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American Apparel's "Is It Kiddie Porn?" Ads Find a Haven in Canada

A Canadian Supreme Court ruling appears to have created a rule-free Nirvana for American Apparel's (APP) "is it kiddie porn?" advertising. The ruling actually addressed political ads on the sides of buses, but some transit authorities are interpreting the law to mean they cannot exercise any taste or judgment over the ads that companies want to place.

British Columbia Transit and TransLink had a policy of banning controversial ads, such as one that a teacher's union had tried to place to encourage voters to turn out in an election. The court ruled in 2009 that public transit was akin to "the street ... a location where expressive activity is protected."

Now comes American Apparel, running an ad for a "short, billowing, private school-type skirt" worn by a model wearing "a flesh-coloured, body-conforming camisole," according to The Chronicle. The model is poised such that:

Her arm is strategically poised over her breasts which, when driving by, seem almost non-existent, thus making her appear pre-pubescent.
Linda Yates, a minister at St. John's United Church in Halifax, complained to Metro Transit that the girl in the ad, while probably over 18, was nonetheless selected and posed to appear as a sexualized child. It was too close to child porn, Yates protested. Here's Metro's response, per Yates:
The director of marketing said the Supreme Court of Canada recently ruled that all "controversial" advertising must be posted. They are not allowed to discriminate. Surely, I responded, not everything must be posted. Are there not times this new "ruling" conflicts with other laws of the land, such as those designed to protect children from sexual exploitation? She said she would have a look at the ad and make a decision. Since then, I noticed the ads have proliferated.
If this is true, the ruling will be significant for American Apparel because the company has been repeatedly accused of simulating kiddie porn (or being just plain lewd) in its ads: In Los Angeles, in Los Angeles again, in Australia, and in the United Kingdom (where this ad, right, was pulled from Vice magazine).

The company has put forward two defenses. First, by arguing that critics see kiddie porn where none exists (and by extension the critics are the pervs, not American Apparel). And second, with this statement:

When you use the term "child porn" to describe every provocative ad featuring models that aren't plastic-titted Jenna Jameson lookalikes or waxed steroid muscle boys, when you use the term to describe adults photographed in natural settings with natural light, when you use the term for anything other then the real thing, all you do is muddy the waters. An underwear ad with an adult model is not child porn, even if it makes you feel a little lecherous. Get over it, and if I can make a suggestion, try concentrating your talents on addressing the real problems that plague the city we share.
That argument is a good one, on its face. But you have to remember the retail context: As far as the schoolgirl skirt goes, American Apparel refuses to sell it in anything above a size 6. The average adult woman in America takes a size 8. While size 6 isn't a child's size, the majority of available sizes (0-6) will comfortably fit only under-age girls, or those whose bodies resemble them.

You can draw your own conclusions about whether CEO Dov Charney is simulating the basement-Polaroid oeuvre of the pedo or not. What is no longer a matter of debate is that Charney may have finally found a country where he can run whatever ads he likes, no matter how creepy consumers find them.

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