Free Speech Unmuted: I Know It When I See It: Free Speech and Obscenity Laws

Jane Bambauer and I discuss the various rules the Court applies in obscenity cases and the forthcoming Free Speech Coalition v. Paxton decision, which deals with "obscene-as-to-minors" material (not to be confused with child pornography). Fun fact: Associate Justice Potter Stewart, who wrote the "I know it when I see it" line in a 1964 obscenity opinion, later concluded that any such obscenity test would be unconstitutionally vague.

 

Comments

[AmosArch]

In this day of 'if it doesn't directly affect anyone but the people who choose to do it it shouldn't be illegal' there is no place for the concept of obscenity anymore.

[JoeFromtheBronx]

I saw the film in the case that Stewart made that quip. It was rather obviously not obscene.

Stewart in Ginzburg v. U.S. (dissent) noted:

I have referred to such material before as hard-core pornography, without trying further to define it. Jacobellis v. Ohio, 378 U. S. 184, at 197 (concurring opinion). In order to prevent any possible misunderstanding, I have set out in the margin a description, borrowed from the Solicitor General's brief, of the kind of thing to which I have reference.[3] See also Lockhart and 500*500 McClure, Censorship of Obscenity: The Developing Constitutional Standards, 45 Minn. L. Rev. 5, 63-64.

Is this a result of him being upset at people responding to his quip?

[ReaderY]

So what? What’s obvious to you, on this as well as many other matters, is not so obvious to others, and to some it’s obvious the other way.

The essence of the legislative process is to come up with a rule when people disagree. Your eyes are no more priveleged than Justice Stewart’s or anybody else’s.

This is an area where people disagree whether any depiction of sex is obscene, and if so where the boundaries are. Determinimg what rule to apply should be a quintessentially legislative matter, not a judicial one.

I will say it. Whether there is an absolute morality or not, the judiciary is not its arbiter. Justice Stewart is not God, is not a dictator, and has no right to play God and dictate. His playing God by asserting magical powers to ascertain and dictate to the public what is “really” “objectively” obscene, to assert that his personal standards are the only valid or “real” ones, was a complete usurpation of his proper limited constitutional role.

It’s simply no business of the judiciary, none whatsoever, whether things “are” obscene or not. The Constitution gives the judiciary no power to decide such things. Their sole business should be whether or not a determination of onscenity has occurred through duly enacted legislative or common-law standards that provide adequate notice, and fair judicial processes.

[JoeFromtheBronx]

so what

Some things are clearer than others. Why stop here? I can say "The Grinch Stole Christmas" is obviously not obscene. "So what?"

People can watch the film. It is not that hard of a case. The best case to be made is that how it was promoted was pandering and it could have been targeted for that reason. Even then, the film itself is not obscene. It had one risqué montage.
 
The essence of the legislative process is to come up with a rule when people disagree.

The Supreme Court often takes cases "when people" (circuit split) disagree. They themselves often disagree. Is the "essence" of the Supreme Court to come up with a rule when people disagree?

Anyway, this "magical powers" stuff comes off as a tad unhinged.

What does "determination of obscenity has occurred through duly enacted" mean exactly as compared to some other type of speech?

The courts have the job among other things to interpret the Constitution, including the First Amendment, which includes free speech. They do that the usual way; each judge have somewhat different standards.

Stewart didn't act very different -- as the later decision shows, he did not just rely on a quip -- than any other judge.

[ReaderY]

As I see it, the First Amendment has, on originalist grounds, an exception for obscenity. The exception being an originalist one, the constitutional standard should be the original one, which encompasses pretty much any direct depiction of sex outside medical and academic contexts, not just any hardcore but any softcore pornography.

It is then up to legislatures to set standards and courts to decide which depictions of sexual matters are and are not obscene. And it is up to the people and their elected representatives, not the courts, to evolve their legal standards to conform to their societal ones, should they wish to do so.

The whole thing is not the business of the courts. What is the proper business of the courts is a simple up or down on whether the First Amendment has an obscenity exception. If originalism says it does, then so far as the constitution is concerned it’s the original exception, and it’s then for legislatures, not courts, to adjust the original standard to modern times. The only comstitutional issue for courts is whether it’s a direct depiction of sex. Even soft core pornography does that.

[Dilan Esper]

A great example of how originalism is a terrible judicial philosophy.

Saying "we'll just leave it to the states to define obscenity" would lead to the widespread and massive censorship of mainstream cinema and literature. And on the other hand, pornographers would just ladle their product with just enough "medical" and "academic" information under your standard, just like they put in some "redeeming social value" in the past.

That's just a bad way of handling this. What we did, through doctrinal iteration (which is what the framers intended anyway-- they were NOT pure originalists and would think Justice Scalia was an idiot if you brought them back to life), is figure out a standard that is consonant with the actual changing values of society and which protects free expression. Because that's what real judges do.

