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Abercrombie & Fitch Ads Accused of Being "Obscene" as to Minors:

Dan Slater at the Wall Street Journal Law Blog points to this Virginia Beach Virginian-Pilot story:

Police, saying they were responding to citizen complaints, carted away two large promotional photographs from the Abercrombie & Fitch store in Lynnhaven Mall on Saturday and cited the manager on obscenity charges....

The citation was issued under City Code Section 22.31, [police spokesman Adam] Bernstein said, which makes it a crime to display "obscene materials in a business that is open to juveniles." ...

Bernstein confirmed that one depicts three shirtless young men from the back, walking through a field. The man in the lead appears to be about to pull up his jeans, which have slipped down enough to reveal his upper buttocks....

The other image is of a woman who is topless and whose "breast is displayed with her hand covering just the nipple portion," Bernstein said. "You could still pretty much see the rest of the breast."

The seizure was "prompted by several customer complaints, and the management of Abercrombie & Fitch was notified of those complaints," Bernstein said....

I'm pretty sure, though, that this prosecution is unconstitutional, not statutorily authorized, or both — as the Virginia Beach city attorney's office seemed to conclude when it said that it would recommend dropping the charges at the scheduled March 3 hearing. The relevant ordinance reads:

It shall be unlawful for any person to knowingly display for commercial purposes in a manner whereby juveniles may examine or peruse ... Any picture, photograph, drawing, sculpture, motion picture film or similar visual representation or image of a person or portion of the human body which depicts nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles ...
"Harmful to juveniles" is defined as:
Harmful to juveniles: That quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement or sadomasochistic abuse, when it:

(1) Predominantly appeals to the prurient, shameful or morbid interest of juveniles;
(2) Is patently offensive to prevailing standards in the adult community in the city as a whole with respect to what is suitable material for juveniles; and
(3) Is, when taken as a whole, lacking in serious literary, artistic, political or scientific value for juveniles.

Juvenile: Any person less than eighteen (18) years of age.

Nudity: A state of undress so as to expose the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered or uncovered male genitals in a discernibly turgid state.

Here's the problem: To be constitutionally unprotected obscenity (including the broader category of obscenity-as-to-minors, which may not be shown to minors even if it's protected as to adults), the material must do more than just depict nudity, even in a "prurient," "offensive," "value[less]" way — it must depict sex, excretion, or "lewd exhibition of genitals." "[A] portrayal of nudity is not, as a matter of law, a sufficient basis for a finding that a work is obscene," Price v. Commonwealth, 214 Va. 490 (1974), and in fact Miller v. California — the 1973 Supreme Court case that held that there is indeed an obscenity exception to the First Amendment — didn't give mere nudity as one of its examples of the "sexual conduct specifically defined by statutes" that could be restricted. (The Virginia Beach ordinance largely follows the Miller test but with the addition of "for juveniles" or "of juveniles" to each prong, which is what makes it an ordinance related to "obscene-as-to-minors" material; the one exception to this model is that it also adds "nudity" as one of the specifically defined forms of "sexual conduct.")

Likewise, the Court explicitly said in Jenkins v. Georgia, 418 U.S. 153, 161 (1974),

