I know it when I see it

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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. It has been a common expression since at least the 19th century. A similar phrase appears in Arthur Conan Doyle's "The Hound of the Baskervilles," in which Sherlock Holmes comments on the quality of a portrait by stating "I know what is good when I see it." 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:

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I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description ["hard-core pornography"], 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. [3]

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 did not use the word "obscenity" himself in his short concurrence, but stated that he knew what fitted the "shorthand description" of "hard-core pornography" when he saw 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]

This simple phrase, embedded in a plurality opinion, carries with it many of the conflicts and inconsistencies that continue to plague American obscenity law. In effect, "I know it when I see it" can still be paraphrased and unpacked as: "I know it when I see it, and someone else will know it when they see it, but what they see and what they know may or may not be what I see and what I know, and that's okay."

— William T. Goldberg

History

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 [ Louis Malle's The Lovers ] is not that."

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:

  1. whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
  2. whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and
  3. whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The third criterion pertains to judgment made by "reasonable persons" of the United States as a whole, while the first pertains 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, Stewart said of 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, I regret a little bit that if I'll be remembered at all I'll be remembered for that particular phrase. [12]

See also

Related Research Articles

The Millertest, also called the three-prong obscenity test, is the United States Supreme Court's test for determining whether speech or expression can be labeled obscene, in which case it is not protected by the First Amendment to the United States Constitution and can be prohibited.

Miller v. California, 413 U.S. 15 (1973), was a landmark decision of the U.S. Supreme Court clarifying the legal definition of obscenity as material that lacks "serious literary, artistic, political, or scientific value". The ruling was the origin of the three-part judicial test for determining obscene media content that can be banned by government authorities, which is now known as the Miller test.

Roth v. United States, 354 U.S. 476 (1957), along with its companion case Alberts v. California, was a landmark decision of the Supreme Court of the United States which redefined the constitutional test for determining what constitutes obscene material unprotected by the First Amendment. The Court, in an opinion by Justice William J. Brennan Jr. created a test to determine what constituted obscene material: Whether the average person, applying contemporary community standards would find that the material appeals to a prurient interest in sex, and whether the material was utterly without redeeming social value. Although the Court upheld Roth’s conviction and allowed some obscenity prosecutions, it drastically loosened obscenity laws. The decision dissatisfied both social conservatives who thought that it had gone too far in tolerating sexual imagery, and liberals who felt that it infringed on the rights of consenting adults.

Jacobellis v. Ohio, 378 U.S. 184 (1964), was a United States Supreme Court decision handed down in 1964 involving whether the state of Ohio could, consistent with the First Amendment, ban the showing of the Louis Malle film The Lovers, which the state had deemed obscene.

Stanley v. Georgia, 394 U.S. 557 (1969), was a landmark decision of the Supreme Court of the United States that helped to establish an implied "right to privacy" in U.S. law in the form of mere possession of obscene materials.

<span class="mw-page-title-main">Duck test</span> Classification based on observable evidence

The duck test is a form of abductive reasoning. This is its usual expression:

If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

The Hicklin test is a legal test for obscenity established by the English case R. v Hicklin (1868). At issue was the statutory interpretation of the word "obscene" in the Obscene Publications Act 1857, which authorized the destruction of obscene books. The court held that all material tending "to deprave and corrupt those whose minds are open to such immoral influences" was obscene, regardless of its artistic or literary merit.

New York v. Ferber, 458 U.S. 747 (1982), was a landmark decision of the U.S Supreme Court, unanimously ruling that the First Amendment to the United States Constitution did not protect the sale or manufacture of child sexual abuse material and that states could outlaw it.

Kois v. Wisconsin, 408 U.S. 229 (1972), was a ruling by the U.S. Supreme Court in the case of the obscenity conviction of Milwaukee editor-publisher John Kois, whose underground newspaper Kaleidoscope had published two small photographs of pictures of nudes and a sexually-oriented poem entitled "Sex Poem" in 1968. The Supreme Court ruled that, in the context in which they appeared, the photographs were rationally related to a news article which they illustrated and were thus entitled to Fourteenth Amendment protection, and that the poem "bears some of the earmarks of an attempt at serious art", and thus was not obscene under the Roth v. United States test. In the words of the concurring opinion of Justice William O. Douglas, "In this case, the vague umbrella of obscenity laws was used in an attempt to run a radical newspaper out of business and to impose a two-year sentence and a $2,000 fine upon its publisher. If obscenity laws continue in this uneven and uncertain enforcement, then the vehicle has been found for the suppression of any unpopular tract. The guarantee of free expression will thus be diluted and in its stead public discourse will only embrace that which has the approval of five members of this Court."

MANual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), is a decision by the Supreme Court of the United States in which the Court held that magazines consisting largely of photographs of nude or near-nude male models are not considered "obscene" within the meaning of 18 U.S.C. § 1461, which prohibits the mailing of obscene material. It was the first case in which the Court engaged in plenary review of a Post Office Department order holding obscene matter "nonmailable".

Redrup v. New York, 386 U.S. 767 (1967), was a May 8, 1967 ruling by the Supreme Court of the United States, widely regarded as the end of American censorship of written fiction. Robert Redrup was a Times Square newsstand clerk who sold two of William Hamling's Greenleaf Classics paperback pulp sex novels, Lust Pool and Shame Agent, to a plainclothes police officer. He was tried and convicted in 1965.

