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    I know it when I see it

    I know it when I see it

    The phrase "I know it when I see it" is a colloquial expression by which a speaker attempts to categorize an observable fact or event, although the category is subjective or lacks clearly defined parameters. The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio.[1][2] In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:

    The expression became one of the best-known phrases in the history of the Supreme Court.[4] Though "I know it when I see it" is widely cited as Stewart's test for "obscenity", he never used the word "obscenity" himself in his short concurrence. He only stated that he knows what fits the "shorthand description" of "hard-core pornography" when he sees it.[5]

    Stewart's "I know it when I see it" standard was praised as "realistic and gallant"[6] and an example of candor.[7] It has also been critiqued as being potentially fallacious, due to individualistic arbitrariness.[8][9]


    The Supreme Court of the United States' rulings concerning obscenity in the public square have been unusually inconsistent. Though First Amendment free speech protections have always been taken into account, both Constitutional interpretationalists and originalists have limited this right to account for public sensibilities. Before Roth v. United States in 1957, common law rules stemming from the 1868 English case Regina v. Hicklin have articulated that anything which "deprave[s] and corrupt[s] those whose minds are open to such immoral influences" was said to be obscene, and therefore banned.[10] The Roth case gave a clearer standard for deciding what constitutes pornography, stating that obscenity is material where the "dominant theme taken as a whole appeals to the prurient interest", and that the "average person, applying contemporary community standards" would disapprove of, reaffirming the 1913 case United States v. Kennerley. This standard allowed for many works to be called obscene, and though the Roth decision acknowledged "all ideas having even the slightest redeeming social importance ... have the full protection of guaranties [sic]", the Justices put public sensibility above the protection of individual rights.

    Jacobellis v. Ohio[11] (1964) narrowed the scope of the Roth decision. Justice Potter Stewart, in his concurrence to the majority opinion, created the standard whereby all speech is protected except for "hard-core pornography". As for what, exactly, constitutes hard-core pornography, Stewart said "I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that." The film in question was Louis Malle's The Lovers.

    This was modified in Memoirs v. Massachusetts (1966), in which obscenity was defined as anything patently offensive, appealing to prurient interest, and of no redeeming social value. Still, however, this left the ultimate decision of what constituted obscenity up to the whim of the courts, and did not provide an easily applicable standard for review by the lower courts. This changed in 1973 with Miller v. California. The Miller case established what came to be known as the Miller test, which clearly articulated that three criteria must be met for a work to be legitimately subject to state regulations. The Court recognized the inherent risk in legislating what constitutes obscenity, and necessarily limited the scope of the criteria. The criteria were:

    The third criterion pertains to judgment made by "reasonable persons" of the United States as a whole, while the first two pertain to that of members of the local community. Due to the larger scope of the third test, it is a more ambiguous criterion than the first two.


    In 1981 Justice Stewart commented about his second thoughts about coining the phrase. "In a way I regret having said what I said about obscenity—that's going to be on my tombstone. When I remember all of the other solid words I've written," he said, "I regret a little bit that if I'll be remembered at all I'll be remembered for that particular phrase."[12]

    See also[edit]


    External links[edit]

    Yazı kaynağı : en.wikipedia.org

    Obscenity Case Files: Jacobellis v. Ohio (“I know it when I see it”)


    In the last edition of the Obscenity Case Files series, we discussed the Pope v. Illinois decision and how it impacted the Miller Test for identifying obscene material, which is not protected by the First Amendment. In this edition, we’ll take a look at Jacobellis v. Ohio, a decision that pre-dates Miller v. California, to shed some light on the infamous “I know it when I see it” language.

    Knowing It When You See It

    In his concurring opinion in the 1964 Jacobellis v. Ohio case, Supreme Court Justice Potter Stewart delivered what has become the most well-known line related to the detection of “hard-core” pornography: the infamous “I know it when I see it.” statement. justice

    As far as unintentionally comical lines in judicial opinions go, “I know it when I see it” is as good as it gets. The phrase immediately invokes images of black-robed Supreme Court justices pouring over pornographic magazines and screening “adult” movies, paying special attention to whether or not the materials tickle their “prurient interests.” You’d be hard pressed to find a First Amendment analyst or constitutional law professor who doesn’t have at least one “I know it when I see it” joke on hand.

