Ms. Jackson will be an elderly woman with the nipple in question hanging in her lap when still another generation of esteemed Supreme Court justices wrestle with this weighty and pendulous matter.

Please see what I wrote at the time of the nipple incident:

http://mathaba.net/0_index.shtml?x=35966

D. Grant Haynes 

Justices Tell Appeals Court to Revisit Super Bowl Incident  

By DAVID STOUT

May 4, 2009

WASHINGTON - What may be the most controversial fraction of a second in television history, the momentary baring of the singer Janet Jackson's breast during the halftime show of the 2004 Super Bowl, will be debated once again in federal court.

The Supreme Court on Monday set aside a ruling by the United States Court of Appeals for the Third Circuit, in Philadelphia, that had overturned a $550,000 fine imposed by the Federal Communications Commission on CBS for the "wardrobe malfunction," as the fateful moment has been described.

The high court said the Third Circuit should give "further consideration" to its conclusion last July 21 that the F.C.C. was wrong to fine the network. A three-judge panel of the Third Circuit said the F.C.C. had not given broadcasters enough advance notice that it was tightening its policies involving fleeting displays of nudity, and that CBS should not have been held responsible for the actions of Ms. Jackson and her performing partner, Justin Timberlake... .

The lyrics sung by Mr. Timberlake were arguably not as vulgar, although he seemed to have been overly inspired by them. "Gonna have you naked by the end of this song," he uttered, just before the big moment.

The exposure of Ms. Jackson's breast lasted nine-sixteenths of one second, the Third Circuit noted. That is barely enough time for the speediest wide receiver to cover five yards on a dry field, but plenty of time to generate litigation that has lasted half a decade, with accompanying lawyers' fees.

"We are confident that in reviewing the case the Third Circuit will again recognize that the Super Bowl incident, while inappropriate and regrettable, was not and could not have been anticipated by CBS," the network said. "This remains an important issue for the entire broadcasting industry because it recognizes that there are rare instances, particularly during live programming, when despite best efforts it may not be possible to block unfortunate fleeting material."