Our 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. Nothing in the movie falls within either of the two examples given in Miller of material which may constitutionally be found to meet the 'patently offensive' element of those standards, nor is there anything sufficiently similar to such material to justify similar treatment. While the subject matter of the picture is, in a broader sense, sex, and there are scenes in which sexual conduct including 'ultimate sexual acts' is to be understood to be taking place, the camera does not focus on the bodies of the actors at such times. There is no exhibition whatever of the actors' genitals, lewd or otherwise, during these scenes. There are occasional scenes of nudity, but nudity alone is not enough to make material legally obscene under the Miller standards.
And the Court likewise held that "Clearly all nudity cannot be deemed obscene even as to minors," Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975). "[U]nder any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene 'such expression must be, in some significant way, erotic.'" Nudity in the context of sex would be erotic, as would lewd exhibition of the genitals; a butt crack might be sexy in some contexts, but I doubt that it would be "significant[ly] erotic," and I suspect the courts would so rule even as to some exposure of the female breast. The Erznoznik Court's earlier mention that "The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited," seems to support that — a partially or even largely exposed breast probably doesn't qualify as "sexually explicit." See also Sebago, Inc. v. City of Alameda, 211 Cal. App. 3d 1372 (1989) (specifically applying the "nudity alone isn't obscene" rule as to a restriction on unsupervised distribution of obscene-as-to-minors material); Carl v. City of Los Angeles, 61 Cal. App. 3d 265 (1976) (same); State v. Cardwell, 539 P.2d 169 (Ore. App. 1975) (same).

It's also hard to see — even assuming the ordinance could apply to nudity without sex, excretion, or lewd exhibition of genitals — how depiction of a partly unclothed breast, or the top of a butt crack, "[p]redominantly appeals to the prurient, shameful or morbid interest of juveniles" ("prurient" in these contexts is just a synonym for "shameful or morbid"). Likewise, the Virginia law is that the third prong is satisfied "if a work is found to have a serious literary, artistic, political or scientific value for a legitimate minority of normal, older adolescents, then it cannot be said to lack such value for the entire class of juveniles taken as a whole"; my sense is that the pictures, though advertising, have serious artistic value for older adolescents.

But more importantly, it seems to me that absent something beyond mere nudity (even nudity that is titillating even though it lacks lewd exhibition of genitals), a picture can't be constitutionally treated either as obscene or as obscene-as-to-minors.

UPDATE: Thanks to reader Tracy Johnson, we bring to you the following nude breast — special bonus: Sex + Violence! — though one with serious political value (since it's on the flag of the Commonwealth of Virginia):

Tracy Johnson (www):
As was said on a local AM morning radio program out here in Virginia Beach. They could instead display the Virginia state flag and get the same complaint.
2.7.2008 2:54pm
Smokey:
It's a good thing the gov't is watching out for the kids. When they shut down A&F ads, wherever will the kids go to see naked people?
/s
2.7.2008 3:06pm
Hovsep Joseph (mail) (www):
This is exactly the kind of lawsuit that businesses like A&F love. They'll make much more for their money hiring a defense lawyer here than they'd get spending it on an ad in some magazine.
2.7.2008 3:18pm
Liz Glazer (mail):
Not that this should get in the way of analyzing the obscenity issue in this case, but the obscenity charges were dropped in this case. See here: Obscenity Charges Dropped Against Abercrombie &Fitch, Associated Press, Feb. 5, 2008:
2.7.2008 3:20pm
B. Williams (mail):
And if that much butt crack is considered obscene, most plumbers would be put out of business.
2.7.2008 3:21pm
Tracy Johnson (www):
And that "fits" perfectly with Eugene's prior post about the Headline of the Year doesn't it?
2.7.2008 3:23pm
Liz Glazer (mail):
For whatever reason, the link to the AP article didn't get included in my prior comment. But after reading the article again, I notice that it said the charges would be dropped, which the Virginian-Pilot article echoed.
2.7.2008 3:24pm
DG:
I'm glad Virginia Beach has driven their crime rate so low that they can spend huge amount of time and money to handle these sorts of obscenity issues.

I guess its safer to arrest a clothing store manager than it is to bust an actual criminal. I'm sure the arresting officer will be lauded by his pastor and then go engage in carnal relations with a male prostitute. For some reason, the prudes are always the ones who end up getting busted in the state park restrooms.
2.7.2008 3:47pm
Randy R. (mail):
The photographs at A&F are taken by Bruce Weber, widely regarded as one of the finest photographers today. There is no question that his photos fall under the artistic exception.