    Justice Stewart, the story goes, developed his eye for smut when he was stationed as a Navy lieutenant in Casablanca during World War II. While there, he had taken a gander at the locally produced pornography his men brought back to his ship. As this quote from his former law clerk shows, Stewart relied on his acquaintance with Moroccan pornography when he espoused his belief that he would know when he was seeing pornography so hard-core that it should be considered obscene:

    The Lovers

    Jacobellis v. Ohio (1964) was the case Justice Stewart and his law clerk were hammering away at when they came to their “I know it when I see it” epiphanies.les-amants

    Nico Jacobellis, the defendant in the case, was the manager of an art-house theater in Cleveland Heights, Ohio. Ohio authorities had taken issue with his public exhibition of the film The Lovers (Les Amants) at his theater, convicted him of criminal charges and fined him $2,500. According to Ohio authorities, The Loversa French film about a woman involved in adultery who rediscovers human love — contained subject matter prohibited by Ohio’s obscenity statutes. After the Supreme Court of Ohio upheld Jacobellis’ conviction, the case ended up before the U.S. Supreme Court.

    The Supreme Court ultimately decided The Lovers warranted First Amendment protection and reversed Jacobellis’ conviction. The Court, however, could not agree on a rationale for determining what constituted prohibitively obscene subject matter. Despite a majority of the Justices concluding that Jacobellis’ conviction should be reversed, the Court’s final ruling was fragmented. It included one majority opinion and four concurring opinions (none supported by more than two Justices) in which each author attempted to clarify what he believed was an appropriate characterization of how the First Amendment should apply to allegedly obscene material.

    The reasoning in the opinions supporting reversal ranged from Justice Hugo Black’s position that the First Amendment does not permit censorship of any kind (joined by Justice William O. Douglas) to Justice Brennan’s reluctance to conclude that The Lovers was “utterly without redeeming social importance” (joined by Justice Goldberg).

    tumblr_mgaj4wjJ2T1qhu7kuo1_500Additionally, two justices authored dissenting opinions, indicating they favored upholding Jacobellis’ conviction. These Justices believed Ohio’s action was consistent with the Court’s prior obscenity rulings (see Roth v. United States) and that states should have “wide, but not federally unrestricted” power to ban obscene films (Chief Justice Earl Warren and Justice John Marshall Harlan II, respectively).

    By far, the most famous of the Court’s opinions was Stewart’s concurrence, which contained the “I know it when I see it” language reproduced above.


    Post Jacobellis, the Supreme Court held a scattered position on what constituted obscene speech. It wasn’t until the 1973 Miller v. California decision and its implementation of the three-prong test for obscenity that the Court officially made the move to a more objective rationale. Although Justice Stewart’s reluctance to set a “bright line” rule for flushing out hard-core pornography was much better for the development of obscenity jurisprudence than the Court creating a list of actions or words that are per-se obscene, it is hard to see how society would benefit from select authority figures basing criminal convictions on their ability to subjectively “know when they see” unprotected speech.

    Current obscenity law may not be perfect, but the Court’s adoption of an objective standard for determining a works’ merit or artistic value, rather than an “I know it when I see it” standard, benefits comic book creators and retailers. At the very least, it guarantees the relevance of the work they create and sell will not be decided based solely on what various authority figures have known or seen.

    Please help support CBLDF’s important First Amendment work and reporting on issues such as this by making a donation or becoming a member of the CBLDF!

    Rick Marshall is an attorney who recently finished work on a legal master’s degree in Intellectual Property law at the George Washington University Law School. Check out his musings on the intersection of music and copyright law at his website www.copynoise.com.

    Yazı kaynağı : cbldf.org

    Movie Day at the Supreme Court or "I Know It When I See It": A History of the Definition of Obscenity

    Movie Day at the Supreme Court or

    What is "obscene" under U.S. law has plagued our courts for the last fifty years. Many people don't realize that in our society, which trumpets free speech, that there are many restrictions on speech, including restrictions on adult or sexual images and words - or "obscene" materials.

    Other forms of unprotected or regulated speech include: speech which creates a clear and present danger of imminent lawless action; speech which contains narrowly predefined "fighting words"; written or spoken untruths (libel, slander, fraud) which may be punished by civil suit; speech which is false or deceptive advertising; speech which threatens others; and speech with restrictions justified because the government can demonstrate a "narrowly tailored" "compelling interest".

    "Obscene" speech is "unprotected" speech as ruled by the Supreme Court. "Unprotected speech," means speech that does not enjoy First Amendment protection and may even be criminal to express.

    In 1964, Justice Potter Stewart tried to explain "hard-core" pornography, or what is obscene, by saying, "I shall not today attempt further to define the kinds of material I understand to be embraced... [b]ut I know it when I see it ..."

