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.
    —Justice Potter Stewart, concurring opinion in Jacobellis v. Ohio 378 U.S. 184 (1964), regarding possible obscenity in The Lovers.

This past weekend was the 50th Anniversary of the US Supreme Court’s decision on Jacobellis v. Ohio, in which Justice Stewart included his opinion that utilized the (now possibly over-used) expression “I know it when I see it.” Later he would state:

“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.”

We may have regretted it, but he wasn't the first to say it and he is definitely not the last. There is a reason such phrases become used to the point of annoyance (see: thinking outside of the box): they capture in some way a truth that sums up quickly why we think or feel about some thing or person in whatever particular way that we do. 

“I know it when I see it” is so apt in so many situations because “it” can be anything that is based on a subjective judgment or whose factors cannot be objectively measured or quantified, but our judgment or opinion on the matter is so strong, it appears to us to so obvious that it seems to be a matter of an objective conclusion.

This subjective judgment or opinion is usually tied to some thing(s) in which we have a deep emotional and intellectual (not to mention spiritual or religious) investment. Moreover, these subjective judgments and opinions are often tied to other significant judgments and opinions, so to question the judgment or opinion is more than just questioning that one particular assertion, it is also a questioning, or attacking, our worldview or paradigm.

This explains why some people can become so emotional, even outraged, over something as trivial as who is the greatest quarterback or what constitutes good fashion sense or what is the proper time to arrive at a particular social gathering. (It may also indicate that the person leads a rather superficial life.) When the matter involves politics and government, we see the same dynamics at work.  

Yes in political issues and policies, both domestic and foreign, we are usually dealing with some very critical matters that impact the lives of many people. But in the discourse that ensures, we see the same petty squabbling and emotions similar to those arguing over whether a particular movie was good or bad.

A significant reason for this is that although we may throw out this or that evidence to back up our stand, we are ultimately standing on subjective ground.  A subjective ground that also supports a whole host of other judgments and opinions, if not our entire paradigm. This is obvious in many of the political clashes in this country which are not about what we value, but how we prioritize those values.Most of us value our civil liberties, while at the same time value security for ourselves, our families and friends, and our state.  The debates often come down to not whether someone who breaks into house and steals our entertainment system or attempts to conduct some form of domestic or foreign terrorist act upon our soil, but over how much we are willing to allow our civil liberties to be infringed upon or ignored altogether in an effort to bring those people to justice.

In other words, where do we draw the proverbial line in the sand. The debates ensure because if that line is or isn't drawn in its proper place, we know it when we see it.

This can be clearly in the issue of freedom of speech, one of those deeply held values by many if not most of those in this country.  Moreover, the First Amendment of our Constitution states clearly that "Congress shall make no law...abridging the freedom of speech..." At the same time, most people would agree that there is some speech that is not protected by the First Amendment ("yelling fire in a crowded movie house") and that Congress or other political bodies can prohibit. Again, the question is where do we draw the line.

One of the most ambiguous and debated forms of speech deemed not protected by the First Amendment is obscenity. I was brought to this topic by Laura Miller‘s review of Kevin Birmingham’s “The Most Dangerous Book: The Battle for James Joyce’s ‘Ulysses,’” on Slate's website, which dealt with the obscenity trials in 1921 and 1933 regarding the publication of this book in the United States, first by The Little Review and then later Random House.

I was unaware that "Ulysses" had been banned or censored in this country for being obscene, but found the reasoning as explained in the review interesting:

The obscenity laws that banned the novel in America and England were supposedly meant to “protect the delicate sensibilities of female readers.” The first major push against the Little Review in the early 1920s was initiated by a businessman who discovered a copy of the magazine among his teenage daughter’s possessions and freaked out after reading the section of “Ulysses” Joyce called “Nausicca.” (It features a young girl named Gertie MacDowell displaying her legs to protagonist Leopold Bloom at the beach. The businessman’s daughter claimed she never bought the magazine and that it had simply appeared in the mail one day. Sure.) This protective outrage represented a holdover from 19th-century notions of novels (especially French novels) as dangerous reading for young girls. How easily their impressionable minds could be filled with dreams of passionate love and their moral fiber loosened! It was not men like Bloom the censors feared would be inflamed by books like “Ulysses,” but girls like Gertie MacDowell....Justices were not even expected to take the whole work into consideration. If innocent women and children could be tainted by exposure to its raciest passages, then the work was illegal in the U.S.

So at that time of its ban, it was made unavailable to all citizens because of its possible corrupting influence on some of its citizens. But the second trial in 1933 overturned the ban, a decision that was upheld the United States Court of Appeals for the Second Circuit and then affirmed by the Supreme Court. "Ulysses" was allowed to be published because of it had literary value as whole, and therefore was not in the eyes of the court obscene.

But one of the fall outs of the battle was the first loss by The Little Review and its editors Margaret Anderson and Jane Heap:

Anderson and Heap were subsequently required to restrict the magazine’s content to less inflammatory material, eventually removing their motto "Making No Compromise with the Public Taste" from the magazine’s cover page in 1921. Disheartened by the trial, the lack of support from the intellectual community, and the future outlook for art in America, Anderson considered ceasing to publish The Little Review, and eventually ceded control of the magazine to Heap.

One just might say that Margaret Heap was feeling a bit like a defeated liberal.  Which, of course, all reminded me of a blog I wrote just over three years ago Howl of the Defeatist Liberal.

That blog also dealt with another obscenity trial, this one dealing with an obscenity trial, this one in 1957.  As Stanley Fish puts it in his op-ed article “Literary Criticism Comes to the Movies,”:

….through a re-enactment of the [Lawrence] Ferlinghetti trial which sought to prove that Ferlinghetti was “publishing and distributing an obscene work, that is, a work that appeals only to prurient interests, has a tendency to incite lustful thoughts and has no redeeming social or literary value.

