The first time I saw Dakota Fanning’s now-infamous ad for Marc Jacobs’ new Oh Lola! fragrance was on the back of a Cosmopolitan resting in the hands of my 19-year old baby sister. My immediate reaction was “OMG…is that Dakota Fanning?! No way she’s grown up that fast!” Then my gaze shifted to the circus-caliber trait that Dakota and I happen to have in common (no, it’s not our shocking good looks) — double-jointed elbows. (God, I love it when celebrities are weird like me.)

At no point in my perusal of the ad did it even cross my mind that it was too provocative, or, as the UK’s Advertising Standards Authority (or ASA) deemed it — right before they decided to ban it altogether — “likely to cause serious offense.” Clearly, like most Americans, my virgin eyes were long ago deflowered by the ubiquitous sextravagent media, and my tolerance for the “sexually provocative” has been fully developed since adolescence. Even taking a closer gander, I’m still unsure what all the fuss is about: pretty in pink lies the acclaimed child star who grew up right before my very eyes, seductively poised with a perfume bottle sculpted in the shape of a flower perched precariously (and euphemistically) between her upper thighs. (No rhyme intended. It’s not my fault Dakota’s soothing quasi-innocence makes me wax poetic. Blame Marc Jacobs.)

Whether the Brits’ better-developed campaign for a cleaner consciousness is a product of American overexposure to a steady stream of underage girls prancing around in mini-skirts and flaunting what their mommas (very recently) gave them, or a function of their more tightly-regulated media environment, I couldn’t help but think: what would the law say if Americans decided to summon the same outrage over Dakota’s Oh Lola! pose as the British censors apparently had?

The ASA’s Argument

In deciding to ban the ad, the ASA made an interesting argument that the U.S. censors (if they exist?) could stand to take note of:

We noted that the model was holding up the perfume bottle which rested in her lap between her legs and we considered that its position was sexually provocative. We understood the model was 17 years old but we considered she looked under the age of 16. We considered that the length of her dress, her leg and position of the perfume bottle drew attention to her sexuality. Because of that, along with her appearance, we considered the ad could be seen to sexualise a child.

Now I’m not going to go so far as to say I believe the ad sexualizes (yeah, here in the States, it’s with a Z) underage Dakota but I do appreciate the level of scrutiny that the ASA applies to advertisements in an effort to keep Brits’ brainwaves protected from the filthy rays of smut.

While U.S. advertisers have no Advertising Standards Authority to which they must submit, advertisers who wish to advertise their goods or services in the United States are subject to an array of state and federal laws regulating their advertising activities. In this country, however, the overwhelming majority of such regulation is designed to protect consumers not from oversexed teenagers, but from false or deceptive advertising. Indeed, there is very little regulatory framework in place to create any boundaries on the media’s long-time conviction (probably accurate) that “sex sells.”

Those who are looking for some such boundaries might be wondering why they don’t exist. Hint: the reason is a word us lawyers like to throw around a lot. Yep, it’s that living document, the Constitution, that’s keeping all this filth in the paws of the American youth.

“Obscenity” Under U.S. Law

So we know the First Amendment protects freedom of expression, and that people often use this constitutional shield to guard their naughty deeds against government intervention. However, not all naughty things are protected: the Supreme Court has consistently held that materials declared legally obscene are not entitled to First Amendment protection. “Oh Lola!” you might say, “U.S. law does take a stand to preserve the purity of the American mind!” Not so fast.

While the First Amendment has been held not to protect legally obscene material, the Supreme Court has also repeatedly held that it does protect materials that may be indecent or simply offensive (you know, like, Whitney, or Yes, Dear). The same rule applies to advertisements. So now the real issue is, what exactly is the definition of obscene?

In 1964, Supreme Court Justice Potter Stewart famously observed that, although he could not define obscenity, “I know it when I see it.” (Wonderful. I suggest we appoint Justice Stewart to be our nation’s Advertising Standards Supervisor, and charge him with reviewing all potentially obscene materials before they hit the shelves. The only flaw in my plan? Justice Stewart died in 1985, even if his powerful legacy lives on in obscenity history.)

In 1973, the Supreme Court attempted to lay out a somewhat more generalizable definition of obscenity in Miller v. California, which sets out the “modern” test for obscenity. (I personally find it much less decisive than the Stewart test.) A work is “obscene” if it:

  • Depicts or describes sexual conduct;
  • Taken as a whole, lacks serious literary, artistic, political, or scientific value;
  • Taken as a whole and applying contemporary community standards, appeals to prurient interest; and
  • Applying contemporary community standards, portrays sexual conduct in a patently offensive way.

So let’s see if the Oh Lola! ad passes scrutiny for obscenity. It’s quite a stretch of the imagination to say that the ad depicts sexual conduct. Yes, Dakota has a flower-topped bottle sprouting from her nether-regions, but this doesn’t necessarily constitute sexual conduct. Sexual imagery, yes. Sexual conduct, probably not.

