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Abercrombie Obscenity Flap

Virginia is not my least favorite state. It doesn’t even make the top five. Imagine that, home of Liberty University, Jerry Falwell, and Regent University and it… hmmm, okay, it makes the top five – especially after last week’s Abercrombie flap.

Before we get into talking about that, lets take a look at the Virginia state flag:

See that? That isn’t side-boob, that’s full on wardrobe malfunction nipple. Underneath in latin, “Thus always to Tyrants.” This is what Brutus said when he killed Caesar and what John Wilkes Booth said after he killed President Lincoln.

I just want to make sure I’m right here… everyone check with me. Is this really boobie?


Awright, got your irony gun set to “kill?” Good, come with me to Virginia Beach…

Let’s get one thing straight, I despise Abercrombie & Fitch almost as much as I despise Kansas. If hitler were alive today, I believe that the SS would be swathed in Abercrombie from head to toe. It is “Gap for the Master Race.” See here and here.

As far as their scantily clad ad campaigns? Just stupid. I’m not offended by them, but if I want porn, I can find it. Shock advertising is just silly. Nevertheless, we live in a free country. I exercise my right to refuse to shop at Abercrombie every day. Obviously, I am in the minority and my point of view is losing in the marketplace of ideas.

We live in a free country. That is the price I pay.

The Virginia Beach police didn’t get that “free country memo.”

Some parents in Virginia Beach shrieked “what about the children?” when Abercrombie revealed its latest ad campaign – more of the same faux-sepia semi-nude Caucasians.

One of the posters showed three shirtless young men, one with his upper buttocks revealed. The second one revealed a woman’s breast — with all but the nipples. (source)

The police showed up at the store, issued a warning, and when the warning was not heeded, they handed the manager a citation and confiscated the posters as “obscene material.”

One problem, even if they were legally obscene, police officers don’t get to make that decision.

According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:

  1. Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
  2. Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  3. Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.

Was the police response to the store an overreaction? Yes, according to legal experts. Though local laws can vary, courts require that the image show sexual activity or a “lewd display” of genitals, says Lawrence Walters, an Orlando, Fla., lawyer and First Amendment specialist.

“There is not a chance any jury in America would find the photo obscene under these standards,” he said. (source)

My axe to grind du jour is the fact that the officers on duty decided that it was their prerogative to apply the Miller test, circumvent the courts, and engage in unlawful prior restraint. Issuing the citation was foolish. However, it was at least proper procedure. Seizing First Amendment protected materials? That was not just foolish, but down right scary.

Fortunately, the amount of ridicule heaped upon Virginia Beach for this foolishness resulted in an immediate reversal of their position. The charges have been dropped.

Okay, Virginia is no longer in the top five.

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