Maureen Toffoloni, Nancy Benoit's mother, filed a temporary restraining order against Flynt to prevent the photos from appearing in print, but Judge Thomas Thrash denied it, arguing that the throng of publicity following the Benoit tragedy afforded Hustler 1st Amendment protection.
"You can't unpublish speech already published," Hustler's Atlanta attorney S. Derek Bauer said. "You can't unring the bell."
The temporary restraining order request was the first part of Toffoloni's efforts to claim damages and fight the photos' publication. In the lawsuit, she calls for unspecified damages, including legal fees.
Toffoloni argues that Nancy Benoit never gave permission for the photos, taken by radio disco jockey Mark Samansky 25 years ago, to be used in any kind of adult-oriented publication.
In a reported double-murder-suicide last June, Chris Benoit killed himself after strangling his wife and their young son. The three were found dead in their home. Authorities believe Chris Benoit's excessive steroid use could have led to the killing.
