Judge Alison Mackenzie issued a tentative ruling that dismisses the lawsuit, writing that Paramount‘s actions in making the film are “protected activity” under the 1st Amendment, according to court documents reviewed by The Times.

The lawsuit was originally filed in December by Leonard Whiting, who played Romeo Montague when he was 16, and Olivia Hussey, who played Juliet Capulet when she was 15, in the adaptation of the William Shakespeare classic. Directed by Italian filmmaker Franco Zeffirelli, the film includes a controversial bedroom scene in which Whiting’s bare buttocks and Hussey’s bare breasts are visible.

Whiting and Hussey, who are both now 72, said they were coerced into filming the nude scene after Zeffirelli initially assured them that “there would be no nudity filmed or exhibited, and that [they] would be wearing flesh colored undergarments during the bedroom/love scene.” They said Zeffirelli told them “they must act in the nude or the Picture would fail,” and threatened “they would never work again in any profession, let alone Hollywood” if they didn’t comply.

The lawsuit accused the studio giant of sexual harassment, negligence, intentional tort, fraud, appropriation of name and likeness, intentional infliction of emotional distress, unfair business practices and child sexual abuse and sought $500 million in damages.

However, Mackenzie wrote Thursday that the plaintiffs did not do enough to show that the scene itself was “sufficiently sexually suggestive” to be considered illegal. During the hearing, Mackenzie had called the allegations a “gross mischaracterization” of the scene, according to the Hollywood Reporter.

Solomon Gresen, an attorney for Whiting and Hussey, told The Times that he argued in court that merely shooting a nude scene with minors with the intent of selling the content is in itself illegal under federal law.

“The 1st Amendment does not protect the conduct of exhibiting nudity of minors for commercial sale,” Gresen said, calling the content child pornography.

Mackenzie disagreed in her ruling by citing previous cases that found that “not all nude pictures of children are child pornography” if the images are “in the proper context.” To be child porn, the images would need to contain “lascivious exhibition of the genitals or pubic area,” she wrote.

The suit was also thrown out for procedural reasons. According to the court, the plaintiffs failed to file a “certificate of merit,” which is a letter obtained from a licensed mental health practitioner, who must review the case. The document is required under California law when someone older than 40 sues in a child sex-abuse case.

Attorneys for Paramount declined to comment.

Gresen said he and his clients plan to file a separate lawsuit in federal court for appropriation of name or likeness and will appeal the state court’s tentative ruling.

Whiting and Hussey are “very disappointed” by the decision, the attorney said. “They waited this long for justice; they can wait for another few months or years.”