Abercrombie's 'Obscenity' in Eye of Beholder

Feb. 5, 2008 — -- Posters of scantily clad youths that were seized by police at an Abercrombie & Fitch store in a Virginia mall this weekend may be inappropriate for young children, but they are not obscene, according to legal experts.

Virginia Beach police apparently have agreed. On Monday, they dropped charges against the clothing company that markets to prep chic teens through sexually charged imagery.

The window displays went up in 363 stores across the country in mid-January, including the Lynnhaven Mall in Virginia Beach.

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.

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.

Virginia police had referred to City Code Section 22.31, which says it is a crime to display "obscene materials in a business that is open to juveniles," said police spokesman Adam Bernstein.

The manager of the store could have faced a fine of up to $2,000 and a year in jail.

Walters said police may have misread the standards for obscenity, as is often the case. He also said they improperly seized the posters without a search warrant, which constitutes prior restraint, which is barred by the Constitution.

"In a free country, we don't limit what people can view, watch or read by what is acceptable to minors," said Walters. Protecting children is a "job that belongs to parents."

Others in the community see it differently.

"I am glad they took them down," said Gina, a mother of three and operator for the Virginia Beach police, who did not want her last name used. "Every time I go to the mall I see those beefy, meat market posters. I'd like to understand why they can go so far."

This wasn't first time Abercrombie & Fitch had been threatened with a legal fight. In 2004, it agreed to pay $40 million to settle a lawsuit that accused the company of promoting whites over Latino, black, Asian American and female applicants, according to the U.S. District Court for the Northern District of California.

Abercrombie & Fitch has earned a reputation for its racy catalogs and photography that adorns its store displays and shopping bags. Each year, thousands of teenagers across the country get their parents to buy them the latest T-shirt, jeans, jacket or underwear from A&F.