Speaking the Naked Truth

Connoisseurs of the odd byways of law rarely find rich materials in the U.S. Supreme Court, where the deliberations usually proceed with dignity and common sense. For truly asinine judicial misbehavior, we normally have to look at state courts. Yet this past March, the Supreme Court had before it a case that delighted the late-night comedians and launched a few thousand bad puns. Specifically, in the case of City of Erie v. Pap's A.M., This Honorable Court determined that directing the exotic dancers of one Pennsylvania community to wear g-strings and pasties did not violate the First Amendment of the Constitution.

At first glance, it is easy to trivialize a case that seems to belong to the lighter side of American judicial history: There is something gloriously inappropriate about such staid figures as David Souter and Sandra Day O'Connor chatting knowingly about the art of ecdysiasm. But the case does raise serious questions about the nature of First Amendment law, particularly how far that clause can or should be adapted to changing social circumstances. We currently face severe challenges to our freedom of speech rights, especially in the realm of electronic communications. Those of us who have never set foot inside "adult entertainment" establishments may yet regret the Erie decision and others of its ilk.

What happened in the case was straightforward, although the logic underlying...

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