ATLANTA - Hustler Magazine argued Wednesday in a federal appeals court that its decision to publish nude photos of a model months after she was killed by her wrestler husband was protected by the First Amendment because she was a newsworthy figure.

The family of Nancy Toffolini Benoit has waged a legal battle against the pornographic magazine since it published the photos after she and her son were killed in 2007 by Canadian wrestler Chris Benoit. Her family said she never gave the magazine permission to print the photos.

The 11th U.S. Circuit Court of Appeals ruled in June 2009 that a notorious death doesn't give publishers a blank check to publish any images they wish. The case went to trial, and a jury in June 2011 voted to slap Hustler Magazine with $19.6 million in punitive damages for running the photos. A federal judge soon reduced that award to $250,000 to abide by a Georgia law capping damages.

The debate before the court on Wednesday was not only whether to reinstate the jury's eye-popping verdict, but also whether the case should have even gone to trial.

Benoit's family appealed to the three-judge panel to let stand the jury's award, while the magazine's attorney used Wednesday's hearing to claim it was protected by First Amendment rights.

The magazine's attorney, Derek Bauer, argued that the case should never have gone to trial because his client was protected under the First Amendment to publish the photos because Benoit was deemed newsworthy. He said the courts have a duty to protect publications that publish "matters of public concern."

"The public is interested in celebrities. I don't necessarily approve of it, but that's for the public to decide," he said, adding that the type of material Hustler published could also be found in mainstream media, not just "fringe" publications.

Benoit family attorney Richard Decker urged the three-judge panel, which didn't immediately rule, to reinstate the $19.6 million jury award. He said a $250,000 fine was no deterrence but simply a "minor cost of doing business in a pornographic empire," and dismissed the notion that the photos were newsworthy in any way.

"The harm was the absolute loss of the plaintiff's rights to control her daughter's image forever and the very important right not to appear in Hustler," Decker said. "They never wanted these photos to see the light of day."

The tragedy earned international attention after the wrestler, his wife and their son were found dead in their suburban Atlanta home. Police said Benoit, then a wrestler for World Wrestling Entertainment, strangled his wife and son and then hanged himself.

Hustler published the photographs months later, advertising "long-lost images of wrestler Chris Benoit's doomed wife" in a brief article that ran with the pictures. The family then filed the lawsuit against the Larry Flynt Publishing Group in 2008 claiming that Nancy Benoit, a model and former professional wrestler herself, had asked the photographer to destroy the images immediately after they were shot.


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