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Episode Notes

How do you know when something’s obscene? It’s not exactly an easy question. Plenty of now respected works were, at one point, declared obscene and subject to judicial scrutiny – James Joyce’s Ulysses, Allen Ginsberg’s Howl, and George Carlin “7 Words You Can’t Say on TV” to name just a few. But how exactly does a court answer the question? And how can the layperson know, with any degree of certainty, whether something is obscene or not?

In this episode of Make No Law: The First Amendment Podcast from Popehat.com, host Ken White explores the United States Supreme Court’s approach to obscenity law through the lens of the landmark case of Jacobellis v. Ohio, in which we find one of the most well known lines in Supreme Court jurisprudence – “I know it when I see it.” With the help of guests Professors Philippe C. Met and Geoffrey R. Stone, Ken explores the rules set forth by the Supreme Court, their notorious ambiguity, and how they apply in the modern day.

Professor Philippe C. Met is a professor of French and Francophone Studies at the University of Pennsylvania. He also serves as Editor-in-Chief of French Forum.

Professor Geoffrey R. Stone is a noted First Amendment scholar, the Edward H. Levi Distinguished Service Professor at the University of Chicago, and formerly served as law clerk to Supreme Court Justice William J. Brennan, Jr.

Transcript

Make No Law: The First Amendment Podcast

I Know It When I See It

06/03/2020

Ken White: Americans go to court seeking the resolution of a dispute.

[Music]

The government is prosecuting you and you’re found either guilty or not guilty. Your neighbor has wronged you and they’re held to account or not. You think your rights have been violated and you ask a court to agree and make the violations stop.

But what happens when instead of offering clarity or resolving the problem, the court just makes it worse? What happens when a court maybe even the United States Supreme Court faces a tough legal question, and instead of answering it, makes us all even more confused than we were to begin with?

That’s what happened to a man named Nico Jacobellis, a movie theater manager in Cleveland Heights, Ohio.

In 1964, Jacobellis went all the way to the United States Supreme Court seeking answers to these questions. Was the French movie he showed at his theater obscene and outside the protections of the First Amendment, and how could he tell next time whether a movie is obscene or not? He wanted a clear answer, a rule, but what he got instead was this infamous line.

Justice Potter Stewart: Under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hardcore 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.

Ken White: Thanks Justice Potter Stewart, that’s really helpful.

[Music]

Ken White: I’m Ken White and this is Make No Law: The First Amendment Podcast from popehat.com, brought to you on the Legal Talk Network.

This is Episode 12, I Know It When I See It.

[Music]

In November 1959, Nico Jacobellis managed the Heights Art Theatre. It wasn’t the kind of theatre you’d go to if you wanted to see the blockbuster movie of the day, which that year would have been ‘Ben-Hur’. It was where you went if you wanted to see something more likely to be called a film than a movie, maybe subtitled, certainly something serious.

The owner of the Heights Art Theatre wanted to show the French film the ‘Les Amants’, or ‘The Lovers’, by famed director Louis Malle.

Les Amants’ is about a woman in a loveless marriage who finds meaning and purpose in an affair with a younger man. There’s nothing in the movie you wouldn’t see on primetime TV today, but at the time it was quite controversial in America and theatres in different states showed different versions with various scenes edited out.

I talked to University of Pennsylvania’s Prof. Philippe Met, an expert on Louis Malle about significance of ‘Les Amants’. He explained that it might not have been so much the explicitness of the movie that made it controversial, but Louis Malle’s approach that presented adultery neutrally or even positively.

Prof. Philippe C. Met: This material in and of itself was pretty banal and pretty common interest in terms of French history, French culture, French arts, basically the eternal triangle, the married women having an affair and so on and so forth, all of that is of course pretty common certainly in France at the time including on film.

What I think is very different and what perhaps played a major part in the controversy that this film stirred as its own, is not only the treatment of this subject matter in terms of the visual representation, let’s say of sex or sexuality or at least eroticism on celluloid but also the moral stance, if you will, vis-à-vis that particular storyline and subject matter.

(00:05:12)

This is something that is typical of Louis Malle’s career throughout. The non-judgmental approach to the subject matter regardless of what the subject matter might be, and of course there is also a long line running and thread running throughout Louis Malle’s career in filmography in terms of approaching, treating controversial subject matter.

Ken White: The realism and focus of the sex scene also set ‘Les Amants’ apart from the movies of the time.

Prof. Philippe C. Met: Very often the sex scene at the time very quickly the camera would pan away to the window, it’s almost like sort of a like — like a trope or stereotype as you will, for that type of scene and then we would cut to the morning after, basically, right?

