The Antiterrorism and Effective Death Penalty Act of 1996, designed to limit frivolous appeals in federal courts, governs Musladin's case. A federal court, it says, may not overturn a state court decision unless it "was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States."

The problem for Musladin is that the Supreme Court has never "clearly established" or even hinted that something worn by courtroom spectators could deny a defendant a fair trial. Accordingly, the state appeals court let Musladin's conviction stand. A federal district court declined to overrule the state court, and Musladin's appeal arrived in the 9th Circuit. Judge Stephen Reinhardt, a Carter appointee, wrote that court's opinion overturning Musladin's conviction. This is the same Judge Reinhardt who has voted over the years for 9th Circuit opinions that claimed doctor-assisted suicide was a constitutional right and -- in another take on the freedom of expression -- that it is unconstitutional for children to recite the Pledge of Allegiance in public schools.

Lacking a Supreme Court precedent to back up his decision that the Studers' buttons made Musladin's conviction unconstitutional, Reinhardt ignored the letter of the law and used a 1990 opinion by the 9th Circuit itself as his justification. That opinion threw out a rape conviction because a few women had attended the trial in question wearing buttons that read, "Women Against Rape."

In a recent story on the Musladin case, the Los Angeles Times reported that the high court reviewed 18 cases from the 9th Circuit last year and reversed 15. But it was only four years ago that the court voted 6 to 3 to uphold the 9th's Circuit's ruling that the First Amendment protected "virtual" child porn.

That opinion was written by Justice Anthony Kennedy, a Reagan appointee.

If nothing else, the Musladin case should remind voters that the upcoming Senate elections are as much about the direction of the federal courts as they are about the direction of the Congress.