4:12 PM EST

Larry Flynt's Hustler magazine has won the first round of a lawsuit filed by the estate of Nancy Toffoloni Daus Sullivan Benoit, which attempted to prevent publication of nude photographs of the murdered wife of Chris Benoit.

On Friday, U.S. Magistrate Judge Thomas Thrash denied Maureen Toffoloni's request for a temporary restraining order against publication of her daughter's pictures taken by photographer Mark Samansky 25 years ago. Basing his decision on the First Amendment, Thrash cited the substantial volume of publicity and media attention surrounding the Benoit tragedy in saying Hustler magazine deserved the protection afforded by Freedom of Expression.

The Atlanta Journal-Constitution quickly pointed out that Thrash's ruling was "essentially moot; Hustler's March issue has already been published and disseminated to the public."

 S. Derek Bauer, Hustler's Atlanta attorney, stated, "You can't unpublish speech already published. You can't unring the bell."

The request for the restraining order was the first effort in a lawsuit filed by Nancy's mother, who is the administrator of Nancy's estate, against the magazine and Samansky.

The suit, which calls for unspecified damages including legal fees and litigation costs, was filed in Fayette County Superior Court earlier this week but was moved to U.S. District Court because the case involved a constitutional issue.

The suit alleges that Nancy, who was married to James "Jim"  Daus from 1981 to 1986, never gave permission for the photos to be used for what is described as a "pornographic" magazine whose content includes "graphic and sexual photographs of nude women."

Jim Daus testified in an affidavit that he was present when his wife, who was then an aspiring model, posed for photos and a videotape in the summer of 1983. Daus said he and Nancy had been assured all the images had been destroyed. Daus exclaimed, "Neither Nancy nor I ever gave Mr. Samansky permission to use the photographs or any videotape in any way."

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