Judge Orders Recall of Magazine Over Nude Photos

What does Brad Pitt have in common with the Ford Pinto, 32,000 flammable sweaters and cheese? All have been the subject of recalls.

A Superior Court judge Thursday ordered the publishers of Playgirl magazine to recall its August issue because it contains nude photographs of Pitt and his former girlfriend, lawyers for both sides said.

Although lawyers for Playgirl said the issue has sold out, they immediately appealed the ruling.

Judge Robert H. O’Brien sealed his order, which was made public by lawyers for Playgirl and Pitt.

A nationally known legal expert who specializes in 1st Amendment issues said he doubted that O’Brien’s decision would withstand an appeal.

“It’s Orwellian, frankly, in its implications,” said attorney Douglas E. Mirell. “It is essentially secret justice.”

The order, Mirell said, was “entirely unprecedented, blatantly unconstitutional and practically useless,” because the magazine sold out weeks ago.

Jay Lavely, a lawyer for Pitt, said he did not believe that publication of nude photos taken without his client’s consent merited free speech protection because they were not newsworthy. Instead, he said, the magazine attempted to exploit Pitt’s image.

“They could have printed those nude pictures on a coffee mug or T-shirt and it would have been the same,” Lavely said.

Playgirl’s lawyer, Kent Raygor, contended that 1st Amendment issues were involved and that the ruling “censors the public’s right to see information that is newsworthy and of great public interest.”

Last month, O’Brien ordered Playgirl to halt distribution of its August issue featuring the cover story and headline, “Brad Pitt Nude!”

The judge’s order Thursday made the earlier newsstand ban permanent and went even further, Raygor said. The photos showed Pitt and actress Gwyneth Paltrow cavorting in the nude outside a hotel bungalow on a Caribbean island two years ago.

O’Brien also ordered the magazine to recall its August issue from vendors and inform them that they are banned from selling or distributing it, the lawyers said. Raygor said the magazine sold out within days of O’Brien’s first order and already had been mailed to subscribers when Pitt filed suit.

“He’s issued an unenforceable order,” Mirell said. “It is not the prerogative of any judge in this state to try to stuff the cat back in the bag.”

The dispute drew attention to the photographs and made the issue a hot collectors item. Already ads have appeared offering to sell copies for $50 or more.

“Many fewer people would have become exposed, as it were, to this issue were it not for the litigation itself,” Mirell said.

The court case, which includes an unresolved lawsuit that Pitt filed against the magazine, places two fundamental rights at odds: The magazine’s constitutionally guaranteed right to free speech, and Pitt’s right to privacy.

Lavely argued that the photographs and accompanying story were not newsworthy. Because they were taken--apparently by a hillside paparazzo--and published without Pitt’s knowledge or consent, they were an invasion of privacy and exploited his image, which is his alone to publicize, the lawyer said.

But Raygor argued on Playgirl’s behalf that the magazine had not commissioned the photos and therefore had not invaded Pitt’s privacy. The pictures were in the public domain long before the magazine decided to publish them, the lawyer said, having previously been picked up by European tabloids and on the Internet.