When Fashion and the Law Collide: Salacious Obscenities

One visit to the American Apparel website, and it’s clear that they aren’t just selling T-shirts (that I so adore). Adolescent-looking models, with dear caught in headlights expressions, in “come hither” poses, are like, well, the retailers trademark. And nipples are often exposed.

Attitudes regarding nudity in Western cultures are often more critical than attitudes in non-western cultures. For example, in the U.S., exposure of female nipples is a criminal offense in many states and are not  allowed in public at all, while in the U.K., nudity may not be used to “harass, alarm or distress” according to the Public Order Act of 1986.

However, it was a British advertising watchdog that recently criticized the clothing company for the ad pictured below, after a reader complained to the Advertising Standards Authority (ASA) that the ad, which originally ran on the back cover of Vicemagazine in the U.K., but with a series of six images — instead of three — in which the model further disrobes from her flex fleece and where her nipple was partially exposed in one shot, was “offensive and inappropriate because the model appeared young and it could be seen to sexualize a child.” Reuters reports:

AA American Apparel said that it did not think the partial nudity in the advertisement would cause widespread offense. It said that the model was 23 years old and did not look under 16, nor was she portrayed as a sex object. (because you look naturally sexy wearing a hoodie, right?)

The ASA disagreed, calling the images “provocative,” and adding,

“Because the ad could be seen to sexualize a model who appeared to be a child under the age of 16 years, we concluded that it was inappropriate and could cause serious offense to some readers.”

Sexual materials range between erotic art (which usually includes “classic nude forms” such as Michelangelo’s David statue) and the generally less respected commercial pornography. The differentiation between sexual materials is a particularly difficult one and a contentious First Amendment issue that has not fully been settled. Many cultures have produced laws to define what is considered to be “obscene”, and censorship is often used to try to suppress or control materials that are obscene under these definitions. The definition differs from culture to culture, between communities within a single culture, and also between individuals within those communities.

In the United States, the 1973 ruling of the Supreme Court of the United States in Miller v. California established a three-tiered test to determine what was obscene – and thus not protected, versus what was merely erotic and thus protected by the First Amendment.

Delivering the opinion of the court, Chief Justice Warren Burger wrote,

The basic guidelines for the trier of fact must be: (a) whether ‘the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The legal distinction between artistic nudity, and permitted commercial pornography (which includes sexual penetration) that are deemed as “protected forms of speech” versus “obscene acts”, which are illegal acts and separate from those permitted areas, are usually separated by the predominant culture appreciation regarding such. In fact, federal obscenity law in the U.S. is highly unusual in that—not only is there no uniform national standard, but rather, there is an explicit legal precedent that all but guarantees that something that is legally “obscene” in one jurisdiction may not be in another. In effect, the First Amendment protections of free speech vary by location within the U.S., and over time.

However, “mere nudity” was upheld in the Supreme Court case Jenkins v. Georgia , 418 U.S. 153 (1974) and deemed not to be obscene under the constitutional standards announced by Miller. As declared by the judge at trial “… nudity alone does not render material obscene under Miller’s standards.” In the U.S., the word “obscenity” is usually limited to content that directly refers to explicit sexual acts that are publicly accessible, though it has at times encompassed other subject matters, such as spoken and written language that can be publicly transmitted and received by the general public.

With the advent of Internet distribution of potentially obscene material, this question of jurisdiction and “community standards” has created significant controversy in the legal community. So, while the nude content was offensive to some in the U.K. community and it has been banned from distribution through print publication (so that no one else will happen to glance over at the doctor’s office or on public transit to be incited with disgust), the online community isn’t as easily offended by nudity, perhaps, and hasn’t spoken out. So, if you’re in the U.K., and want to see bare nipples, then you’ll have to go to American Apparel’s website, where nipples run free, although, I couldn’t find the other three photos on the website either, only the ones pictured above (there are plenty others, however).

What do you think of the racy advertisements? Offensive? Not offensive?

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