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Nevertheless, great progress can be achieved by taking images of giant planets orbiting much younger objects. Because giant planets a few tens of millions of years old are much hotter and brighter than their older brethren, they can be much more easily detected. Moreover, as the first tens of millions of years are considered to have been a critical period in the formation of Earth and of our own solar system, the study of nearby young planetary systems provides astronomers with invaluable insight on our own origins, something that is difficult if not impossible to decipher from investigation of old, mature planetary systems.Several surveys are therefore currently in progress that particularly aim at finding and taking direct images of sub-stellar companions - brown dwarfs and exoplanets - close to very young objects. Last year, an international team of astronomers [2] reported the first image of a Giant Planet Companion to 2M1207. On NACO/VLT images obtained in April 2004, they detected a faint reddish speck of light in the close vicinity of this young brown dwarf member of the 8 million year old TW Hydrae Association. The feeble companion, now called 2M1207b, is more than 100 times fainter than the brown dwarf, 2M1207A. The spectrum of the companion presents the strong signature of water molecules. Based on the infrared colours and the spectral data, evolutionary model calculations lead to the conclusion that 2M1207b is a 5 Jupiter-masses planet [3]. Its mass can be estimated also by use of a different method of analysis which focuses on the strength of its gravitational field; this technique suggests that the mass might be even less than 5 Jupiter mass.

We turn at once to the magazine itself. Its text, illustrated by numerous photographs of naked adults, proclaims the supposed virtues of nudism as a "pattern of life." One could hardly suggest that the articles in the magazine are provocative or even in bad taste. fn. 5 The publication admittedly makes no effort to conceal either male or female genitals, and several of the poses seem contrived to preserve genital exposure at the expense of aesthetic considerations. Most of the pictures, however, depict entirely innocuous outdoor activities at a nudist colony or sunbathing camp; none of the photographs displays any form of sexual activity. fn. 6 Viewed as a whole (Roth v. [67 Cal. 2d 795] United States, supra, 354 U.S. at p. 489 [1 L.Ed.2d at p. 1509, 77 S.Ct. 1304]), the work is in no sense calculated to stimulate a predominantly sexual response. On the contrary, the static and wooden quality which prevents INS #5 from rising to the level of art simultaneously lifts it above the level of pornography. In the words of Penal Code section 311, we do not find that, "taken as a whole," the "predominant appeal" of the magazine, including its depiction of nude adults, though revealing, "is to prurient interest, i.e., a shameful or morbid interest in nudity ... which goes substantially beyond the customary limits of candor." (Italics added.)

[3] Since the "dominant theme of the material taken as a whole" does not appeal to "a prurient interest in sex," INS #5 could not be deemed obscene even if it were "patently offensive" and "utterly without redeeming social value." (Memoirs v. Massachusetts (1966) 383 U.S. 413, 418 [16 L. Ed. 2d 1, 6, 86 S. Ct. 975].) [2b] We need not explore these issues at greater length, however, since the question before us is not truly an open one. In Manual Enterprises v. Day (1962) 370 U.S. 478 [8 L. Ed. 2d 639, 82 S. Ct. 1432], and in Sunshine Book Co. v. Summerfield (1958) 355 U.S. 372 [2 L. Ed. 2d 352, 78 S. Ct. 365] (per curiam), fn. 7 the Supreme Court summarily reversed obscenity convictions involving magazines more crudely explicit fn. 8 and certainly more vulgar fn. 9 than INS [67 Cal. 2d 796] #5. On June 12, 1967, the court reaffirmed these holdings by reversing, on the authority of Sunshine Book Co., a Virginia judgment involving similar material. (Rosenbloom v. Virginia (1967) 388 U.S. 450 [18 L. Ed. 2d 1312, 87 S. Ct. 2095] (per curiam).) Even more recently, the United States Supreme Court has reversed decisions of the federal circuit courts which held that magazines containing pictures of nude males and females focusing on the genitalia were obscene. Indeed, one of the magazines there involved is the same as that which is now before us ("International Nudist Sun"), although we deal with a different issue of it. (Central Magazine Sales, Ltd. v. United States (1967) 389 U.S. 50 [19 L. Ed. 2d 49, 88 S. Ct. 235], reversing per curiam United States v. 392 Copies of Magazine Entitled "Exclusive" (4th Cir. 1967) 373 F.2d 633; Potomac News Co. v. United States (1967) 389 U.S. 47 [19 L. Ed. 2d 46, 88 S. Ct. 233], reversing per curiam United States v. 56 Cartons Containing 19,500 Copies of Magazine (4th Cir. 1967) 373 F.2d 635.)

