On "I Know It When I See It." (Supreme Court Justice Potter Stewart's Famous Opinion regarding Pornography)

Article excerpt

My subject is one of the most famous phrases in the entire history of Supreme Court opinions: "I know it when I see it." The phrase appears in Justice Potter Stewart's concurring opinion in Jacobellis v. Ohio,(1) a pornography case decided by the Court in 1964. Although many people have appropriated the phrase--some approvingly, some not--no one has ever examined it in any way commensurate with its fame. But the phrase repays reflection. Aside from its provocative place in the history of pornography regulation, "I know it when I see it" invites us to reappraise the role of nonrational elements in judicial decisionmaking, which I think deserve both more attention and more acceptance than they typically enjoy. Such a reappraisal is my underlying purpose here.

Jacobellis v. Ohio involved a theater owner who had been convicted for showing The Lovers, an early film directed by the marvelous French filmmaker Louis Malle. The story in The Lovers concerns a woman in an unhappy marriage--the woman was played by the actress Jeanne Moreau--and the claim that the film was obscene rested almost entirely upon a scene of lovemaking toward the end of the film. The leading First Amendment cases concerning pomography at the time were Roth v. United States and Alberts v. California,(2) decided shortly before Potter Stewart joined the Court. These cases offered a three-part characterization of suppressible pornography: It "appeal[s] to prurient interest," "goes substantially beyond customary limits of candor," and is "utterly without redeeming social importance."(3) But by 1964, when Jacobellis came to the Court, the Justices were sharply divided about what the earlier cases meant and how the Court should treat pornography.

By a 6-3 vote, the Supreme Court reversed the Jacobellis conviction. But the Court was utterly fragmented. There were seven separate opinions, and no majority opinion-indeed, not one of the seven opinions received more than two votes. In his famous, if brief, concurring opinion, Justice Stewart concluded that the film was protected by the First Amendment since it was not "hard-core pornography":

It is possible to read the Court's opinion in Roth v. United States and Alberts v. California 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, 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.(4)

There is not much about the phrase "I know it when I see it" that is startling in itself. If we heard it at a dinner party, few heads would turn. Indeed, there is something familiar about both its rhetoric and content, its symmetrical equation of seeing and knowing, and its insistence that some knowledge comes immediately from seeing, not from deliberating. The phrase has a vague resonance with other popular phrases having a similar rhetorical structure and content: "Seeing is believing." "Out of sight out of mind." "Takes one to know one." Yet it did startle, even shock, when it appeared, and it continues to do so today. The shock derives totally from its location within a Supreme Court opinion, since both its rhetoric and its content are so unusual in that context.

The reactions to "I know it when I see it" emerge against a backdrop of a set of traditional beliefs about the appropriate basis for judicial decisions and the appropriate content of judicial opinions. These beliefs arise from a wholly justified concern about the legitimacy of judicial power in a democracy, particularly in constitutional cases where unelected judges say "no" to the decisions of elected legislatures. …