This case is around five years old at this point -- it started long before the SSM onslaught started to happen in the federal courts -- but I have always thought there was something there. But, at best, the sensible path was a narrower ruling. The drawn out lower court opinion was interesting but dubious. And, if there is no real chance of prosecution etc., this seems appropriate. They will appeal and but don't think the en banc court wants this either.