“I know it when I see it.”
“I know it when I see it.” has been called one of the most famous phrases in the entire history of the Supreme Court. It was written by Justice Potter Stewart in his concurrence with the court’s 1964 decision in Jacobellis v. Ohio, a case which determined that the film LES AMANTS was not obscene. Wrote Justice Stewart:
“It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which in those cases was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts,1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography. 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.”
When Justice Stewart wrote this famous phrase, the standard for determining obscenity had been laid forth in the 1957 case Roth v. United States. Reading from Jacobellis v. Ohio:
The test for obscenity is “whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” Roth v. United States, 354 U.S. 476. Pp. 191-195.A work cannot be proscribed unless it is “utterly without redeeming social importance,” and hence material that deals with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be held obscene and denied constitutional protection. P. 191.
The constitutional status of allegedly obscene material does not turn on a “weighing” of its social importance against its prurient appeal, for a work may not be proscribed unless it is “utterly” without social importance. P. 191.
Before material can be proscribed as obscene under this test, it must be found to go substantially beyond customary limits of candor in description or representation. Pp. 191-192.
The “contemporary community standards” by which the issue of obscenity is to be determined are not those of the particular [378 U.S. 184, 185] local community from which the case arises, but those of the Nation as a whole. Pp. 192-195.
In 1973 the standard laid forth in Roth was replaced by a standard laid forth in Miller vs. California, commonly refereed to as The Miller Standard:
(a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
I don’t see that Miller provides anymore guidance than Roth, but then I’m not a lawyer, I’m a filmmaker. But I did well in my civics class, and the very fact that obscenity can only be determined after a trial gives the entire concept of punishing the expression of ideas that cannot be known to be obscene at the time of their creation the reek of ex post facto, which is explicitly prohibited by our constitution.
But never-mind concerns about the slippery definition of obscenity, or pesky prohibitions on ex post facto laws, from where does the state derive its authority to regulate this (so-called) obscenity? It’s true enough that the First Amendment does not protect every utterance, but by what logic does the state gather into its grasp how we the people choose to talk about sex?
August 7th, 2007 at 7:35 am
Having just finished my “Sexuality and the Law” class, I was quite interested to read this post.
It seems as though laws around sex and sexuality are either intesely specific and convoluted, or far too open and vague. People are afraid of sex, and therefore make open ended and over reach laws so that should anything sexual make it to the court room, they have the option for re-defining it then and there for their own best interests.
Seems like we haven’t come that far from the Comstock Laws…
August 7th, 2007 at 7:44 am
Hello Shanna!
I think one of the most important parts of growing into our own sexuality is learning what is appropriate, with whom, and under what circumstances. And of course there is a big difference between what is stated as an ideal, what the practical realities are, and what is genuine transgression.
Photography is a relatively new invention and photographic images of nudity and sex open up all kinds of questions about what is appropriate.
For example, many people believe that if a maried person to masturbates, or even sees sexual images of someone other than their spouse, it is equivelent to adultry. Depending on the marriage, this may be emotionally true or spiritually true for one or both partners, but it’s not regarded as adultry under the law.
Other couples may regard this as sub-ideal, but tolerable, while still others may regard it as normal, or perhaps even an enhancement to their relationship. I don’t see any of these points of view as inherrently wrong. (I actually have relatively conservative ideas about fidelity, but being doctinaire makes for a tough life.)
From a legal standpoint, questions about “appropriateness” in photographic images of nudity and sexuality center around the question of whether or not a work is “obscene”. If a work is regarded as obscene, then it’s distribution is a criminal offense.
From a businesss standpoint, questions about “approriateness” center around whether or not a work is “pornographic”. If a work is regarded as pornographic, access to markets is significantly curtailed, and it becomes much more difficult to realize a return on investment.
I have another long post, prompted by Fad23’s comment, that I think paints a more detailed picture of the X-rating, the NC-17 rating, and the demise of grown-up filmmaking. I hope you’ll find it interesting reading!