The victory of "Ulysses" was not that anything one considered to be of literary or artistic value could be published and distributed. If the "community" deemed it had no value, and was obscene, then it was illegal to put it out to the public. "Howl" won because it was decided by the courts that it did have literary value.

Today, things have not much changed since "Howl" went to trial. 

A comprehensive, legal definition of obscenity has been difficult to establish. Yet key components of the current obscenity test stem from a District Court case tried in 1933. United States v. One Book Called “Ulysses”  [1934], …[which] determined that a work investigated for obscenity must be considered in its entirety and not merely judged on its parts.

Currently, obscenity is evaluated by federal and state courts alike using a tripartite standard established by Miller v. California [1973]….The Miller test for obscenity includes the following criteria: (1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’ (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.

We use the word "obscene" in a variety of context. But legally it deals with only those things which regard that which "appeals to ‘prurient interest.'" Moreover, the standards by which are to be used are the contemporary community's. Obviously these standards are constantly evolving, and differ from individual to individual.  It would be difficult to get three people to fully agree on such standard, let alone something as large as the United States. 

But one of the questions that comes from this is why is just prurient interests that are considered to be across that line to which protection from the First Amendment is lost?

In her article “Why violence, but not sex, is protected by the First Amendment,” Alison Frankel addresses this question. She wrote in the days just after James Holmes killed 12 people, and wounded many others, in a mass shooting at the Batman movie in Aurora, Colorado. She writes:

You can’t even restrict the sale of violent videogames to children. [In 2011], in Brown v. Entertainment Merchants Association – the Supreme Court’s most recent examination of the intersection between blood, gore and the First Amendment – Justice Samuel Alito [who would join the majority opinion] did some independent research on the depths of depravity in videogames on the market. “In some of these games, the violence is astounding,” he wrote. “Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.”

Alito found that players in some games could re-enact the mass murders at Columbine and Virginia Tech, pretending to be the shooters. Or they could be rapists, or genocide perpetrators, or presidential assassins. “If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence,” Alito wrote.

I am no fan of Alito (who would go on to join the majority on the decision), but what he describes should be disturbing to all of us. I find much of what he describes as obscene, more so than much of what is deemed legally obscene in this country.  As one might say, I know it when I see it.

Yet Scalia wrote for the majority in the decision:

In crafting the videogame restriction, the state of California had attempted, in Scalia’s words, “to shoehorn speech about violence into obscenity,” modeling its statute on the 1968 Supreme Court ruling in Ginsberg v. New York, which permitted New York to bar the sale of obscene materials to minors, and on the 1973 decision in Miller v. California, which set forth a specific test for what sort of pornography falls outside of the scope of the First Amendment. The justices said the state’s attempt to limit restrictions on the games children may buy couldn’t save the law. “Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them,” the court said, quoting a 1973 opinion called Erznoznik v. Jacksonville.

Yet even Alison Frankel admits:

We don’t really know if violence in entertainment leads to violence in reality, but it doesn’t really matter because it’s unconstitutional to restrict depictions of violence. That’s what the Supreme Court has said, repeatedly: You can restrict pornography, but you can’t legislate against violent images.

In my past blog I linked to above, I wrote then as to why I was a (somewhat) defeatist liberal: The short explanation would be that being a defeatist liberal comes from concluding that I live in a country which does not broadly embrace a liberal perspective and therefore liberal socio-political achievements will be rare, if not non-existent at times.

Justice Stewart wrote in another case involving obscenity (although he joined the majority on decision):

Censorship reflects a society's lack of confidence in itself. It is a hallmark of an authoritarian regime. Long ago those who wrote our First Amendment charted a different course. They believed a society can be truly strong only when it is truly free. In the realm of expression they put their faith, for better or for worse, in the enlightened choice of the people, free from the interference of a policeman's intrusive thumb or a judge's heavy hand. So it is that the Constitution protects coarse expression as well as refined, and vulgarity no less than elegance. A book worthless to me may convey something of value to my neighbor. In the free society to which our Constitution has committed us, it is for each to choose for himself.

One could argue that this pretty well sums up the liberal view on censorship. It is not about including more types of materials, such as violent video games, under those kinds of speech that lose the protection of the First Amendment. If anything it would be to include less kinds of speech already not protected. It is the conservatives that seek an authoritarian regime in order to impose their agenda on what is and isn't available to all of us.

Justice Douglas wrote in dissent to that same case:

...he strongly objected to the majority’s decision. He found the First Amendment to be an absolute that harbored no exclusion for the obscenity that the rest of the court had found. While he admitted that the material that had been sold to minors could be harmful, Douglas was concerned that the ruling would set a precedent that could be perpetuated to "protect" other segments of society from anything the government might deem obscene. He finished by saying the definition of obscenity is impossible to determine because it is highly subjective and laments that the court is forced to sit as the nation's board of censors.

There is a deep ambivalence about this issue. Part of me embraces the words of Justice Douglas, as well as those of Justice Stewart, on this matter of censorship. Yet we have to live with the consequences of allowing everything out there, whether deemed obscene or not, by the community or just ourselves.  In this age of technology, which is ever evolving, access to the various forms of speech by children, young adults, and those who mental states are not well-balanced is ever expanding and evolving. 

We know it when we see it, but as Justice Douglas states, what we know is a subjective matter, even though we so clearly see it. As a liberal I have to say we just have to adjust to the consequences of opening the flood gates.  But unlike Margaret Anderson, I do see a little more hope regarding the outlook on America on this matter. But not much because I know what I see.