As the decision in Stevens  came out yesterday after I’d gotten down to work, and has since been announced and discussed everywhere in the blawgosphere, there’s no point in mentioning that the Supreme Court, in a case that presented (hopefully) the most extreme example of speech unworthy of protection, upheld the First Amendment anyway. 

Need proof that people can be truly sick?  Watch a “crush film” and know that there are people who get sexual gratification from it.

For non-lawyers, it’s hard to comprehend why the Supremes would, by 8 to Alito , find a law prohibiting, criminalizing, this to be unconstitutional.  Doug Berman  has plucked the sentence from the opinion that explains.

We would not uphold an unconstitutional statute merely because the Government promised to use it responsibly.

While the law would criminalize the wrong of these sick, disgusting films, its sweep covers expression that isn’t wrong.  Our government’s answer is “trust us, we would never use an overbroad law to go after people who didn’t deserve it.”  Even a Supreme Court that’s moved so far right as to make Justice John Paul Stevens the leading liberal couldn’t tolerate that justification.  This is why “plain English” laws can’t work, despite their superficial appeal to those who blame obfuscating lawyers for all that ails society.

But this line presents another interesting problem.  While the Supreme won’t tolerate a law that’s overbroad merely because the government says “trust us,” they willingly, no happily, tolerate, no enable, men and women with guns, batons, tasers, moving amongst us with no real check on their conduct beyond the promise to use their weapons, their authority to seize and imprison, their ability to make people do as they say upon pain of . . . pain, based solely on their promise to use it responsibly.

While we applaud the Stevens decision for upholding the First Amendment in the face of such sickness as crush films, we ignore a gap of monumental proportions that falls into the same category. 

What good is scrutinizing laws to this extent when the reality on the street, when, as commenter Alan  put it so clearly,

the police do what they need to do to get the job done. Right or wrong, the police sometimes need to circumvent the letter of the law an instead use the spirit of the law to get these scumbags off the street.

The legitimacy of our entire system of criminal law depends not on the decision of member of the Harvard or Yale Clubs, but on the decision of one cop to raise his weapon and bring it down on the head of a human being.  This is the real crush, and it happens every day across this country.  There are a thousand battles fought in the war of government responsibility, and the Supreme Court shuts its eyes to them, too trivial for their notice.

It’s wonderful that the Court held that constitutionality can’t be left to the government’s promise to act responsibly.  It’s a shame that they do so anyway.  To any person who was stopped and frisked for no reason, or beaten, tased or shot because they comply with some cop’s demand, or sent to prison for lifetimes because a cop lied on the stand knowing that he can say anything, and as long as there’s no videotape to prove it, will get away with it and get a medal, this line from Stevens brings no comfort.

The government’s promise is only as good as the integrity of every cop on the street.  If only the Supreme Court realized this.

Update: Yesterday, a judge in Glendale did the California version of an ACD in the case of a woman , traveling with her 93 year old, wheel-chair bound mother, who tried to stop a TSA agent from seizing her cooler with applesauce so that her mother would have something that she could eat on a plane ride to a family wedding.  She was arrested, strip searched and prosecuted.  No word on what happened to the 93 year old mother left at the airport.

Los Angeles County Superior Court Judge Fred Rotenberg said he would dismiss the case against Nadine Kay Hays only if the grandmother of six stays out of trouble for the next six months. Prosecutors had no objections during the hearing at a Glendale courthouse.

The case generated national attention, drawing the ire of talk-radio hosts who railed against the TSA agents and challenged how confiscating a disabled woman’s applesauce would improve national security.

A TSA supervisor told officers that Hays made a fist and struck her on the hand as they tugged at an ice chest containing the snacks, according to the arrest report.

Hays has denied hitting the agent, maintaining that she brought down her hand to keep agents from taking away her mother’s applesauce, cheese and milk.

This is being reported as a victory for sanity over an overbearing abuse of authority by the TSA.  How many government agents, prosecutors and a judge had an opportunity to exercise that promise to use its power responsibly?  And after a year, the best they could come up with is an ACD?  Yet this aspect of the promise of responsibility eludes our Justices.