Deputy City Attorney Mark Stiles said that, while the images might be technically in breach of the nudity section of the city’s local code, they were in line with the other standards upheld by the law. For prosecution the images would have to appeal to “prurient interests”, lack any redeeming artistic merit and be offensive to “prevailing community standards”.
First, allow me to remind you that the First Amendment states that Congress shall make no law abridging the freedom of speech, or of the press. (There are limited exceptions that do not apply here, as Kip explains in his analysis of the case before today’s announcement.) But within Stiles’ convoluted excuse for the city’s nudity clause, consider the actual images:
Like, OMG! The bottom of a female breast! The top of a male butt! My eyes, my eyes! And OMG! The Children!
Rather than admit that the officer(s) screwed up, Stiles crouched:
“So Abercrombie and Fitch, part of their marketing plans is to get as close to the line as they can get and then make it a judgement call for the officer on the street. I think that’s what’s happened here,” he said.
IF Abercrombie & Fitch planned this, it still requires an idiot with a badge and a gun to ignore the law. It’s probably safe to assume that one would arrive on the scene somewhere, but the officer’s central role as the deciding factor in the success of this (allegedly) orchestrated marketing campaign is key. Without that public servant’s lack of judgment, the whole idea is a waste of money. Thanks to the officer’s incompetence, this campaign is money well spent.
Abercrombie & Fitch doesn’t need any more discretion, because it’s nowhere close to the limited exceptions to the First Amendment that require conflicting rights. There is no conflicting right to press charges because you’re offended.