                                                                                                                           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Precedential or Non-Precedential: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.

                               16
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

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