OBSCENITY CRITERIA EXPLAINED BY JUDGE

In American Sunbather #150, we printed excerpts from the Philadelphia court decision (May 11, 1964), in which bona fide nudist magazines published by Outdoor American Corporation were summarily cleared of all charges of obscenity by Common-Pleas Judge David L. Ullman. Last month, in American Sunbather #153, we listed the complete obscenity findings in “nudist” magazines found objectionable in another Philadelphia court, August 12, 1964. In this issue, Judge John W. Lord specifically listed magazines purporting to represent the nudist philosophy and way of life, with comments as to why and in what way each was obscene and/or objectionable. Included in this list (none of which were published by Outdoor American Corporation) were such titles as Continental Nudist, Vol. 1 No. 1; Nudist Photo Field Trip No. 6; Sundial, Nos. 14 and 15 (Vol. 2 Nos. 8 and 9); Nude Living, #18; Urban Nudist, No. 7 & 8; Sun Era No. 7, etc. etc.

Due to the many requests we received for more information on the subject obscenity in nudist and pseudo-nudist magazines, we would like to print Judge Ullman’s complete directed verdict of “not guilty” – enumerating what is and what is not obscenity, and explaining in some detail why specific publications of Outdoor American Corporation contain “nothing” –in Judge Ullman’s own words – “that in any way could be construed as obscene.”

THE COURT

Ladies and Gentlemen of the Jury:

I am not going to charge you because I am taking this case away from your consideration on the issue as to whether these magazines which were offered in evidence Friday are or are not obscene.

I took these magazines with me over the weekend and I have gone through every one. In my opinion there is no question to be submitted to you as to whether or not these are obscene within the language of the statute which I will give to you, which would justify your bringing in a verdict that beyond a reasonable doubt this was obscene literature. In my opinion it cannot be so considered, and I am therefore granting the motion for a directed verdict of not guilty.

I think that you are entitled to know why and to understand what is going on here.

The present Act of the Pennsylvania State Legislature, the most recent one being the Act of October 20, 1959 Pamphlet Laws 1330, makes it a crime to sell, distribute, or knowingly advertise in any manner, any obscene literature, book, magazine, writing, photographs or any other written or printed manner of an obscene nature. Excuse me, but I am cutting out nine-tenths of the language which doesn’t refer to this case.

Then we come to the question of what is meant by the word “obscene” as a matter of law. The definition is: Obscene as used in this section means that which to the average person applying contemporary community standards has as its dominant themes, as a whole, an appeal to prurient interest.

Now let me take that more or less word by word because some of those are words of art and not words that we normally use in our every-day conversations.

The dominant theme means that overriding, principal purpose; not that you can pick out a small piece here and another piece there and say that sentence, that picture, is obscene and therefore the magazine is obscene. It must be the dominant theme. The controlling, overriding, major part of the magazine must be for the purpose of appealing to prurient interests.

This language is taken verbatim from the opinion of the United States Supreme Court which, after there had been considerable doubt as to what was meant by this language, the Supreme Court of the United States finally undertook to clarify it in 1957, two years before this statute was passed.

I think it might be helpful to you if I gave you the language of some antecedent, earlier Pennsylvania definitions of what was meant by by obscene.

There was an Act of 1957 which said that obscene literature consists of any picture, photographs, et cetera, which is unrelated to science, art of scientific study and taken as a whole– taken as a whole is not quite as strong a phrase as dominant theme–is indecent, lewd, lascivious and has the effect of inciting to lewdness or sexual crime.

In an earlier Act of 1959 it uses the language, anything that is lewd, lascivious, filthy, indecent or disgusting, a book, magazine, pamphlet, photograph and so forth.

Now what the United States Supreme Court said in defining some of the language which we have just referred to– before they get to the definition they said, obscene material is material which deals with sex in a manner appealing to prurient interests. Then it gives the definitions in a footnote of the world prurient which, I am sure, we will agree is an unusual word and requires definition.