Of course, this is 1950s, so compared to today’s standards this is very difficult to understand why this creates such a scandal because it comes across as fairly pain compared to what we see on celluloid nowadays, but again it’s the idea that the camera instead of panning away to the window, right away it’s going to stay on Jeanne Moreau’s face.

Ken White: So, what about this movie got Nico Jacobellis in trouble? Well, a most controversial scene of ‘Les Amants’ is about 30 seconds long. It shows the protagonist, her face, her shoulders and then her arm in bed as she moves her arm down the bed slowly in apparent ecstasy. There’s no nudity and you can’t see her partner, but the implication is very clear that she’s engaged in passionate sex and perhaps that she’s receiving oral sex.

[Music]

Nico Jacobellis didn’t pick ‘Les Amants’ himself. History doesn’t record whether he was a fan of foreign language films, but the record shows that his job was to run the theatre. It’s clear that he didn’t think he was doing anything wrong.

When the local Sheriff heard about the movie and asked about it, Jacobellis invited him to come watch. For his trouble he was charged with two counts of possessing and exhibiting an obscene, lewd or lascivious movie in violation of Ohio Law. He waived Jury Trial and asked for a Bench Trial before three judges, which the Obscenity Statute allowed.

The judges convicted him. He was fined $2,500, about $22,000 in today’s money, and under Ohio Law at the time he normally would have had to stay in the workhouse of the City of Cleveland until the fine was paid. But the Judge pending appeal stayed that sentence. He appealed to the Ohio Court of Appeals and then to the Supreme Court of Ohio arguing that the First Amendment protected ‘Les Amants’.

Here’s what the three judges who convicted Jacobellis wrote.

Male Speaker: It is the unanimous finding of the court that the motion picture film in issue is obscene, lewd and lascivious within the definition, description and tests set forth in Roth v. United States. ‘Les Amants’ or ‘The Lovers’ has relation to sexual impurity and has a tendency to excite lustful thoughts. Again, it has a substantial tendency to deprave or corrupt its viewing audience by inciting lascivious thoughts and arousing lustful desires. Finally, the dominant theme of this film when taken as a whole to the average person applying contemporary community standards appeals to prurient interest.

Ken White: Now the judges didn’t make up that language. They took it from a 1957 case called Roth v. United States, which was one of the Supreme Court’s first attempts to articulate a definition, a standard for obscenity. But the definition still left a lot of questions like whose contemporary community standards are we considering in determining whether something is obscene, is it the nation as a whole, Cleveland, Ohio; people who go to subtitled French movies? Does it matter whether the work has artistic value? Moreover, the definition raised this question, how can someone possibly know in advance, whether or not a particular work will be treated as obscene?

Those were the questions the Supreme Court attempted to address, but before it could get there the Court had to confront the film, the thing that was allegedly obscene.

(00:09:57)

The justices as would become their habit in this line of cases, all watched it. Apparently the justices would often watch the movies together, which is both creepy and hilarious.

Years later after a screening of the movie ‘Sexual Freedom in Denmark’, Justice Thurgood Marshall turned to Justice Harry Blackmun and said, “Well, Harry, I didn’t learn anything. How about you?”

In arguing the Jacobellis case before the Supreme Court, the lawyers for the parties took very different approaches to describing the pivotal scene. Jacobellis’ counsel perhaps attempting to deemphasize the erotic nature of the scene was pretty dry. Here’s Ephraim London struggling miserably to describe the scene to the Supreme Court.

Justice Potter Stewart: What is on screen, an apartment house?

Ephraim London: What is on screen is a woman, Your Honor, and you see her face and bare shoulders. She is lying in bed, and prior to that time, there has been a scene of love making between the woman and the man. You don’t see any act of love but it’s quite obvious that they are making love to each other or at least that they are in the bed for that purpose.

Ken White: That is not the voice of a man who is happy to find himself describing a sex act to the United States Supreme Court. By contrast John T. Corrigan, who represented the State of Ohio, was a lot more explicit perhaps because he wanted to shock the justices into seeing this as obscene.

John T. Corrigan: The scene then moves to the bedroom wherein the upper portion of her body is exposed as is his and the scene depicts him laying on top of this young lady, engaged in 00:11:51 embrace, and after a period of his lovemaking, he then disappears and she is seen on the screen, and as the expert witness is testified, experiencing an orgasm and leaving no other entrance, but that the young man is then engaged and conolingus. After this is completed, the young couple continued to spend the balance of the night sleeping together in the bed.

Ken White: I have decided there’s nothing less sexy than a lawyer describing a love scene in a Mid-Atlantic accent. The State of Ohio’s position here was very aggressive. One of the issues was whether a work was obscene if it still had some social or artistic value. Ohio didn’t want the court to get hung up on that question. So Ohio’s lawyer took the very bold stance that the movie would fall apart and be meaningless without the sex scene.