[David Nieporent]

Saying “we’ll just leave it to the states to define obscenity” would did lead to the widespread and massive censorship of mainstream cinema and literature.

FIFY.

[ReaderY]

And?

What business of the courts is that? If we accept the First Amendment contains an exception for obscenity, we accept that speech which otherwise would be legal can be prohibited.

Libel is common (done by mainstream politicians), threats are common (same), crime-facilitating speech is common. Etc. All the other recognized exceptions to the First Amendment are commonly done these days. But courts leave it up to legislatures to decide whether to relax their laws on these subjects.

[JoeFromtheBronx]

As I see it, the First Amendment has, on originalist grounds, an exception for obscenity.

What is "obscenity"? You offer ...

any direct depiction of sex outside medical and academic contexts

I don't know what "direct depiction of sex" means. Rather vague. Obscenity regularly is understood to be a narrower thing. OTOH, sexual materials were regularly blocked historically that did not "directly depict" sex much at all. The mere discussion of certain sexual matters was deemed verboten.

How about classical nude art?

You reference a "medical and academic " exception. So, sexually explicit religious works -- there are quite a few -- don't count? OTOH, "medical and academic" is open-ended. It need not only be created by a select group of experts.

The courts would have some role in parsing this sort of thing.

originalism says it does

The courts, I suppose, have a role in interpreting what originalism says. For instance, Shakespeare and other classical works have "direct depictions of sex" in various respects.

An originalist judge very well might determine originalism does not warrant Congress banning such works. Not that I think originalism is a good approach in part (since your first comment made it an issue) as a means of judicial restraint compared to other methods.

[ReaderY]

Yeah, sure, it has some ambiguities. But of course, terms like “race,” “sex,” and “consent” are every bit as ambiguous as terms like “medical” or “academic.” If you play the same game with those terms, then we can’t ever prosecute discrimination or for that matter rape, can we, because we also can never be sure exactly what those terms mean. All human language has ambiguities. We can play the same game with anything we care to.

But you only intend to play this particular “it’s not clear to me” game with terms yiu don’t like, right?

[ReaderY]

A simpler way to reach this would be to keep the Miller “contemporary community standards” framework but focus on the separation-of-powers issue. The Constitution assigns the job of determining contemporary community standards to legislatures, not courts. So contemporary community standards are what legislatures say they are.

Congress chose to use a common-law approach to federal obscenity law. So the Supreme Court is entitled to interpret federal statutory law in the manner that Miller did. But that’s a statutory interpretation issue, not a constitutional one. If Congress replaced the common-law approach with its own specific standards, in my view it would be free to do so. As can states.

[SRG2]

“contemporary community standards”

I've mentioned this example recently - a case in Utah IIRC where an adult store owner was prosecuted for obscenity under those standards, and charges were either dropped or he was acquitted when he showed how many of the local community had subscribed to adult cable channels. Overt standards aren't necessarily what the locals actually accept.

[ReaderY]

Under separation of powefs, legislative power is vested in the legislature. Legislative power is exactly the power to determine the community’s standards.

Separation of powers means the judiciary has to accept what the legislature says the law is as the law. If local elect legislators impose standards, the standards their elected legislators impose are the standards the locals accept so far as the judiciary is concerned. And if the locals don’t accept them, they signify that by voting in new legislators with different standards. Separation of powers means the the people’s elected representatives represent the people.

The stature books are riddled with laws a lot of people ignore. So what? Nobody gets to argue that because a majority of people speed, the posted speed limit isn’t the real “community standard” speed limit and can’t be enforced. Nobody gets to argue that because most people don’t pay nanny tax, nanny tax isn’t “community standard.” Nobody gets to argue that because lots of people discriminate, laws against discrimination are unenforcable.

Just a few posts down, Professor Post argued that murder and rape laws go largely unenforced. Nobody gets to bring him to court as an expert on community standards and then argue that because the majority of murders and rapes go unpunished, punishment for rape and murder isn’t community standard and is therefore unconstitutional.

Why in the world should this be any different? What right does the Judiciary have, under separation of powers, to say that the standards imposed by the community’s elected representatives aren’t the community’s representative standards?

[David Nieporent]

The Constitution assigns the job of determining contemporary community standards to legislatures, not courts.

Is that in Article 12? Because elsewhere, it does no such thing.

And surely what contemporary community standards are is a question of fact.

[ReaderY]

“All legislative power shall be vested in…”

Legislation sets standards. Thats what it does. The legislature decides what the standards of the community are. They are what the legislature says they are. Standards are a legislative matter, not a matter of law, not a “factual” one.

