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. It has been a common expression since at least the 19th century. A similar phrase appears in A. 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:

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 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:

  1. The average person, applying local community standards, looking at the work in its entirety, must find that it appeals to the prurient interest.
  2. The work must describe or depict, in an obviously offensive way, sexual conduct, or excretory functions.
  3. The work as a whole must lack "serious literary, artistic, political, or scientific values".

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, 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

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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