By Gersh Kuntzman
Where’s our apology, Bob? That’s what Miami lawyer Reed Somberg wants to know.
He filed a class-action suit against Penthouse Magazine owner Bob Guccione on the grounds that Guccione committed fraud when he promised his 1.2 million readers that the June issue contained nude photos of tennis player Anna Kournikova.
As even the most casual consumer of porn now knows, the photos were not of Kournikova, but some other out-of-focus sunbather. Guccione claims that the mistake was unintentional, but even so, the 47-year-old Somberg– and hundreds of thousands of red-blooded, palm-haired American adolescents – spent $8.99 on a lie.
And this is America, after all, where caveat emptor has long been replaced by “See you in court.”
“We want our money back and we want punitive damages,” said Somberg, who maintains that he is not a regular Penthouse reader, but merely bought the June issue for a tennis-loving “friend.”
“I really did buy it for a friend,” said Somberg, who spoke to me Sunday from his garage where, he claimed, he was “building an airplane” (which I interpreted as a euphemism for masturbation).
“Everyone always laughs when I say that I bought that issue for my friend, but he’s always talking about Anna Kournikova. So when I saw the magazine on the newsstand, with the big headline, ‘Anna Kournikova Nude!’ I bought it for him. I haven’t read that magazine in more than 20 years.”
And now Somberg wants his $8.99 back. (If you ask me, $8.99 is a lot when you consider that in most of the world, nine bucks can get you much more sexual stimulation than looking at airbrushed photos of women who don’t exist outside of a plastic surgeon’s laboratory.) But despite the fact that there was enough nude flesh in that particular issue of Penthouse to satisfy most men, Somberg’s court complaint charges that “the value of the magazine without the photos is either nothing or greatly diminished.”
A brief review of the Pornikova Affair may shed light on Somberg’s dissatisfaction. When Penthouse’s June issue hit the stands, the topless photos of the 20-year-old “tennis” “star” were the big story of the day, a rare intersection of the sports, media, entertainment, business, and porno worlds.
Kournikova claimed all along that those weren’t her breasts in the photos, but she ended up sounding like just another celebrity seeking to disassociate herself from prior transgressions and blame the media for a self-imposed image problem. Guccione claimed it was a harmless mistake. He apologized, but she hit him with a multi-million lawsuit claiming damages to her reputation.
But then, out of nowhere, came Judith Soltesz-Benetton– heir to the fashion fortune that bears her father-in-law’s name (Benetton, silly, not Soltesz)– who announced that she, not Anna Kournikova, was the topless woman “gracing” Penthouse’s glossy pages. Guccione apologized to her, too, but she hit him with a multi-million-dollar lawsuit claiming damages to her reputation.
Arguably, though, neither woman has been as damaged as readers of the perjury-prone porn publication. Here’s my logic: Kournikova has no legitimate claim of harm because, after all, the pictures were not of her.
How can a celebrity be materially damaged when a magazine does not print pictures of her naked? After all, there are hundreds of magazines that have not printed pictures of Anna Kournikova naked– despite her casual relationship with clothing. Will these magazines now be targets of further Kournikova legal efforts?
And Soltesz-Benetton can’t say she’s been harmed, either. After all, she outed herself! Thousands of American pre-teens were satisfied that they had enjoyed a private audience with Anna Kournikova, only to hear this Soltesz-Benetton woman complaining that the photos were actually of her. Had she remained silent, no one would have known.
In fact, one could argue that Soltesz-Benetton has been materially aided by appearing Penthouse. Instead of being a no-name heiress, Soltesz-Benetton is now known the world over as someone hot enough to be mistaken for Anna Kournikova, who earns a great living simply by being perceived as hot. Given that our society remunerates a woman in a direct correlation to the amount of clothing she is willing to shed, Soltesz-Benetton has increased her earning potential, not damaged it.
No, the only people truly hurt by Penthouse’s lie are the loyal readers. But will Somberg’s case stiffen a judge’s sense of compassion or merely harden his heart?
To find out, I called up New York lawyer Ron Kuby. I’ve known Kuby for years. Not only has he defended punks, criminals, and lowlifes, but he’s truly relevant to this article because he currently has a civil suit against the city on behalf of a woman who was arrested for taking off her shirt at a famous Coney Island parade renowned for its public nudity.
In addition to that, I got naked with Kuby in a bathhouse on E. 10th Street once (long story; someday I’ll tell you all about it). So clearly, no lawyer comes with those kinds of credentials. Yet even Kuby, who claims his parade-going flesh-flasher deserves thousands in damages from the city of New York, found Somberg’s suit without merit.
“How are Penthouse’s readers damaged by the knowledge that the woman’s body they were enjoying is not, in fact, Anna Kournikova?” Kuby asked. “What recourse could they expect from the courts? Do they retroactively want their [erection] back?”
Kuby agreed that the cost of the magazine should be refunded, “but only if the magazine is returned” in its pristine form, he quickly added as a legal codicil.
“But other than that, they have no redress– no pun intended,” he said. I challenged Kuby, arguing that he had actually intended to use the word redress as a pun and he backed down. “OK, pun intended,” he said.
Still, something didn’t sit well with me (and it wasn’t just the Vietnam-esque flashbacks I still have of me and Kuby naked at the 10th Street Baths).
No, what bothered me was the larger implications of Somberg’s suit. If Somberg loses, won’t Penthouse be further emboldened to lie? If they can get away with promising us a well-known tennis player but giving us only an unknown heiress, what’s to stop them from promising us “The Hottest Girls in Reno” only to publish a semi-nude pictorial of Janet Reno?
Was I naive to think that the entire porn industry was not merely a hoax built on some unrealizable fantasy of oversexed, wanton, concupiscent flesh available at a moment’s notice for the pleasure of all men? In a word, yes.
“Pornography is about lies,” Screw magazine publisher Al Goldstein– a waddling encyclopedia of crude– told me. “My cover had a headline that said ‘George Bush Naked Inside!’ But I lied. This is America, after all. The only way to succeed is to lie. I bought a fancy sports car because the commercial said that hot women would flock to me. Did they? No! I was stupid for believing the lie.”
But once Penthouse is given free reign to lie, how will we ever be able to trust anything in that magazine? How will we even know for instance that the naked women depicted in Penthouse are even naked? Or that they’re even women?
Next thing you know, we’ll find out that the magazine’s pinup girls are not nearly as libidinously uninhibited as they say they are in the photo captions. I know I speak for Reed Somberg when I say that would crush me.
This essay was originally published in Newsweek.com.