As for the value of the ad, I’d like to make the argument that the work has literary value. The name of the perfume, Oh, Lola!, brings to mind the similarly-themed and similarly-controversial novel Lolita. This, my friends, was no accident: according to one report, Marc Jacobs described the fragrance as “‘sensual’, saying how the little sister scent to the hugely successful Lola is ‘More of a Lolita than a Lola’.” Jacobs seemingly cemented this connection when he told WWD, “I knew [Dakota] could be this contemporary Lolita, seductive yet sweet.” From these statements, it’s pretty clear that the ad was intended to reference Lolita (which, need I remind you, is a book about a creepy middle-aged man who is obsessed with a 12-year old girl with whom he becomes sexually involved after she becomes his stepdaughter). Although the literary connection may be a bit of a leap, the ad arguably pays tribute to this renowned literary work and therefore may itself contain some literary value. Moreover, I’m certain that the photographer, stylist, and set designer for the shoot may have something to add if we ask them whether the photo has any significant artistic value.

Judging next by contemporary community standards (whatever that means), we must next decide whether the Oh Lola! photo appeals to prurient interest. For those who don’t keep a pocket Merriam-Webster on hand at all times, “prurient” is defined as “marked by or arousing an immoderate or unwholesome interest or desire; especially: marked by, arousing, or appealing to sexual desire.” While I don’t ordinarily assume I’m entitled to speak for the entire contemporary community, clearly, for purposes of this blog post, I’m not letting that stand in my way. And it seems to me that most Americans today are so bombarded with sexual images, at times even bordering on the vulgar, that our community standard for what “arouses an immoderate or unwholesome interest” has become a pretty high bar. Indeed, my initial reaction to the Oh Lola! ad exemplifies this perfectly: until I read the news article about the banned ad, it didn’t even occur to me that it was overtly sexual or appealed to one’s sexual desires. (Of course, I acknowledge the possibility that my once chaste mind has been further corrupted than the average American’s, and it might take more to get a rise out of me than most. Nevertheless, I think it’s safe to say that while the ad may take you places if you want to go there, it doesn’t, per se, “arouse sexual desire.”)

And finally, a court would consider whether the ad is “patently offensive” under prevailing community standards. Again, speaking boldly on behalf of my entire community, because I don’t think the ad portrays sexual conduct, it is even more unlikely that it does so in a patently offensive manner. And, based on my extremely scientific review of Internet comments to posted by people that spell sexualize with a Z, it appears that most Americans agree the ad was suggestive at best, but not necessarily offensive. Even if the Lolita innuendo and the sprouting flower euphemism seemed to get under people’s skin, these suggestions probably don’t qualify as the portrayal of sexual conduct that is patently offensive. (Of course, I live in the den of sin and iniquity known as Los Angeles, and perceptions in other, more wholesome parts of the country may vary. Which, of course, illustrates one of the big challenges of actually applying this whole “contemporary community standards” concept.)

Won’t Somebody Please Think of the Children?

With constitutional protection effectively barring substantial regulation of sexified advertising like Dakota Fanning’s Oh Lola! ad, can we count on the sex-crazed media to start tempering the share of attractive flesh it places on display itself? In other words is anyone out there thinking of the children?

Obviously, private publishers are free to set their own standards for what constitutes acceptable material in advertisements, whatever the constitution has to say. And the American Advertising Federation, evidently trying to create at least the appearance of industry self-regulation, has adopted the Advertising Principles of American Business. Among the principles included is one titled “Taste and Decency,” which advises that “Advertising shall be free of statements, illustrations or implications which are offensive to good taste or public decency.” If one is to accept the ASA’s analysis, it appears the Oh Lola! ad is in clear violation of this principle — if the ad, as the ASA found, could be seen to “sexualise a child,” it probably follows that it’s offensive to good taste or public decency. But the fact that neither you nor I have ever heard of the American Advertising Federation calling foul on one of its own teammates probably tells you all you need to know of the effectiveness of such industry-regulation (at least in the absence of more rigorous structure, as with the MPAA motion picture ratings system).

In any event, to paraphrase a famous axiom about art, the only rule in advertising is what works. And according to Gallup & Robinson, an advertising and marketing research firm that tested over 100 ads utilizing sex to sell a product, provocative ads’ overall recall scores averaged 77% above their respective product norms, with sex selling as well to women as it did to men. In fact, G&R has reported that “in more than 50 years of testing advertising effectiveness, it has found the use of the erotic to be a significantly above-average technique in communicating with the marketplace.”

So it looks like the “sex sells” mantra is here to stay. Can you blame ‘em? After all, isn’t that the only reason you read this entire article? Oh, of course not. You read it for its literary value, I’m sure.

It seems fairly clear that the Oh Lola! ad fails (or passes?) the Miller test and probably would not be deemed legally obscene. Indeed, the substantial lack of precision inherent in the Miller test results in virtually all of the sexually-charged advertising material in the U.S. gaining refuge from statutory regulation under the First Amendment umbrella.