Frequent readers will know that Serious Law Student and I disagree on many things: anonymity, politics, music, you name it. It appears, however, that one Columbia professor of Constitutional Law agrees with her on Justin Timberlake[1]:

By describing the "whole performance" of Timberlake and Jackson as "onstage copulation," FCC Chairman Powell may have been laying the groundwork for an obscenity charge. Such a charge would likely fail, however, because the performance had serious artistic value.

OK, teasing aside, this is one reason I have a very hard time taking Constitutional Law seriously. One of my classmates posited a 'straight face' test earlier this week, which I'm going to modify to be: 'does anyone think that a non-lawyer, presented with the judge's decision, could try to justify them with a straight face?' No matter how hard I try, baring one's hooters in public just can't fit within my definition of 'speech,' unless teenage mooning from the back car seat has somehow become a form of high oratory. The trouble is, as much as this makes sense to me, I'm pretty sure I'm on the wrong side of the Court on this issue.

Which is why whenever a judge reacts with horror (see Question 4) at the suggestion that people think judges have a preferred political outcome to which they work their way by clever if disingenuous logic, I think they're not being entirely honest with themselves. I doubt they do so regularly, but it is incredibly difficult to reconcile Supreme Court thought without believing this to be the case. Within the strange world of the law, 'speech' may include taking off a bra in public, and the debate then becomes whether the Constitution protects 'obscene' or 'indecent' speech. But until you've had 1,000+ pages of Con Law run into your head, the answer's pretty simple: nipples don't talk.

(Professor Dorf's article found on If Cardozo Were Alive)

[1] I'm also going to hope Prof. Dorf won't be annoyed here if I point out his facts are a bit wrong. He states that "Janet Jackson's breast was adorned with a pasty; if Pap's can be read to say that there is a constitutional right to display naked breasts in public so long as they are decorated with pasties, then perhaps the halftime show falls on the protected side of the line." However, it is clear that her breast was adorned with no such thing. (WARNING: It's the infamous nipple, care of The Drudge Report. Definitely not work safe.) Rather, she was wearing a rather elaborate piece of body jewelry, which leaves her nipple exposed and visibly pierced. How this changes his analysis of Jackson's anatomy with respect to City of Erie v. Pap's A.M. is beyond this poor student's analytical ability.