Patently offensive is a term used in United States law regarding obscenity under the First Amendment.

An obscenity is any utterance or act that strongly offends the prevalent morality of the time. It is derived from the Latin obscēnus, obscaenus, "boding ill; disgusting; indecent", of uncertain etymology. Generally, the term can be used to indicate strong moral repugnance and outrage in expressions such as "obscene profits" and "the obscenity of war". As a legal term, it usually refers to descriptions and depictions of people engaged in sexual and excretory activity.

United States v. Thirty-seven Photographs, 402 U.S. 363 (1971), is a United States Supreme Court decision in an in rem case on procedures following the seizure of imported obscene material. A 6–3 court held that the federal statute governing the seizures was not in violation of the First Amendment as long as the government began forfeiture proceedings within 14 days of the seizure.

United States v. 12 200-ft. Reels of Film, 413 U.S. 123 (1973), was an in rem case decided by the United States Supreme Court that considered the question of whether the First Amendment required that citizens be allowed to import obscene material for their personal and private use at home, which was already held to be protected several years earlier. By a 5–4 margin, the Court held that it did not.

Quantity of Books v. Kansas, 378 U.S. 205 (1964), is an in rem United States Supreme Court decision on First Amendment questions relating to the forfeiture of obscene material. By a 7–2 margin, the Court held that a seizure of the books was unconstitutional, since no hearing had been held on whether the books were obscene, and it reversed a Kansas Supreme Court decision that upheld the seizure.

United States obscenity law deals with the regulation or suppression of what is considered obscenity and therefore not protected speech or expression under the First Amendment to the United States Constitution. In the United States, discussion of obscenity typically relates to defining what pornography is obscene, as well as to issues of freedom of speech and of the press, otherwise protected by the First Amendment to the Constitution of the United States. Issues of obscenity arise at federal and state levels. State laws operate only within the jurisdiction of each state, and there are differences among such laws. Federal statutes ban obscenity and child pornography produced with real children. Federal law also bans broadcasting of "indecent" material during specified hours.

Marks v. United States, 430 U.S. 188 (1977), is a case decided by the Supreme Court of the United States that explained how the holding of a case should be viewed where there is no majority supporting the rationale of any opinion.

Rabe v. Washington, 405 U.S. 313 (1972), was a decision by the United States Supreme Court involving the application of obscenity laws and criminal procedure to the states. On 29 August 1968, William Rabe, the manager of a drive-in movie theater in Richland, Washington, was arrested on obscenity charges for showing the film Carmen, Baby. Due to First Amendment concerns, the local court convicted Rabe not on the basis that the film as a whole was obscene, but that exhibiting it in a drive-in theater was. The Supreme Court reversed the conviction holding that the citizens of Washington had no notice under the Sixth Amendment that the place where a film was shown was an element of the offense.

Ginzburg v. United States, 383 U.S. 463 (1966), was a decision by the United States Supreme Court involving the application of the First Amendment to Federal obscenity laws. One of a trio of cases, Ginzburg was part of the Supreme Court's attempt to refine the definitions of obscenity after the landmark 1957 case Roth v. United States.

References

  1. ↑ Peter Lattman (September 27, 2007). "The Origins of Justice Stewart's 'I Know It When I See It'". LawBlog at The Wall Street Journal Online. Retrieved December 31, 2014.
  2. ↑ Peter S. Vogel (December 8, 2010). "SCOTUS: From Pornography's 'I Know It When I See It' to Social Media's 'I Don't Get It'". E-Commerce Times. Retrieved December 31, 2014.
  3. ↑ 378 U.S. at 197 (Stewart, J., concurring) (emphasis added).
  4. ↑ Gewirtz, Paul (1996). "On 'I Know It When I See It'". Yale Law Journal . 105 (4): 1023–1047. doi:10.2307/797245. JSTOR   797245.
  5. ↑ 378 U.S. at 197 (Stewart, J., concurring) (emphasis added).
  6. ↑ Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America, p. 40 (1988)
  7. ↑ Richard A. Posner, Law and Literature: A Misunderstood Relation p. 308 (1988)
  8. ↑ Baskin, Barry (November 16, 2018). Implicit Bias in the Courtroom (PDF) (Speech). 2018 Afternoon Plenary Speakers. Contra Costa County, California: Contra Costa County Bar Association. Retrieved November 29, 2018.
  9. ↑ Goldberg, William (October 2010). "Two Nations, One Web: Comparative Legal Approaches To Pornographic Obscenity By The United States And The United Kingdom" (PDF). Boston University Law Review. 90: 2121–2148. Retrieved November 29, 2018.
  10. ↑ Roth v. United States. The Oyez Project at IIT Chicago-Kent College of Law. February 8, 2012.
  11. ↑ Jacobellis v. Ohio. The Oyez Project at IIT Chicago-Kent College of Law. February 8, 2012.
  12. ↑ Kamen, Al (December 8, 1985). "Retired High Court Justice Potter Stewart Dies at 70". The Washington Post . Retrieved January 2, 2015.
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