    This quote, and the intent behind it, is well known as summarizing the irony and difficulty in trying to define obscenity. For at least fifty years, the Supreme Court has been struggling with defining what speech is "obscene".

    It is surprising that the difficulty in defining obscenity in our history did not fully begin until the mid-1900s. Supreme Court Justice Brennan, who served from 1956 to 1990, who was one of the great, and often liberal, legal minds of the 20th century, attempted repeatedly to define obscenity. The task was much more daunting than he had anticipated.


    The book The Brethren, by Watergate reporter Bob Woodward, outlines the behind-the-scenes battles of the Supreme Court during the 1960's and 1970's and provides an interesting background to the obscenity cases decided during that period. The most important case during that time was Miller v. California, which still defines obscenity today.

    The Brethren describes Supreme Court "movie day" – when the law clerks and the Justices sat down to eat popcorn and see the porn films for the cases awaiting decisions. Justice Hugo Black, who served from 1937 to 1971, always refused Movie Day by saying "if I want to go see that film, I should pay my money." Justice Black and Justice William Douglas, who served from 1939 to 1975, at the time were the only two Justices who believed that speech should be entirely free of restrictions.

    According to The Brethren, the law clerks that drafted the Justices' opinions created the following short hand for how their bosses decided if material was obscene:

    These were the opinions of the more liberal Justices.

    The First Definition

    In 1957, Brennan crafted the first Supreme Court legal definition of obscenity in the case of Roth v. United States. Although indirectly addressed in the law to this point, Roth's formal legal holding on pornography was a case of first impression for the US Supreme Court. Brennan held that the First Amendment did not protect obscene materials.

    The definition of obscenity set forth in Roth was:

    By 1964, lower courts had misapplied the Roth standard resulting in many cases for Court review. Thus, the Court tried to clarify this standard by adding another requirement for obscenity in later opinions – that the material goes "substantially beyond customary limits of candor in description or representation." The Court also clarified that the "community" referred to in the definition was as the national, not local, community. This clarification resulted in a more liberal definition of obscenity going forward.

    The Second and Current Definition

    The tide turned more conservatively on free speech and sex when two liberal elements – Chief Justice Earl Warren, an Eisenhower appointee, resigned in 1969 and Black, a Roosevelt appointee, resigned in 1971. President Nixon appointed two replacements, Chief Justice Warren Burger and Justice William Rehnquist, along with two other appointees Justice Harry Blackmum and Justice Lewis Powell. With the arrival of Rehnquist and Burger, the Court opinions on obscenity became more conservative.

    In the summer of 1973, the Court decided a group of pornography/obscenity cases that set the standards for the future of pornography. In his Dissent in one of these cases, Justice Brennan wearily admitted:

    Unfortunately, this realization came too late and without support from the majority of the Court.

    Thus, in 1973, in Miller v. California, Justice Burger announced the second definition of obscenity - the majority position of the Court, and the definition, which, more or less, is still in effect today. It is as follows:

    This holding specifically replaced the old test and also held that community standards could be local rather than national. This change swung the pendulum back toward a more conservative definition of "obscenity" by local, some times rural communities.

    As many had complained that these rulings were so vague that they were impossible to comply by those trying to obey the law, the Court set forth examples of what was "hard core", or that which the Court considered obscene and illegal. The Court's list of illegal acts was as follows:

    Clarifications and Today's Definition

    Since Miller, the Court has clarified and explained aspects of the Miller standard:

    Additionally the Court has created a sort of middle category of materials – "indecent" materials that are protected speech. Indecent materials are defined as those which show "nonconformance with accepted standards of morality." After reviewing the above, most persons, including lawyers, remain confused about what is and is not legally permissible.

    The Definition of Child Pornography

    In New York v. Ferber in 1982, the Court held that "the States are entitled to greater leeway in the regulation of pornographic depictions of children" because:

    The Court then declared a more conservative Miller standard applicable for child pornography:


    What persons in the sex industry typically fail to understand is how conservative the legal standards for pornography are and how vulnerable to prosecution they truly are due to these vagaries. One reading of the personal obscenity tests of the liberal justices of the past makes that clear.

    What the Miller test outlines is the outer most limits on banning sexual speech. Thus, nearly all legislation at the both state and federal level, simply copies the Miller test into its language since substitution of even a single word can result in the law being held unconstitutional. The result is that application of the Miller test – what "prurient", "patently offensive", or having "social, artistic or scientific value" is, and what the local standard are for such decisions - rests squarely in the hands of the juries of each state. In the end, the Court concluded that this decision was one that must be made by each state, not the Supreme Court.

    Yazı kaynağı : corporate.findlaw.com

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