Anyone else bothered by the notion that "harm to minor's" is a term of art, and you don't have to prove actual harm to any minor?

Can anyone else define what a 'shameful interest' would be? I can understand prurient, and possibly morbid, but not shameful. Perhaps Clayton Cramer can enlighten us.

I would like to know if any minors actually filed a complaint, or was it adults who always seem to know what's best for others?
2.7.2008 4:19pm
former virginian (mail):
Does that mean the person standing over the vanquished foe is a woman, like some kind of Amazon? Or did you mean "breast" in the "male non-functioning" sense?
2.7.2008 4:41pm
Bama 1L:
A police sergeant who moonlights in uniform as a security guard at the mall sort of concocted all of this. He said he'd received complaints from mall patrons, but he didn't keep any notes to substantiate this story. (Sure thing, sergeant.) He told the store manager to take the posters down, presenting no authority but his own. When the manager took no action, the sergeant brought a couple more officers with him and seized the posters. He put the city in a very bad position, from which it quickly backed away.

Of course the facts shouldn't get in the way of the constitutional issues, but everyone with a law degree--including the commonwealth's attorney--seems to agree there's no obscenity here.

(Yes, article in the Feb. 3 Pilot contains numerous factual inaccuracies, particularly in the claim that the officer was assigned to patrol the mall. The Feb. 5 article straightens it out.)
2.7.2008 4:54pm
Poncherello:
former virginian,

It's a woman. She represents Virtue and the Commonwealth.
2.7.2008 4:54pm
Clayton E. Cramer (mail) (www):

Can anyone else define what a 'shameful interest' would be? I can understand prurient, and possibly morbid, but not shameful. Perhaps Clayton Cramer can enlighten us.
Shameful interest: When someone doesn't want to admit that they like watching Jerry Springer.

I'll be curious how enthusiastic you all would be if pro-life protesters were putting graphic photographs of aborted fetuses up at the mall, with the caption, "Liberals love this!"

Of course, we also have Harper v. Poway Unified School District as an example of how little respect liberals have for freedom of speech.
2.7.2008 5:00pm
Clayton E. Cramer (mail) (www):

I would like to know if any minors actually filed a complaint, or was it adults who always seem to know what's best for others?
Oddly enough, most of our laws intended to protect minors is actually written by adults. But I guess that makes it suspect, too.
2.7.2008 5:02pm
Clayton E. Cramer (mail) (www):

For some reason, the prudes are always the ones who end up getting busted in the state park restrooms.
No, those are the ones that get the media attention. Homosexuals get arrested on a very regular basis having anonymous sex in public restrooms. If this were 1950, you could sort of understand it: "They are oppressed, they are hated, they have to live in the shadows because they have nowhere else to meat...err...meet."

But this isn't 1950. The reason that this continues to be a major problem is that a lot of homosexual men have some pretty self-destructive habits--like random sex in public restrooms, meth, and unprotected sex with men whose HIV status is completely unknown.
2.7.2008 5:06pm
Mark P. (mail):
I've always wondered why the Southern States that have (had) the Confederate flag on their State flag get so much criticism, while the Commonwealth of VA gets no criticism for its flag. The quote was made famous by the assassin of President Lincoln. In my mind, the Confederate battle flag is a lot less offensive than quoting the famous line of JWB. Soldiers just seem morally superior to assassins to me. What am I missing?
2.7.2008 5:08pm
Elais:
<blockquote>
like random sex in public restrooms, meth, and unprotected sex with men whose HIV status is completely unknown
</blockquote>

Totally unlike heterosexuals who like random sex in public restrooms, meth, and unprotected sex with women when they (the men) are unaware of their own HIV status.

Nice Try Cramer
2.7.2008 5:12pm
Current Virginian:
Mark P.,

Sic Semper Tyrannis was adopted as the Commonwealth's motto long before the Civil War.