John T. Corrigan: It would be perfectly all right if you were to take out that scene, you would have nothing that would be appealing to anyone. For the meaningless picture, it would have no purpose and it would have no commercial purpose thereafter. It would be nothing to appeal to the viewing public. It would be a movie if you please that would lead you to a certain point and I’ll just leave you hanging high and dry.

Ken White: This was probably a poor tactical choice, especially given that the movie was so celebrated and because it was shown successfully in several locations without the pivotal scene. The Supreme Court ordered re-argument of the case. It’s clear they had real trouble resolving the issues, and on June 22, 1964, they released a ruling that proved it.

The Supreme Court reversed Nico Jacobellis’ conviction 7-2, but they could not agree on how to get there. The case is a mishmash of four opinions and two dissents without a majority agreeing on the theory under which ‘Les Amants’ was protected by the First Amendment. The justices all agreed the issue was governed by their prior case, Roth v. United States.

Under Roth, the question was, and I’m quoting here “whether, to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” But they couldn’t agree what that meant and what community should be consulted or how will Court should evaluate the artistic or literary merit of a work as part of that analysis.

The first opinion was by Justice Brennan. He took the stance that if a work of art has any merit, it can’t be obscene.

Justice Brennan: We would reiterate, however, our recognition in Roth that obscenity is excluded from the constitutional protection only because it is utterly without redeeming social importance, and that the portrayal of sex, for example in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press.

(00:15:08)

It follows that material dealing with sex in a manner that advocates ideas, or that has literary or scientific or artistic value or any other form of social importance, may not be branded as obscenity and denied the constitutional protection.

Ken White: Justice Brennan also asserted that the community values to be applied can’t be local because that would put everyone at the whim of local prejudices.

Justice Brennan: It is true that local communities throughout the land are in fact diverse, and that in cases such as this one the Court is confronted with the task of reconciling the rights of such communities with the rights of individuals. Communities vary, however, in many respects other than their toleration of alleged obscenity, and such variances have never been considered to require or justify a varying standard for application of the Federal Constitution.

Ken White: Justice Goldberg agreed with Justice Brennan, but also wanted you to know that he watched the movie and he didn’t see what the big deal was.

Justice Goldberg: I have viewed the film and I wish merely to add to my brother Brennan’s description that the love scene deemed objectionable is so fragmentary and fleeting that only a censor’s alert would make an audience conscious that something questionable is being portrayed.

Ken White: By contrast Justices Black and Douglas took a First Amendment absolutist position that the government can’t punish obscenity at all. Finally, and perhaps most memorably, Justice Potter Stewart offered his deathless line, may be the best known quote about obscenity law.

Justice Potter Stewart: But I know it when I see it, and the motion picture involved in this case is not that.

Ken White: Potter Stewart’s quote may be so memorable because it says out loud something many people suspect about the law that for all the complex rationales and multi-part tests and appeals to authority, judges are just making it up as they go along and that the intellectual rigor is just a facade.

[Music]

Ken White: Jacobellis left Americans with no coherent definition of what sort of obscenity is outside First Amendment protections. That’s ironic because a key element of Jacobellis’ argument was that he should not be held liable for violating a standard that no one can define. It wasn’t until 1973, in the case Miller v. California that a majority of the Supreme Court finally articulated as somewhat workable standard.

The Miller Test, which more or less, is the current standard for identifying obscenity outside the protection of the First Amendment. The Miller Test has three parts; first, whether the average person, applying contemporary community standards, would find that the work taken as a whole, appeals to the prurient interest.

Second, whether the work depicts or describes in a patently offensive way, sexual or excretory function; and third, whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.

Les Amants’ would pass the Miller Test because if it’s widely recognized literary and artistic value.

I talked to Prof. Geoffrey Stone, Professor of Law at the University of Chicago and the author of ‘Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century’. I wanted to know why was it so hard for the Jacobellis court to agree on a definition of obscenity?

Prof. Geoffrey R. Stone: Well, there was historically no such concept of obscenity. It did not exist at the time the First Amendment was adopted, for example, and it came into being in the early years of the 19th Century initially during the Second Great Awakening and then after the Civil War it was pushed much more dramatically by people like Anthony Comstock who led every state in the nation, in the federal government eventually to adopt a law that essentially provided that any work that tended to corrupt the minds of the most susceptible members of society was obscene. And that was taken to mean essentially that any reference to sex in any way, shape or form was prohibited. And there were marginal issues at the extreme, but it covered basically everything.

