By last spring, ruling on Paris Hilton cursing on a Fox awards show, the oldest justice sounded like an echo of the shameless youth-culture manufacturers he once excoriated. He lamely claimed that saying that the profanities unleashed by the ditzy heiress were not obscene since they weren't a reference to sex or excrement. "As any golfer who has watched his partner shank a short approach knows, it would be absurd to argue the suggestion that the resultant four-letter word uttered on the golf course describes sex or excrement and is therefore indecent."
In the case of Hilton, he was now speaking for the minority endorsing the "powerful interests" and rejecting the "ordinary citizens." Overwhelmingly -- survey after survey confirms this -- the American people think it's common sense to call an F-bomb an F-bomb, and not make cute golf-shanking analogies that fly in the face of reality.
Is this the kind of jurist that Obama hopes to appoint, someone who can look at or listen to vulgarity and deny it's vulgar? That might take a highly developed legal and intellectual talent, but it doesn't represent the "ordinary citizen" that might expect plainer interpretations of obvious obscenity. This kind of cleverness looks to the "ordinary citizen" like a kind of elitist-enforced stupidity.
It's not the job of the Supreme Court to demonstrate it is "in touch" with the latest polls. It's the court's job to interpret the meaning of the laws, uphold the U.S. Constitution and apply past precedents to bear on current legal controversies. On cultural issues, Obama cannot make the case that Stevens is the mainstream, and the rest of the court is out to lunch. On obscenity, Stevens was in the minority of the court and clearly at odds with opinion polls and recent congressional votes to augment FCC fines on broadcast indecency.
Recent Supreme Court decisions have suggested that there are two kinds of corporations when it comes to the First Amendment. Most corporations can have their political speech curtailed in the name of "democracy" or "citizen power," but media and entertainment corporations are a privileged class. To Stevens and his allegedly "in-touch" colleagues, they are apparently the angelic, do-no-wrong conglomerates who should not be restrained in any way, especially when they're teaching the children all those colorful golf-course words.
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