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II)B)3 Jacobellis vs Ohio: “I know it when I see it.”

The 1964 Supreme Court case Jacobellis vs. Ohio centered on the obscenity conviction of Ohio theater owner Nico Jacobellis for screening the 1958 French film The Lovers (Les Amants). Again at the risk of sounding condescending, I’m not sure a modern audience can fully appreciate that there was a time in this country when a person could be put on trial for showing a film like The Lovers (or for publishing a book like Ulysses for that matter.)

But as unbelievable as it sounds, it’s true. In 1964 in a lot of places in the US marriage between blacks and white was illegal; in 1964 in a lot of places in the US it was illegal even for husbands and wives to engage in oral sex; and in 1964 screening a film like The Lovers could land you in jail. 

Jacobellis appealed to the Supreme Court of Ohio and lost.

Ultimately Jacobellis ended up the Supreme Court of the United States. Here are the final two paragraphs of the court’s decision, written by Justice William J. Brennan:

We recognize the legitimate and indeed exigent interest of States and localities throughout the Nation in preventing the dissemination of material deemed harmful to children. But that interest does not justify a total suppression of such material, the effect of which would be to “reduce the adult population . . . to reading only what is fit for children.” Butler v. Michigan, 352 U.S. 380, 383. State and local authorities might well consider whether their objectives in this area would be better served by laws aimed specifically at preventing distribution of objectionable material to children, rather than at totally prohibiting its dissemination. Since the present conviction is based upon exhibition of the film to the public at large and not upon its exhibition to children, the judgment must be reviewed under the strict standard applicable in determining the scope of the expression that is protected by the Constitution.

We have applied that standard to the motion picture in question. “The Lovers” involves a woman bored with her life and marriage who abandons her husband and family for a young archaeologist with whom she has [378 U.S. 184, 196] suddenly fallen in love. There is an explicit love scene in the last reel of the film, and the State’s objections are based almost entirely upon that scene. The film was favorably reviewed in a number of national publications, although disparaged in others, and was rated by at least two critics of national stature among the best films of the year in which it was produced. It was shown in approximately 100 of the larger cities in the United States, including Columbus and Toledo, Ohio. We have viewed the film, in the light of the record made in the trial court, and we conclude that it is not obscene within the standards enunciated in Roth v. United States and Alberts v. California, which we reaffirm here.

Reversed.

Jacobellis’ acquittal, and the film The Lovers, and Brennan’s decision are mostly forgotten. So it seems is the context and meaning of Justice Potter Stewart’s concurrence with Brennan’s ruling: 

It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, 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,1 that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to hard-core pornography.2 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 mine.)

“I know it when I see it” is perhaps the most famous Supreme Court quote of all time; and it is certainly the most miscontextualized. The phrase is ripped from a passage where Justice Stewart expresses his doubts that a legal standard for obscenity might ever be found, he is saying that whatever definition of obscenity one might use and however poor that definition might be, the film The Lovers does not fall within any conceivable definition of obscenity.

For me the great irony of the colloquial use of “I know it when I see it” is that it rests on the idea that obscenity/pornography can be readily identified by strictly (as Walter Murch might put it) “in the frame information.” Yet the various legal and quasi-legal definitions rest entirely on “out of the frame information,” i.e. the ability to divine the intent of the artist, and/or the effect on the viewer. From a practical stand point, what it means for an artist who explores sexuality is that one’s work will be found to be obscene/pornographic at the convenience of the person laying the charge, and that whether or not the charge sticks is pure realpolitik.

It means that the same night that Destricted plays at the government funded Australian Center for the Moving Image (complete with a panel discussion on the difference between art and pornography), the same government will dispatch  armed police to prevent the world premiere of Ashley and Kisha: Finding the Right Fit at the (privately funded) Melbourne Underground Film Festival. 

It means that when a District Attorney in Utah decides that “penetration is illegal” the only thing he has to do to make his interpretation of obscenity stick is to drop off his business card in a lingerie shop owner’s mailbox every few weeks (I met this women at an apparel trade show in 2007 where she decided she couldn’t risk offering our films to the women who frequent her shop.)

It means that when I met a Harvard-educated professor teaching at a university in Oklahoma at the 50th annual meeting of of the Society for the Scientific Study of Sexuality  and he picked up on of my DVDs and asked me if my films showed penetration, and I answered “Of course,” he set the DVD back down and told me “Oh, then I can’t use them. Penetration is illegal in Oklahoma.”

It means that after 15 years of making my films first and foremost for the entertainment of my audience, I feel compelled to pause, and turn my attention towards making explanations for the benefit of critics, theorists, and lawyers.

In any event, Justice Stewart’s words were to prove prophetic. For the next several years, the Supreme Court of the United States would be unable to circumscribe a legally workable definition of obscenity, and so pressing was this question of obscenity in cinema, that the highest court in the the most powerful county in the world was reduced to functioning as a film review board, screening potentially obscene movies on a weekly basis and passing individual judgements on each one. 

This would continue until 1973 when, presumably growing weary of their role as movie critics, via a 5/4 decision the Supreme Court would find its way to a definition of obscenity that has stood for more than 30 years. Justice Stewart would sign on to the dissent in this case. Somewhere between 1964 and 1973 Stewart reached the conclusion that the idea of obscenity as an unprotected class of speech was an untenable position. 

Next up: Miller vs. California: The “Miller Test” and how the magic camera transforms legal actions into criminal thoughts.

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