“It is my conclusion that, with some exceptions to which I shall call attention
later on, the publications in evidence have the dominant effect and purpose of
showing not only without restraint, but with emphasis on normally private
areas, the nude figures of both men and women and that, to the average adult
person they are obscene within the meaning of the statute. In reaching that
conclusion I have taken many factors into consideration. The character of the printed
text in the publications is uniformly unobjectionable, although much of it is
in a foreign language and therefore not intelligible to most persons in this country.
I have taken into account the relationship of the pictures to the printed
articles, the size of the nude figures in the pictures, the relative number of
full front and side or back views, and the extent to which the genitals and
public areas have been covered or minimized by position, posture, distance from
the camera, use of light and shade, et cetera.
“The libeled books were imported for commercial purposes (They were imported solely to promote nudism and a considerable percentage sold to members of the American Sunbathing Association. Ed.) and were to be sold at a profit through the usual channels of distribution, principally on newsstands throughout the country. They were not, therefore, to be limited to members of the nudist cults, and must be judged by their effect upon the general public. In this connection, it is interesting to note that of the twenty-five publications introduced in evidence as exhibits for the plaintiff, eighteen have on the front cover prominently displayed nude pictures of well-developed, shapely young women. (To those unfamiliar with Sun & Health – the magazine is very similar to our own American Nudist Leader in pictorial content, although somewhat more reserved. Ed.) One would be naïve, indeed, not to appreciate the commercial value of displaying such front-cover material on the news stands. Although the avowed purpose of the books is to explain the nudist movement, its principles and its practices, there are relatively very few photographs of the mixed groups of all ages which ordinarily would be found in a nudist park. (The average issue of Sun & Health will contain more even more group pictures than are used in the average issue of ANL. Ed.) The great preponderance of the illustrations depicts shapely, well-developed young women appearing in the nude, mostly in front exposures.
“Without going into further detail, I find all of the publications, plaintiff’s Exhibits 1-25, inclusive, obscene and subject to condemnation and destruction, with the following exceptions: Plaintiff’s Exhibit 2, Die Neue Zeit, is not mentioned at all in the report of seizure of the customs service, but the Marshal’s return lists one hundred copies. It cannot be condemned without a record showing that it was a part of the seizure made by the customs service under the statute. I am of the view that, plaintiff’s Exhibit 3, Paradies, and plaintiff’s Exhibit 4, Paradies, are not obscene. In these publications some of the figures are clothed, and there is much a larger proportion of side and rear views. There are some shadow silhouettes; and for the most part, the critical areas are concealed, shaded, or minimized by posture of lighting. Also, even to one who claims no expert knowledge in the field, there appears to be a good-faith striving for artistic values in the posing and treatment of the subjects in some of the photographs. While they contain a few illustrations which I should regard as objectionable if considered b themselves, I cannot say that, taken as a whole the dominant effect or tone of the publications is obscene within the meaning of the statute.”
SAM M. DRIVER
United States District Judge
1 For convenience in the trial, the libellant was called the plaintiff and the claimant the defendant.Τhe same designations will be applied in this opinion.
(Source: The Original Nudist Newsletter, Issue Number 48, December 1955)
“The libeled books were imported for commercial purposes (They were imported solely to promote nudism and a considerable percentage sold to members of the American Sunbathing Association. Ed.) and were to be sold at a profit through the usual channels of distribution, principally on newsstands throughout the country. They were not, therefore, to be limited to members of the nudist cults, and must be judged by their effect upon the general public. In this connection, it is interesting to note that of the twenty-five publications introduced in evidence as exhibits for the plaintiff, eighteen have on the front cover prominently displayed nude pictures of well-developed, shapely young women. (To those unfamiliar with Sun & Health – the magazine is very similar to our own American Nudist Leader in pictorial content, although somewhat more reserved. Ed.) One would be naïve, indeed, not to appreciate the commercial value of displaying such front-cover material on the news stands. Although the avowed purpose of the books is to explain the nudist movement, its principles and its practices, there are relatively very few photographs of the mixed groups of all ages which ordinarily would be found in a nudist park. (The average issue of Sun & Health will contain more even more group pictures than are used in the average issue of ANL. Ed.) The great preponderance of the illustrations depicts shapely, well-developed young women appearing in the nude, mostly in front exposures.
“Without going into further detail, I find all of the publications, plaintiff’s Exhibits 1-25, inclusive, obscene and subject to condemnation and destruction, with the following exceptions: Plaintiff’s Exhibit 2, Die Neue Zeit, is not mentioned at all in the report of seizure of the customs service, but the Marshal’s return lists one hundred copies. It cannot be condemned without a record showing that it was a part of the seizure made by the customs service under the statute. I am of the view that, plaintiff’s Exhibit 3, Paradies, and plaintiff’s Exhibit 4, Paradies, are not obscene. In these publications some of the figures are clothed, and there is much a larger proportion of side and rear views. There are some shadow silhouettes; and for the most part, the critical areas are concealed, shaded, or minimized by posture of lighting. Also, even to one who claims no expert knowledge in the field, there appears to be a good-faith striving for artistic values in the posing and treatment of the subjects in some of the photographs. While they contain a few illustrations which I should regard as objectionable if considered b themselves, I cannot say that, taken as a whole the dominant effect or tone of the publications is obscene within the meaning of the statute.”
SAM M. DRIVER
United States District Judge
1 For convenience in the trial, the libellant was called the plaintiff and the claimant the defendant.Τhe same designations will be applied in this opinion.
(Source: The Original Nudist Newsletter, Issue Number 48, December 1955)
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