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):
