Posted by Eugene Volokh: No "Person(s) Posed in an Immodest or Sensuous Manner" on Alcohol Ads,: http://volokh.com/archives/archive_2009_07_26-2009_08_01.shtml#1249060170
That's the rule in [1]Alabama, and it's [2]apparently being enforced against a wine that bears this label: [cyclesgladiator.jpg] Seems pretty clearly unconstitutional; though commercial advertising (which would include [3]product labels) is less protected by the First Amendment than most other speech, it generally can't be restricted on the grounds that it's [4]offensive. Nor do I see any reason why nudity would be any different. Such depictions of nudity are generally constitutionally protected (see [5]Erznoznik v. City of Jacksonville), and would presumably be no less protected on commercial advertising. It's possible that [6]some material that is constitutionally protected against obscenity prosecutions might still be so sexually explicit that it can't be displayed where unwilling viewers -- and especially children -- might see it. But I doubt that the picture above would qualify as "so sexually explicit," especially given Erznoznik's holding that mere nudity can't be restricted on such grounds. And in any case I see no constitutionally sufficient justification for banning such material on offensive grounds on alcohol advertising but [7]not on other forms of advertising. Thanks to Graham Simms and [8]Dr. Vino for the pointer. References 1. http://alabamaadministrativecode.state.al.us/docs/abc/7ABC.htm 2. http://www.nbclosangeles.com/news/local-beat/Winerys-Nude-Nymph-Offends-the-South.html 3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10290 4. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=431&invol=678#700 5. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=422&invol=205 6. http://www.volokh.com/posts/1211220349.shtml 7. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=377#389 8. http://www.drvino.com/2009/07/27/nude-nymph-wine-label-banned-alabama-cycles-gladiator/ _______________________________________________ Volokh mailing list [email protected] http://lists.powerblogs.com/cgi-bin/mailman/listinfo/volokh
