Julie Amanda Tilton participated in two wet T-shirt beauty contests observed by 300 to 400 people, many with video cameras, at the Desert Inn Resort and Convention Center during spring break in March 2001.
Tilton also participated in a “banana sucking contest,” a “muff eating contest” and a “sexual positions” contest at the public event.
A lower-court judge rejected Tilton's claim she was a sexually exploited minor, saying she failed to prove the photos that harmed her depict sexually explicit conduct.
A three-judge 11th U.S. Circuit Court of Appeals panel upheld that ruling last week but reversed denial of attorney fees to Tilton from a photographer, who did not respond to the suit.
“The [U.S. District Court in Orlando] court did not err when it ruled that Tilton’s conduct did not create the realistic impression of an actual sex act,” wrote Judge William Pryor for the majority of the court. “Tilton does not contest the finding of the district court that in ‘all images and video clips, both [Tilton] and her male counterpart were wearing bathing suits which at all times covered their genitals.' Those images do not create the appearance of actual sexual intercourse.”
Playboy Entertainment Group, the Desert Inn and BV &BK Productions, which operates such sites as Wett-Shirt.tv and BikiniVoyeur.com, were among some of the defendants in the case.
The 11th Circuit, in the decision, said that the district court relied on the Merriam-Webster Online Dictionary, which defines “simulated” as “made to look genuine.”
“To the extent that any ambiguity exists in the plain language of the term ‘simulated,’ our interpretation is guided by the doctrine of constitutional doubt, which instructs us to construe a statute that is ‘genuinely susceptible to two constructions’ in favor of the construction that avoids “a serious likelihood that the statute will be held unconstitutional,” Pryor wrote.
The 11th Circuit noted that other federal courts have recognized “simulated sexual intercourse” broader than an act that creates the appearance of actual sexual intercourse.
Nevertheless, the court said it agreed with the district court that the “pictures in question do not depict anyone with the obvious appearance of a minor” and that no jury “could reasonably conclude from observation of the pictures themselves that any of the participants were minors.”
The 11th Circuit also said that the district court did not err when it concluded that Tilton had not produced evidence that her images remained on BikiniVoyeur.com after Tilton filed her lawsuit.
“Although Tilton produced evidence that her images remained on the [defendant’s] website sometime in 2005, Tilton failed to present evidence that the images remained on [BikiniVoyeur.com] website after Tilton filed her complaint on April 11, 2005,” the court ruled.
The case is Tilton vs. Playboy, et al., No. 05-00692.