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 more murky. 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 insuring 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 Paris 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 President 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,
President 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.
