A Useless Legal Standard: "I know it when I see it"

I found a very brief blog post on an organization called the ‘Mises Institute’.

I’ll share it here.

“I know it when I see it…” (Jacobellis v. Ohio, 1964, n.p.)

This fairly well-known statement (probably said before) came from the concurring opinion of Justice Potter Stewart in Jacobellis v. Ohio (1964). This First Amendment case eventually came before the Supreme Court and dealt with the issue of obscenity and pornography. A movie theater had shown a movie called The Lovers which had a sex scene in it. The question was whether the theater could be legally sanctioned for showing pornographic material, but there was a problem—there was no precise legal definition for obscenity or pornography!

Every time a workable definition seemed to be within grasp, it would die the death of a thousand qualifications because of all the exceptions. The Supreme Court decisions would apply and modify the concept of contemporary “community standards,” arguably another arbitrary and useless legal euphemism. Nevertheless, in Jacobellis v. Ohio (1964), a majority of the Court decided (6-3) that government(s) could legally sanction against obscenity and pornography under the First Amendment, but that the film in question did not constitute pornography. Cleverly, Justice 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.” (emphasis added)

While clever, such a statement undermines the natural rights ostensibly protected by the First Amendment because it arbitrarily restricts freedom of speech and expression to the ambiguous judgment call of government officials or judges.

In effect, Justice Stewart admitted the difficulty of defining obscenity and pornography, however, rendering his statement legally useless. The fact that this case came before the Supreme Court and they made a judgment call communicated that it is appropriate that nine justices ought to decide what was or was not “obscene,” by a legal definition, for millions of Americans. Not to mention the fact that these justices disagreed among themselves in a 6-3 decision!

Imagine if there was no posted speed limit or no such law and you got pulled over for going X miles per hour. What if the police officer applied this type of standard in order to hold you legally accountable? Even though there was no posted speed limit, the police officer could simply say, “I can’t define speeding, but I know it when I see it.” Legal accountability just becomes a vague judgment call of political authorities.

Followed consistently, this standard amounts to political elites deciding what is or is not obscene. In short, the government may arbitrarily determine what is “obscene” and what thereby may be legally restricted and what is “not obscene” and may be legally allowed. If this is the case, then it shifts freedom of expression from being a fundamental right to merely being an allowance at the whim of judges.

I gotta say, it’s almost comical reading this.

Any reasonable person would conclude that something like the legal concept of obscenity sounds like a draconian concept from a time since long past, with zero relevance or effect in the modern day, like blasphemy law, sodomy law, and other moralist, prejudice-driven concepts and doctrines.

Anything that can be accurately surmised with “I know it when I see it” shouldn’t have any constitutional relevance.
That makes it arbitrary and not fact-based.

I can only hope that the doctrines core limits are shown and people don’t cave in, because that’s how they win.


This is why they need to claim things like Drag Queens are “sexualizing” children, then falter when they can’t really define it: they find it offensive, but that isn’t a crime in of itself, so they use kids as a shield.