The United States Supreme Court has wisely recognized that ultimately the public taste must determine that which is offensive to it and that which is not; a public taste that is sophisticated and mature will reject the offensive and the dull; it will in its own good sense discard the tawdry, and [67 Cal. 2d 797] once having done so, the tawdry will disappear because its production and distribution will not be profitable. Understandably, such maturity does not come quickly or easily, and, in a time when the strictures of Victorianism have been replaced by wide swings of extremism, it seems hopelessly remote.

[4] Yet this court is bound, of course, by the decisions of the United States Supreme Court. That court has imposed its prohibitions only at the outer limits of the area of publication, leaving to the public the task of voluntarily casting out the offensive. That court has held that the representation of the nude human form in a nonsexual context is not obscene. The Supreme Court has decided that the judiciary cannot engage in the task of placing legal fig leaves upon variegated presentations of the human figure. That court has told us that no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene. In the materials before us we find some of the poses of the subjects to be inexcusably repulsive, and we trust that a discerning public will discard and reject them. But the decisions of the United States Supreme Court tell us that the task of rejection lies not with us but with the public.

Taken as a whole, the predominant appeal is to prurient interest which goes substantially beyond customary limits of candor and the magazine is utterly without redeeming social importance. According to small print at the bottom of the cover it purports to be "an educational, cultural, and scientific publication, for the advancement of nudism," and briefly included among its pages of pictures is editorial material replete with pious platitudes about the beneficial aspects of sunbathing and the freedom and relaxation to be gained by families' participation in outdoor games and activities. fn. 1 But [67 Cal. 2d 798] the statement of such a purpose and the inclusion of such material belie its all too obvious purpose of appealing to prurient interest. The pages of this magazine contain no pictures of families engaging in outdoor games and activities. In fact, no children are portrayed, and the only suggestion of games is the inclusion of studio props which, like the text employed, are clearly designed as window dressing. The price of the magazine, $4.00, and the warning on its cover, "For Adults Only," are also indicative of what is the real purpose and interest of its purveyors. Sensual detail in the pictures is emphasized to a degree beyond contemporary or customary limits of candor, and the prurient emphasis on genitalia (often purposely denuded of all natural cover) belies the purveyors' purported interest in advancing the virtues of nudism.

The magazines which the court held nonobscene in Manual Enterprises v. Day, supra, 370 U.S. 478, consisted "almost entirely of photographs of young men in nude or practically nude poses handled in such a manner as to focus attention on their genitals or buttocks or to emphasize these parts ....' " (Clark, J., dissenting, at pp. 526- 527 [81 L.Ed.2d at pp. 668-669].) "[S]ome [of the pictures] showed ... pubic hair and others suggested what appeared to be a semi-erect penis ...; others showed male models reclining with their legs ... spread wide apart ...." (370 U.S. at p. 490, fn. 13 [8 L.Ed.2d at p. 648].) The court's "own independent examination of the magazines" led it "to conclude that the most that can be said of them is that they are dismally unpleasant, uncouth, and tawdry. But this is not enough to make them 'obscene.' " (Id., at pp. 489-490 [8 L.Ed.2d at pp. 647-648].) Only Justice Clark dissented. 041b061a72


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