I know it when I see it
The
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
This was modified in
- whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
- whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and
- whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The third criterion pertains to judgment made by "reasonable persons" of the United States as a whole, while the first pertains 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
- Abductive reasoning – Inference seeking the simplest and most likely explanation
- Case-based reasoning – Process of solving new problems based on the solutions of similar past problems
- Casuistry – Reasoning by extrapolation
- Commonsense reasoning – Branch of artificial intelligence aiming to create AI systems with "common sense"
- Duck test – Classification based on observable evidence
- Family resemblance – Philosophical idea popularized by Ludwig Wittgenstein
- Purposeful omission – Leaving out of nonessential details
- Qualia – Instances of subjective experience
- Tacit knowledge – Skills, ideas and experiences
References
- ^ 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.
- ^ 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.
- ^ 378 U.S. at 197 (Stewart, J., concurring) (emphasis added).
- JSTOR 797245.
- ^ 378 U.S. at 197 (Stewart, J., concurring) (emphasis added).
- ^ Harry Kalven, Jr., A Worthy Tradition: Freedom of Speech in America, p. 40 (1988)
- Law and Literature: A Misunderstood Relation p. 308 (1988)
- ^ 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.
- ^ 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.
- ^ Roth v. United States. The Oyez Project at IIT Chicago-Kent College of Law. February 8, 2012.
- ^ Jacobellis v. Ohio. The Oyez Project at IIT Chicago-Kent College of Law. February 8, 2012.
- ^ Kamen, Al (December 8, 1985). "Retired High Court Justice Potter Stewart Dies at 70". The Washington Post. Retrieved January 2, 2015.