an isolated spot upriver

from New York City and on

Labor Day of 1929, North

American social nudism was

born

Later that year, Kurt formed

“The American League for

Physical Culture” which even-

tually became the American

Sunbathing Association Inc.

But, America was very con-

servative then and each nudist

outing carried a real threat of

being raided by local officers.

The ASA spent much of its

time and several thousands of

dollars in the courts until

finally in the late 50’s it be-

came safe to enjoy nudism at

private parks. Still, today, the

ASA retains attorneys to guard

against infringements of your

rights to enjoy nudism.

American nudism has

changed dramatically from

Kurt Barthel’s original ideas

of health, exercise and rigid

diet. Today’s nudist could

simply be described as some-

one who enjoys outdoor recre-

tion totally free of restrictive

othing. To relax and sun-

athe nude is to let yourself

free!

o belong to

ubs all over North

ca. Being a member of

e American Sunbathing

Association brings you many

benefits. A few are listed below

@ The prestige of belonging to

a strong national organization

@ A free subscription to The

Bulletin, the ASA monthly

newspaper

@ Protect from legal harass-

ment while on ASA grounds

@ Discounts at ASA parks

@ Membership in the Interna

tional Naturist Federation

@ Right to participate in the

ASA annual and regional con

ventions which brings mem-

bers together in an atmosphere

of congeniality and athletic

competition.

Aids new clubs

mation and plans.

@ Maintains a mail

division for specialty

available only from the

parks vary

resorts.

ded from the

cities providing

r its members. One

ristic you will find at

s be they large or

is a warm, friendly

cookouts and a

specifically for teenagers s

as dances and sporting events.

Food: A snack bar/restaurant

is available at most parks for

those without cooking

ilities.

ms/Showers: Nudist

provide clean restroom

ower facilities.

n Facilities: Nudist

ave overnight accom-

ns that range from a

motel type room to

mfortable apartments.

ks have tenting areas

st parks have facilities

camping.

Special Events: Various

special events are scheduled

each year to bri

toget

conge

PEPE

about it that lam

offer my frieng

The fre PE

clotias

f beliefs

udist philosoph

We respect each 5

dividuality and our

esteem is enhanced

ability to accept ourse as

we really are. One begins to

realize that the “self” which

is being shared and appre-

ciated by friends is that of an

integrated, whole person, and

not the “image” conveyed by

clothing. We find our friend-

ships are enhanced and relax-

ation is easily achieved in

this environment. A certain

equalization comes from tk

disappearance of socig

distinctions which

stated by clotbhj

fidence ing

accept g

phys

living

the moé

Childre

ronment t

developme self-

image. Their curiosity about

male and female differences is

satisfied. They view their

adult role models as real and

caring human beings.

Nudism is a form of self-ex

pression. It is a statement that

this is “me” and I feel so good

arly mem-

ally allows

ase of club grounds.

ainded Clubs:

-landed clubs do not own

br lease grounds. Members of

non-landed clubs generally

visit landed clubs as a group

or hold social events, nude or

clothed, at private homes,

restaurants or entertainment

centers. Some clubs have

made arrangements with

their Y.M.C.A. or Health

Center for the purpose of

holding swim events.

Non-landed clubs tend to be

ours of friendly, congenial

people who enjoy getting

ogether to share their com-

set, — the nudist

sony

If you g

conta

in Ki

also reg

thro

and

this ® ite

us atl St.,

Kissimme

32743-3396. ll send you

our list of clubs.

Next, you should contact a

club near you and arrange for

a visit. When writing a club,

it is best to enclose a self-

addressed stamped envelope

for the club’s use. If you decide

to join that club your dues

will include membership in

both the National and Reg-

ional Associations. Also in-

cluded at no additional cost

will be your membership in

the International Naturist

Federation. At that time, yo

should receive from the cl

a temporary ASA memb

card entitling you to

member privileges

thirty days you

your permang

monthly p

Bulletin

Remey

must

Pleas

ship d

office.

other p

the Na

the Ref

members

Introducto

We reali a

variety of reas you 0

not be ready to fully p

pate at this time. For

reason we offer you a

tunity to become a SPQ

of nudism through our nati

office.

A Sponsor receives an ide

tification card, a copy of the

current issue of the ASA Park

Guide, and aone-year subscrip-

tion to our monthly nudist

newspaper, The Bulletin

Although sponsor status

does not guarantee access to

all ASA nudist parks, it

usually serves as an introduc

tion to the club for the purpose

of trial visits.

Should you later become a

full member of the ASA, a

pro-rated portion of the unused

sponsor status will be refunded

to you, upegimeturn of your

spong

g NUDIST

ASA by

n the

are not

Aritable

br federal

Trposes.

REGIONALS

[ibeASA DIVISONS

» Sunbathing

' ivided into six

ms which

he forma-

udist

areas.

s annual or

ness meet-

and

h large

liminary

ASA National

eld in August of

each regional, there

avidual Public Rela-

pams which help

be public in

M sboro,

NORTHWEST SUN-

BATHING ASSOCIATION

2606 Third Street

Tillamook, OR 97141

SOUTHWESTERN SUN-

BATHING ASSOCIATION

133

Point, TX 75169

ERN CANADIAN

ATHING

ATION

| Station M

, AB, T2P 2K9

ERN SUNBATHING

LATION

Box 393

on, CA 92324

visit the park without

his/her spouse?

A: This is rarely permitted.

Family nudism is exactly

that. Your first visit to a

nudist park should be a

shared experience.

Q@: Are unmarried adults

eligible for

membership?

A: Yes, but individual parks

have their own rules. It is

best to check with them.

Q: Will my picture be

taken?

gen. AND ANSWERS

: What special prepara-

tions should I make

before visiting a nudist

park?

A: Generally none at all,

apart from those you

would normally make to

go anywhere.

Q: Are children likely

be shocked by their

first sight of nudists?

A: No. Children are natu

nudists and usually

to it with minimum

adjustment.

What should I brin

Bring towels, comfortab

footwear, suntan lotion

and sunglasses. You might

also want to bring lounge

chairs, a hat, something to

read and any sporting

equipment you desire.

What is the cost? nudism?

This varies from park to A: None whatever. Nudists

- represent all major faiths

most of the lesser

all the pictures you

wish of your own family.

Q: Can I expect any real

health benefits from

nudism?

: Nudism embraces tradi-

tionally healthy activities

such as swimming, hiking,

volleyball, and outdoor

ists usually

nce it themselves. A

No park will ever

publicize your presence

without your explicit

Sow wig , living. Mental health is

Q: Is it likely my wife improved by the positive

would be improperly attitudes about self-

— approached at a nudist image, healthy sexuality,

Birore: park?

else will. Your personality

relist from stress and just

on.

A: Of course not. If such a

thing were to oecur, yg

will be noticed more than blem bu

any scar. embarrassm aa to nudity

Q: My figure, to say the tremely rag nel 4 ally

least, is less than ‘ ate

perfect. Will I feel out of :

place? PereBeen

A: About one figure in twen lism

ty seen at a nudist park z general

will be exemplary; the bmen

the

ir nip-

Ring childbirth and

breastfeeding more comfor-

table. Eyesight is improved by

exposure to natural light. The

bedy’s circulation may be im-

proved by the lack of constric-

tive clothing.

rest will be like people

everywhere. Actually, a

person’s physical propor

tions mean less in nudist

parks than they do

elsewhere. Many nudists

(male and female) will

never take any prizes for

physica! beauty. Ladies

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.