Huffman also claimed he was merely exercising his free speech rights. The court said, though, that his conviction had nothing to do with suppressing speech. The "Dick Smart segment is not proscribed because of any message that it conveys; others engaged in similar conduct but having no message whatsoever would be similarly proscribed. Further, the requirement of some minimal clothing does not deprive Dick Smart of his message; it simply makes that message slightly less graphic."

Ah, that's it, the meaning of any particular expression is not affected if you simply render it "slightly less graphic." Thus, putting a fig leaf on Michelangelo's statue of David does not impact the essence of the expression. (Or you could do what the city in which I reside did for years — turn the statue so no one driving by it could see the front). Likewise, the impact of Saving Private Ryan and Schindler's List would not change if they were slightly less graphic.

Undoubtedly, distinctions can be drawn between showing penises, breasts or whatever on television or film compared to static artistic renditions or the films mentioned above. At bottom, though, these are distinctions without difference. As the opinion seems to concede, this is not a case of obscenity (which is not afforded First Amendment protection) or a threat to the government or public order. Nor is this the dire moral peril posed by Janet Jackson's nipple being exposed to a national television audience for seconds.

I am far from a libertine but this decision seems to illustrate the hypocrisy in defining "activist judges" as those "making" law instead of applying the intent of the law. The ultimate result of such an approach is to subsume logical legal analysis in the fallacy that no protection exists because there's no way the drafters of the First Amendment ever envisioned someone showing their penis on some fancy box that transmits moving pictures. Moreover, as illustrated above, the logical extension of this approach is to other forms of media. Virtually any library in the country would be at risk given what they contain. I guess a penis telling bad jokes on TV is dangerous.