A judge has tossed out Britney Spears's $10-million lawsuit against US mag, ruling the popstar cannot be defamed by rumors that she and husband Kevin Federline had made a sex tape and feared its release. The magazine published an article in October 2005 claiming that the couple were worried about the release of a sex tape, and were "acting goofy the whole time" while watching the tape with their lawyers. A Superior Court judge said that Spears has "put her modern sexuality squarely, and profitably, before the public eye," and that it would be unlikely that the magazine article would be found to be defamatory. "The issue is whether it is defamatory to state that a husband and wife taped themselves engaging in consensual sex," the judge wrote in her decision. "The backdrop against which this issue must be addressed is that the plaintiff has publicly portrayed herself in a sexual way in her performances, in published photographs and in a reality show."