2.7.2008 5:20pm
Current Virginian:
Links didn't show:

http://en.wikipedia.org/wiki/Seal_of_virginia
http://en.wikipedia.org/wiki/Sic_semper_tyrannis



2.7.2008 5:25pm
James Fulford (mail):
Mark P, what you're missing is that Sic Semper Tyrannis has been the motto of the Commonwealth of Virginia since 1776, when George Mason suggested it, with King George III in mind. It was previously used by Marcus Junius Brutus, at the assassination of Julius Caesar. (John Wilkes Booth's father was named Junius Brutus Booth.)

So they didn't adopt because Booth shouted it, he shouted it because it had already been adopted.
2.7.2008 5:26pm
Dilan Esper (mail) (www):
I'll be curious how enthusiastic you all would be if pro-life protesters were putting graphic photographs of aborted fetuses up at the mall, with the caption, "Liberals love this!"

I'll bite. I wouldn't like it at all, Clayton, but I would also represent the pro-lifers in court if the government tried to stop them.
2.7.2008 5:26pm
Elliot123 (mail):
"I'll be curious how enthusiastic you all would be if pro-life protesters were putting graphic photographs of aborted fetuses up at the mall, with the caption, "Liberals love this!"

I would have no enthusiasm for those fetus photos. Nor do I have any enthusiasm for the A&F ads. The list of things for which I have no enthusiasm is endless. Who cares about my enthusiasm?

Now, if those guys in the A&F ad were carrying guns in a safe and responsible manner as taught in a NRA safety course, I would be very enthusiastic.
2.7.2008 5:56pm
Randy R. (mail):
I'm of two minds about the photos. Sure, they lure me into the store, and being the sex-crazed homo, I love to drool all over them. Especially after I've had my meth fix.

But then looking at those tight abs, that rich, full hair, the bulging muscles and other body parts, I feel so totally inadequate, and I lose my enthusiasm for them.

But I am very glad to know that adults know that teenagers can't handle the photos of half naked men. There was a push a few years ago to prohibit the A&F catalog because it contained these same sorts of photos.

Nope, can't have our kids wearing stylish clothes. They might vote Democratic
2.7.2008 6:14pm
Waldensian (mail):

No, those are the ones that get the media attention. Homosexuals get arrested on a very regular basis having anonymous sex in public restrooms.

Today's Clayton Cramer Number* is 14.

*The "Clayton Cramer Number" is the number of comments made on a given VC topic before Mr. Cramer posts an irrelevant rant about homosexuality.
2.7.2008 6:58pm
Crunchy Frog:
Poncherello:

It looks like the vanquished foe is getting a nice view of Virtue's... er, virtues.
2.7.2008 7:14pm
Randy R. (mail):
Waldenstein: Well, I DID goad him into responding here. I'm sure the number would have been a bit higher without my comments. But only a bit, I'm sure.r
2.7.2008 9:50pm
Waldensian (mail):
I think this video explains everything:

What Virginia Beach police don't want you to see.

And Randy R., please: WaldENSIAN. You're totally confusing your religious/ethnic groups with "Waldenstein." :)
2.7.2008 11:14pm
Randy R. (mail):
My apologies!

Reminds me of the video where a bunch of average looking guys go in to the store on 5th Ave, and at precisely the same moment, take off their shirts. (Many A&F stores have a gorgeous guy standing there shirtless and looking languid) and continue shopping as though nothing happened.

At first, the personnel were startled. Customers laughed and thought it was fun. They tried to buy clothes but were told they couldn't. Eventually, they were escorted out of the store. Lesson: You can be shirtless in their store IF you are a gorgeous male model and have tight abs. Everyone else can leave.
2.8.2008 12:14am
TomFromMD (mail):
I wonder if the framers realized when they said "freedom of speech" that that meant "freedom to show boobies and butts".

Somehow, I'm guessing it wasn't what they had in mind. And somehow, I'm guessing that they'd think we've gone nuts.
2.8.2008 9:54pm