It is defined variously as material having a tendency to excite lustful thoughts. Webster’s New International Unabridged Dictionary defines prurient in pertinent parts as follows: Itchy, longing, an uneasy desire or longing of persons, of itching, morbid or lascivious longings, of desire, curiosity or lewd propensity.

Then it goes further and pruriency is defined in pertinent part as follows: Quality of being prurient. That helps us not at all. That just uses the same word over again. Lascivious desire or thought.

A thing is obscene if considered as a whole its predominant appeal is to prurient interests, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.

The question before the Court there was what comes under the protection of our Federal Constitution under the Bills of Rights for freedom of speech in the press. And the Court points out that it is vital that the standards of judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interests. And it fives as their description the same language that is in our Pennsylvania Act – whether to the average person applying contemporary community standards the dominant theme of material taken as a whole appeals to prurient interests.

Then I think this should be read to you, too. This is also from the Supreme Court’s opinion quoting with approval the charge which the lower court gave to the jury.

The test is not whether it would arouse sexual desires or impure thoughts in those comprising a particular segment of the community, the young, the immature or the highly prudish, or would leave another segment, the scientific or highly educated, or the so-called worldly wise and sophisticated, indifferent and unmoved. The test is in each case is the effect of the book, picture or publication considered as a whole, not upon any particular class upon all those whom it is likely to reach.

In other words, you determine its impact on the average person in the community. The books, pictures, and circulars must be judged as a whole in their entire context, and you are not to consider detached or separate portions in reaching a conclusion. That, I think, is the meat and the gist of it. The opinion is a long and fairly complicated one, but I think I have given you as much as is needed.

Now why did I say to you that after going through them – and I read each one of these yesterday afternoon and I made some notes on each one of these as I went through them – the last one you were given is one called Sunbathing (American Sunbather). On the back of it it sets out what this particular publisher publishes, and altogether  there are seven different types – seven different but of the same type nudist magazines. This one is the only one that is published monthly. The others are published quarterly, that is four times a year. This one costs 60 cents. The others all cost either $1.00 or $1.25.

On the front page of each of them is the one that is likely to most attract somebody to buy the magazine. Here is another. Anybody who thought these magazines with the idea of getting prurient interests got cheated.

Mr. Myers, who was here before and is now in homicide, used to be in the fraud election, and I suggested to him there might be a good case to prosecute these people for fraud for getting them to buy these magazines and not getting what they thought was in them. These are not pictures of models, of beautiful girls completely nude. There are many pictures of both men, women and children who are completely nude. A considerable number of them are people who are well on in years. And as far as the ladies are concerned, I now understand why they wear girdles or corsets.

Here is a picture, for example, of fifteen women each of whom is as naked as a jay bird, none of whom I find very attractive. They are all people who go to and enjoy and take part in these nudist camps which at least in their philosophy or belief is a healthful way of getting together, healthful both physically and morally.

Here is another picture. That, for example, is the kind of a lady I think should be wearing a corset. This other picture on the next side is a bunch of youngsters, I would say, three, four, perhaps the oldest isn’t more than seven years old. There is certainly nothing to excite prurient interests there. And many of these pictures, by the way, are of families – father, mother and two or three children playing together, all of them without a stitch of clothing on.

A magazine is not made up only of pictures. As I pointed out to you in the Supreme Court of the United States opinion, you may not select something here and something there and say, well, I think that this is obscene under the definition. It is whether the dominant theme, the purpose of the whole – and you have got to consider the text, the words, as well as the pictures.

I have read them and I find nothing that in any way could be construed as obscene in any of the text. There are advertisements of other meetings or conventions to be held, reports – here is one the caption of which is, 1963’s Largest and Happiest Convention. And it gives a good write up they had.

There is an editorial here by the gentleman who was on the stand, Mervin Mounce. It is an editorial which has no word of lasciviousness or sex in it. It is a definition of their manner of thinking of the conventions that they hold. And you don’t have to agree with. But it is part of freedom of speech that they are allowed to print it. And there is no word be said to be obscene directly or indirectly.

