In the libel action brought by the United States against the Danish
international nudist publication, Sun and
Health, and other nudist magazines of foreign origin, Judge Sam Driver of
the United States District court for the Eastern district of Washington,
Northern division, said, “The basic question presented is, whether such
publications are obscene and, as such, subject to forfeiture, confiscation and
destruction under the Provisions of Section 1305 of Title 19, U.S.C.A. That
section in part, provides that all persons are prohibited from importing into
the United States “’and obscene book, pamphlet, paper, writing,… print,
picture,’ etc. It authorizes seizure of prohibited publications by the
collector of customs and outlines the procedure for theor condemnation in the
United States District Court.
“Plaintiff (libellant)1 contends that the publications are obscene by reason of the photographs of nude men and women with which they are illustrated. The word ‘obscene’ is not capable of exact definition for the reason that its meaning depends upon prevailing mores at different times and in different places. However, in what may be termed the modern cases, the courts are are fairly well agreed upon the general principles which should govern in the application of the statute under consideration enactments which forbid transmission through the United States mails of obscene publications.
“Nudity is not per se obscene. It may properly be employed in works of art and medical and scientific treatises. A publication is not to be judged by one or two isolated illustrations or passages but is to be regarded as a whole. An effort should be made to ascertain and evaluate the dominant effect, and such dominant effect or tone determines its entire character. The effect upon children or upon persons of extraordinary susceptibility to evil influence is not decisive. The standard to be applied in the judgment of the average, normal, reasonable, prudent person of the community in which the publication is circulated.Ιf, at the time of such circulation, considered as a whole it offends the sense of propriety, morality, and decency of such average person, it is within the bar of the statute. Otherwise it is not. Guided by these general principles, and without having available any definite yardstick that can be applied, the trier of facts must draw the line as best he can between art and pornograph – between what is permissible and what is objectionable and obscene.
The difficulty in the present case, I think, arises principally froma difference of viewpoint. The libeled books, with one exception, are nudist publications designed to portray nudist practices and to secure new converts to the movement. Adherents of the cult conscientiously do not regard as objectionable the full display in mixed company of nude male and female bodies. But nudism is a deviation from the norm at the present time in the United States. Its practitioners are very much in the minority and cannot be said to represent the common viewpoint in this country. The average American, except for works of art or illustrations in medical journals and the like, regards stark nudity, with brazen display of the adult male and female genitalia, as indecent and shocking. This difference of viewpoint was brought out by the testimony of the witnesses in the trial. The defendant called two women, obviously quite respectable – one a mother and the other a grandmother (both grandmothers, Ed.), both members of a nudist organization – who testified that they saw nothing objectionable in the publications in evidence. On the other hand, two other respectable housewives (there was only one, the other was a man, Ed.) who appeared to be representative of the average person of the community, examined the same publications and found them to be indecent and obscene.
“Plaintiff (libellant)1 contends that the publications are obscene by reason of the photographs of nude men and women with which they are illustrated. The word ‘obscene’ is not capable of exact definition for the reason that its meaning depends upon prevailing mores at different times and in different places. However, in what may be termed the modern cases, the courts are are fairly well agreed upon the general principles which should govern in the application of the statute under consideration enactments which forbid transmission through the United States mails of obscene publications.
“Nudity is not per se obscene. It may properly be employed in works of art and medical and scientific treatises. A publication is not to be judged by one or two isolated illustrations or passages but is to be regarded as a whole. An effort should be made to ascertain and evaluate the dominant effect, and such dominant effect or tone determines its entire character. The effect upon children or upon persons of extraordinary susceptibility to evil influence is not decisive. The standard to be applied in the judgment of the average, normal, reasonable, prudent person of the community in which the publication is circulated.Ιf, at the time of such circulation, considered as a whole it offends the sense of propriety, morality, and decency of such average person, it is within the bar of the statute. Otherwise it is not. Guided by these general principles, and without having available any definite yardstick that can be applied, the trier of facts must draw the line as best he can between art and pornograph – between what is permissible and what is objectionable and obscene.
The difficulty in the present case, I think, arises principally froma difference of viewpoint. The libeled books, with one exception, are nudist publications designed to portray nudist practices and to secure new converts to the movement. Adherents of the cult conscientiously do not regard as objectionable the full display in mixed company of nude male and female bodies. But nudism is a deviation from the norm at the present time in the United States. Its practitioners are very much in the minority and cannot be said to represent the common viewpoint in this country. The average American, except for works of art or illustrations in medical journals and the like, regards stark nudity, with brazen display of the adult male and female genitalia, as indecent and shocking. This difference of viewpoint was brought out by the testimony of the witnesses in the trial. The defendant called two women, obviously quite respectable – one a mother and the other a grandmother (both grandmothers, Ed.), both members of a nudist organization – who testified that they saw nothing objectionable in the publications in evidence. On the other hand, two other respectable housewives (there was only one, the other was a man, Ed.) who appeared to be representative of the average person of the community, examined the same publications and found them to be indecent and obscene.
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