When Supreme Court Justice John Paul Stevens announced his retirement, President Obama promised he would appoint someone like Stevens, who "knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."
In the world of politics, that phrase is self-explanatory. In the cultural arena, it's murkier. When it comes to First Amendment cases on broadcast indecency, who is the "powerful interest" and who was the "ordinary citizen"? The roles are now reversed. The president can't use that analogy because the powerful interests are now in Hollywood, facing the millions of regular Americans who oppose graphic violence, gratuitous sex and avoidable profanity on television. Sadly, judges like Stevens have labored ever harder to protect perverse televised "expression" like orgy scenes or "wardrobe malfunctions" on CBS as somehow the sun-kissed summit of all free-speech causes.
It wasn't always so. Back in 1978, Justice Stevens wrote for the majority in the FCC vs. Pacifica "seven dirty words" case, ruling that the Federal Communications Commission had an important governmental objective in ensuring that children be protected from broadcast obscenities. Comedian George Carlin's "Filthy Words" routine, heavily "seasoned" with F-bombs and S-words, was aired without any edits or bleeps on a Pacifica-owned radio station in New York City, which caused one of those "ordinary citizens" to petition the FCC to put an end to it.
For the majority, Stevens ruled, "There is no basis for disagreeing with the Commission's conclusion that indecent language was used in this broadcast." Moreover, Stevens found that broadcast profanities could be uniquely accessible to children, even children who cannot read: "Pacifica's broadcast could have enlarged a child's vocabulary in an instant." This caused the FCC to ban dirty words during hours when children could be expected to be watching or listening in the audience.
The legal force of the Pacifica precedent waned over the years with the ascent of cable television, which is not technically on the "airwaves" and therefore has never been included in the FCC's indecency mandate. Claiming the mantle of artistic license, cable TV networks captured viewers (and enraptured TV critics) by pushing the frontiers of acceptable language so far back that even the "seven dirty words" began to lose their taboos.
Sadly, Stevens also "evolved" on the matter.
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.