The next article is, New England Nudists – Midwest Nudists are Hosts of ASA. I don’t know what ASA is but I will guess. American Sunshine Association or something like that.

And here is a bunch of those who got rewards, sitting holding medals – winners in their particular contests. They play basketball. They go swimming. They play volleyball.

Now here is another lady. She hasn’t got a thing on. But would anyone feel that that excited sexual desire on the part of anybody who looked at that picture? Or could it be said at least that it does it beyond a reasonable doubt, a reasonable doubt being defined as such as doubt as to cause you in considering a matter of the highest importance to yourself to pause and hesitate. If you did pause and hesitate, that would be a reasonable doubt. Now so much for this, I am not going to take too much time.

Let us take the next one. And by the way, on this first one I noticed that on their front page – here is a list of the editor, et cetera. The editor-in-chief is Mr. Mounce who was just on the stand. Among the contributing editors I notice there are several who have the title of Reverend and Honorable. And I presume both ministers and judges are basically decent.

The next one, going down to the list, is C-15, which is the Nude World. It deals with nudist camps or nudist goings-on not particularly in this country. But there is an article on nudist activities in Austria, England, in New Zealand and France, in Germany and Canada, and a group of statues which were erected in Norway of nude men and women. I do not think that it could be said that the dominant theme is to excite prurient interests. The next one is called the Naturist. The leading article is, I Saw My Wife Become a Nudist. Well, one of the men that took his wife along, she became converted.

I tell you as a matter of law that nudity in and of itself is not obscene. I do not see how could it reasonably be said that these photographs are obscene.

Here is a woman going through a series of exercises. And by the way, there are some very pretty girls here, though I regret to say they are rather rare. But there are also a very considerable number who are not particularly noteworthy for feminine beauty.

I made notes on all of these, but I see no reason why I should take you through sixteen of them which are substantially similar. There are two of them that are important from abroad. They are much thinner. They get 75 cents there. I don’t know why. It has somewhat more pictures and somewhat less text, but it does have both.

And then the one which I am astonished at, which is included, is this pamphlet, the Nudists. There is not any pictures in it. What it is is a booklet expanding their philosophy, their thinking, defining it. Once chapter is, The Movies and the Magazines, and another one is, The Law and Sunbathers. And I don’t know how many of you happen to read a very good detective story that was also a motion picture that came out a couple of years ago, Anatomy of a Murder². The name of the author was given as Robert Traver. The real name of the author was Judge Volger¹, who was a Justice of the Supreme Court of Michigan.

A Baptist minister, who used a crusade against sunbathing to collect some $75,000 for the crusade, got the police to make a raid on one of these nudist meetings. They were convicted before the jury and the conviction was reversed and set aside by the Supreme Court and part of the language which Judge Volger, alias Robert Traver, used in his opinion is as follows: The one big indecency in the whole case was the raid and actions of police officers in descending upon the camp like storm troopers. If nudism is illegal, art galleries and museums would have to turn to the cultivation of fig leafs, and that stalwart bane of the middle class respectability, the National Geographic Magazine, would have to be banished. It seems that we are now prepared to burn down the house of constitutionality safeguards in order to roast a few nudists. I will have none of it.

I will have none of it either. It is for those reasons which I have given, and I could give you a great deal more, including the fact that of two cases where nudist magazines were held to be obscene by the post office and were appealed to the Supreme Court, one of them being Mr. Mounce who is on the stand, the Supreme Court reversed both of them and set aside the finding that it was obscene.

I therefore direct you to bring in a verdict of not guilty on all counts with an exception, of course, to the Commonwealth.

(Source: The Nudist Newsletter, The Official Bulletin of the American Health Alliance, #154)

NOTES

¹ John D. Voelker (1903-91), not Volger as above stated
² Anatomy of a Murder (New York: St. Martin’s Press, 1958). Also a film based on the above best-selling novel, directed by Otto Preminger (1959)