We all know about the raunchy Diesel photo shoot that took place in Brooklyn Law School’s library; and we are all probably happy that it did not happen in ours (or maybe some of us wish it did?). Either way, the reason I’m bringing this up is not to talk about how lucky (or unlucky?) we are that the tables we study on and the books we read aren’t tainted with half-naked models. Rather, I bring up this hot topic to ask the question – how are these scandalous ads allowed?

Abercrombie is well known for being a super scandalous advertiser. Who hasn’t, at least once, walked past an Abercrombie store and seen a buff model standing out front wearing nothing but boxers? I know I have! While Abercrombie sells a lot of clothes – from cozy sweatshirts to slinky bikinis – the models in Abercrombie ads are usually not wearing much. How is this ok? The Federal Trade Commission focuses on preventing deceptive advertising, requiring that all advertising claims be substantiated. However, these scandalous adverts do not fall into this FTC trap … that is, unless we all think that if you buy the navy Abercrombie zip-up hoodie worn by the super hot model in the advertisement, the hot scantily-clad model comes with it – highly doubtful.

So where does the law stand on allowing these scandalous ads?

The U.S. Supreme Court case, Miller v. California, sets a standard for obscenity that, if met, means the First Amendment right to freedom of speech is no longer protected. Three elements must be met for a work to be considered obscene – an average person applying their community’s standards would find the work appeals to sexual matters, the work depicts sexual conduct defined by state law, and the work lacks serious literary, artistic, political, or scientific value. 413 U.S. 15, 17 (1973). This case law exists, yet scandalous adverts still manage to surround us. I guess, given what is allowed these days in movies, TV, and dirty magazines, the government is not likely to censor these advertisements under the First Amendment. However, while movies have ratings and TV has parental controls, half-naked models are popping up on billboards everywhere with no real legal impediment to be seen. What about the kids?!

I won’t let Abercrombie take all the credit – Calvin Klein isn’t one to keep its models cozily covered either. Rugged broken in jeans and a white t-shirt? Puh-lease! Maybe 30 years ago. Now, constantly taking the heat for being just way too scandalous, Calvin Klein launched its Fall 2010 ad campaign containing censored billboards that offered spiffy QR codes, allowing a passerby to take a picture on their smart phone, only to reveal an exclusive scandalous Calvin Klein commercial. Is this really any better?

While these ads often don’t go uncontested, a lot of them still make it out in the commercial advertising world – convincing us to buy, buy, BUY! But come on, really, how did the Kim Kardashian Sketchers commercial make it on TV this 2011 Superbowl? If that’s not considered obscene under the Miller standard, maybe the advertising industry should be the subject of social pressure to take it down a notch.