As time went on we moved into the 20th Century, courts began interpreting that statutory provision in a somewhat narrower way and trying to confine the meaning of obscenity.

(00:19:57)

And the problem, as the Supreme Court discovered it, in 1957 in the Roth case when it began applying the First Amendment to the issue is that once you move beyond the absolute anything related to sex is obscene, is that defining with any clarity what degree of reference to sexuality or depiction of sexuality is obscene is going to be inevitably somewhat vague.

Ken White: Now I have always viewed the Miller Test as protecting more speech by making the definition of obscenity narrower because of its more detailed requirements of patently offensive depictions of sex. Prof. Stone explained that I am just wrong. Miller protects less speech because it focuses the contemporary community standards on the local community rather than the national community, thus allowing more conservative jurisdictions to punish more speech.

Prof. Philippe C. Met: Prior to Miller the Court talked about a national standard and that meant that communities that were particularly conservative could not prohibit speech that they regarded as inappropriate unless a national standard was satisfied.

In Miller the Court went beyond that and said that local community standards were determinative and that meant that those communities that were particularly conservative could ban speech that would not be banned for example in New York or in Los Angeles and that gave communities much broader authority to ban sexually explicit speech.

Ken White: So, if that’s true, why don’t we still have obscenity prosecutions brought in conservative jurisdictions? Well, Prof. Stone explains that even if the Supreme Court wouldn’t adopt a set of national community standards, technology could effectively create one.

Prof. Geoffrey R. Stone: By the time of the George W. Bush administration the law of obscenity at least with respect to consenting adults had largely disappeared, even though legal doctrine allowed prosecutions because what had happened is with the advent of cable and social media individuals became increasingly exposed to all sorts of sexual material and the concept of community standards changed dramatically.

So by the time you get to the 21st Century government efforts to restrict something called Obscenity with respect to consenting adults largely disappeared. And in today’s world, for example, you see no federal prosecutions of obscenity with respect to consenting adults.

The George W. Bush administration was still clinging in a few cases where it was extreme obscenity in communities that were deeply offended by it, but at that point it was really a lost possibility.

Ken White: Finally, just as the law changes over time so too do Supreme Court Justices. Obscenity law is a good example. Remember, that in Jacobellis Justice Brennan struggled to come up with a workable standard to define obscenity, but by Miller he had abandoned that effort and concluded that the First Amendment did not permit punishment of obscenity consumed by consenting adults.

Prof. Geoffrey R. Stone: Brennan I think had come around to the view that it was as a practical matter impossible to define obscenity in a way that could consistently and objectively be applied, and as a consequence it was arbitrary and ambiguity is inconsistent with the First Amendment.

One of the things the Supreme Court had long recognized is that if laws governing speech are not clear then that will have a serious chilling effect on the willingness of individuals to engage in constitutionally protected speech. And the clarity of rules governing speech is an essential component of First Amendment principles, and what Brennan finally came to is the view that the concept of obscenity is so inherently ambiguous that it simply cannot be defined in a way that is clear enough to give notice to booksellers or movie exhibitors or individuals, so they can actually know whether or not any particular work is or is not obscene, and at least therefore with consenting adults the State should not be intervening.

Ken White: In this series of podcasts I will be telling more stories behind important First Amendment decisions. If there’s a case you want to hear about or a First Amendment question you would like answered on the podcast, drop me a line at [email protected]

Thanks for listening. You can find documents and cases mentioned on this podcast at popehat.com or legaltalknetwork.com.

If you liked what you heard today, please remember to rate us in Apple Podcasts, or follow us on Twitter or Facebook.

Lastly, I would like to thank our participants, producers and audio engineers for their participation. My guests Prof. Philippe Met and Prof. Geoffrey Stone.

(00:24:58)

Voice actors: Prof. Richard Freer of Emory University School of Law as Justice Potter Stewart; Jose Trujillo as the Ohio State Court of Appeals; Ralph Baxter as Justice William J. Brennan; Dennis Kennedy as Justice Arthur Goldberg. Producer: Kate Nutting; Network Manager: Evan Dicharry; Executive Producer: Laurence Colletti, and last but not least, music, sound design, editing and mixing by Adam Lockwood.

Excerpts from the oral argument in Jacobellis v. Ohio provided by Oyez, a free law project by Justia and the Legal Information Institute of Cornell Law School.

See you next time.

[Music]

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Episode Details
Published: June 3, 2020
Podcast: Make No Law: The First Amendment Podcast
Category: Legal Entertainment , Legal News
Podcast
Make No Law: The First Amendment Podcast
Make No Law: The First Amendment Podcast

The Make No Law podcast explores the background of important First Amendment cases and the personalities and history that led to them.

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