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September 09, 2005

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David

'Counsel, are you shitting me?'
Awesome. Reminds me of a case that came before then-Judge Breyer when I was clerking for him on the 1st Cir. The question was whether the Boston subway could ban, as offensive, certain moderately amusing but somewhat racy ads encouraging people to wear condoms. The lawyer for the plaintiffs dutifully explained the free speech points of law, but Breyer then cut to the chase, explaining at length that what the ads "obviously" were intended to do was make a joke about "someone with a very large penis," and asking whether it was "appropriate" for the MBTA to display "penis jokes" (or something to that effect). The lawyer's jaw was on the floor - it was a thing of beauty.

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