"I Know It When I See It":

Justice Potter Stewart is famous for having proposed the "I know it when I see it" test about what constitutes obscenity (i.e., constitutionally unprotected pornography). Some have characterized the endorsement test, or the Establishment Clause caselaw dealing with religious speech more broadly, as reflecting the same view.

Many people who know the quote, though, don't know the follow-up: Nine years later Justice Stewart joined the dissent in Miller v. California, and would have thus held that such material is categorically constitutionally protected (at least where no unwilling viewers or underage viewers are involved). And the dissent's reasoning focused largely on the vagueness of the existing tests for what's constitutionally protected and what's not.

So Stewart thought he knew it when he saw it. But after seeing enough cases, it seems that he either lost confidence in his own ability to know what should be protected, or concluded that such a test was in any event no way to run a legal system.

Eh Nonymous (mail) (www):
Thanks for the helpful history, Prof. Volokh.

All of us out here in quoteland could stand to stop and reflect on the context and meaning of those great quips and one-liners we bandy about.

And while the change of heart of one particular (no longer seated) Justice isn't precedential, it certainly does tell us something about which direction he was thinking after years of screenings, in camera reviews, and endless, numbing, probably life-long-scarring deliveries of toys, magazines, films, photos, and Ghu alone knows what else at the Supreme Court. Remember, just because it's protected, doesn't mean it's _pleasant_.

Gracious, can you imagine looking at pornography involving _ugly_ people? All the way through, to determine if there's something protected or unprotected in there? As your job?

Pity the poor censors, whether priests or Chinese Community Party members or any other category. They have to look at _all_ of it, even when they don't want to, even the worst of it. Because there's no market there to help them out; they _can't_ wait until it hits the consumer, they have to do all the filtering themselves.
6.27.2005 6:53pm
Eh Nonymous (mail) (www):
"Communist" party. This is what happens when I don't type a given word very often. I substitute something else because my fingers are lazy.
6.27.2005 6:54pm
In both obscenity and religious monument cases, the Court faces the same issue of policing a ban on expression perceived to be improper without overtreading expression perceived to be legitimate.

The tests are quite similar. The work must be taken as a whole. the author/commissioners' motives are important, there is the same ordinary person test, etc. The key test is, more or less, whether the work, taken as a whole, and as seen by an ordinary person, (a) primarily appeals to the improper (prurient) interest in sex/religion, and (b) lacks redeeming social/secular value.

One could argue that if displaying a copy of Playboy won't destroy our form of government or end civilization as we know it, it's not clear that displaying a copy of the 10 commandments will, either.

But whatever ones views of the ultimate merits, a legal system in which each case is decided individually by its own standards, where the Supreme Court becomes a sort of national censorship board of platonic guardians to protect us from evils only it can recognize and whose nature it can't explain, has got to be the worst of all worlds. Such a system cannot be accepted as legitimate, and its decisions will never be accepted as final or authoratative. People will simply wait until a new justice with new opinions comes on board.
6.27.2005 7:21pm
unhyphenatedconservative (mail):
"People will simply wait until a new justice with new opinions comes on board."

I think that this illustrates how completely our judiocracy has become a rule of men and not law.
6.27.2005 7:24pm
I think it's worth reproducing the concurrence in full, because I don't think Stewart was actually saying what he is often assumed to have said:

<blockquote>It is possible to read the Court's opinion in <i>Roth v. United States</i> and <i>Alberts v. California</i>, 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 <b>what may be indefinable</b>. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court's decisions since <i>Roth</i> and <i>Alberts</i>, 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; <b>and perhaps I could never succeed in intelligibly doing so</b>. But I know it when I see it, <b>and the motion picture involved in this case is not that</b>.</blockquote>

<i>Jacobellis v. Ohio</i>, 378 U.S. 184, 197 (1964) (emphasis added). Stewart was not proposing a test for obscenity cases -- quite the opposite. Rather, he expresses clear doubts that a test is even possible (presaging his dissent in <i>Miller</i>), then concludes that <i>whatever the correct test is</i>, the type of material under consideration was clearly within First Amendment protection. I don't think he meant to propose a test of constitutionality under which a conviction could be upheld (as opposed to reversed) based on the intuitive sense of 5 justices of the Supreme Court whether the material was obscene.
6.27.2005 7:31pm
Doug Sundseth (mail):
"One could argue that if displaying a copy of Playboy won't destroy our form of government or end civilization as we know it, it's not clear that displaying a copy of the 10 commandments will, either."

I don't think it would. Let me know when courthouses start posting centerfold monuments.

It seems to me that there is a qualitative difference between requiring that a local government allow the sales of Playboy in a privately owned business, and requiring that the same government not "sell" a particular religion.

Leave selling to private interests, whether 7-11 or the Methodists.
6.27.2005 8:01pm
JF (mail):
It was, I believe, in Woodward's book, The Brethren that there is a report of the Supreme Court screenings of putative pornography with Justice Thurgood Marshall gleefully mocking Justice Stewart at.. ahem... climactic... moments of the film shouting.. "That's it! That's it!"
6.28.2005 10:10am
Eh Nonymous,

It's not clear that the job was so entirely unpleasant to everyone involved. U.S. News and World Report reported on 3/22/04: (See /whispers/articles/040322/22whisplead_2.htm)

"Newly released papers of late Supreme Court Justice Harry Blackmun reveal that porn evidence used in key obscenity cases is gone. A clerk's 1972 memo said that five magazines, a roll of film, and a book titled 69 were missing. Blackmun wrote: 'I think the chief justice felt that some law clerks of that year tucked them away and wanted to use them personally or for future speeches or something.'"

No doubt the speeches were about just how tough it was to be a Supreme Court law clerk, what with all the evidence one had to put up with and whatnot.
6.28.2005 10:45am