On all other subjects, you don’t get to expert to court to say that, for example, because the community mostly drives above the posted speed limit, the posted speed limit doesn’t represent the community’s standards for what speed to go at and hence isn’t binding on the judiciary or on citizens.

The community’s standards for what speed to go at are what its legislature says they are. If a legislature passes a speed limit law, that’s the community’s standard for how fast to go so far as the judiciary is concerned. Whether some or most people do or don’t follow that standard is totally irrelevant. The judiciary doesn’t get to ignore the legislature and conduct its own independent fact-finding on what the “community standard” for how fast to go is.

There’s no basis for treating this any differently. If obscenity can constitutionally be prohinited, then legislatures get to determine how racy thimgs can be, just as, if the legislature can prohinit speeding at all, it gets to say what those limits are.

States used to have nonspecific, “reasonable” speed laws, where a court might indeed look to polls and experts to determine if someone went to fast or not. But they replaced them decades ago with more specific, detailed standards. They can do the same thing with obscenity if they want.

Indeed, on matters where people strongly disagree, clear specific standards should be welcomed by courts as enablimg people to better understand what is and isn’t legal, not struck down as unconstitutional.

[David Nieporent]

The legislature decides what the standards of the community are. They are what the legislature says they are. Standards are a legislative matter, not a matter of law, not a “factual” one.

I mean, that's just an entirely incorrect application of the English language. The legislature can set "standards" in the sense of "All railroad track gauge shall be 60 inches" or "Buildings must be able to withstand a 6.0 magnitude earthquake," but that's not the same usage of the word "standards" as the one we're discussing here.

Setting aside for a moment the strictures of the 1A, the legislature can define any depiction of sex to be unlawful, but it cannot define any depiction of sex to violate community standards. Community standards are a question of fact: what does the community actually accept? That's what the phrase means.

Or, to work with your example: the government can set speed limits, yes — but it cannot make a particular speed reasonable or unreasonable; physics does that.

[TwelveInchPianist]

"I saw the film in the case that Stewart made that quip. It was rather obviously not obscene."

Wasn't that the point?

I know it when I see it, and this ain't it.

[JoeFromtheBronx]

The line is tossed out there as a flippant statement that there is no objective possible test for obscenity.

It's relevant to note that the case was pretty obvious. That is going to be the case when applying many legal tests. Some applications will have much less debate.

Anyway, he didn't just say that. He also cited some basic guidelines.

[Dilan Esper]

Ginzburg is a fun case because it is a Brennan majority opinion rejecting a First Amendment defense while both extremes of the Court (Black and Douglas, on the left, and Harlan, on the right) dissent. And of course Stewart as well.

[JoeFromtheBronx]

One case involved fetish works. Brennan had an appendix providing a long list of the works involved. Sort of a reading list.

#61: Peggy’s Distress On Planet Venus

Mishkin v. NY.

[ReaderY]

There are a number of areas where the Court has operated under an illusion that it can roll the Constitution up, smoke it, and by the prestidigitatious powers present in the resulting fumes conjure into being a social consensus on a subject for which there is simply no social consensus.

Slavery was one. Abortion was another. I think obscenity was a third.

The court should not be in the business either of setting its own standards or of determining who should set them. I think it should limit itself to determining whether obscenity is constitutional or not. Professor Volokh would obviously prefer to do away with the the whole think. But I think any even moderate concept of originalism would have to grapple with the fact that the framers of the First Amendment would never have extended their amendment that far.

If we take it as a given that obscenity is constitutional, then I think the Court has to leave it up to the political branches to determine what the boundaries should be. And in this area, as in any other, the judical branch has to accept that our Constitution assigns the job of determining what a community’s standards are on any particular subject to the legislative branch. In its Miller decision holding that courts guided by experts have power to overrule legislative determinations, the Court usurped quintessentially legislative powers.

In my view, if a legislative standard of obscenity addresses the general subject of overly overt depiction of sexual matters outside of a strictly academic or medical context, then it should be constitutional. Perid. And it should be totally up to legislatures to decide whether to modify their standards to reflect what Professor Volokh might say is current mores. If legislatures want to delegate matters to courts or instruct courts to craft common law, fine. But if they don’t and want to create their own general standards or detailed rules for what is and isn’t permissable, that’s fine too.

In the 1970s, the courts imagined that they could be locus of community concensus, as with abortion, and that whatever compromise they could come up with among the 9 of them would suit the public just fine. Nonsense.

The court should do to Miller what it did to Roe. It should completely remove itself from the business of determining the boundary between obscene and non-obscene depictions of sexual conduct. It should let legislatures (and courts if but only if a jurisdiction chooses to use a comkon law approach) work those matters out as best they can. Boundaties on tjis as in other matters are a legislative matter, plain and simple. If voters don’t like the result, they can vote in legislators they find more suitable, on this as on any other matter.

I think finding obscenity completely unconstitutional is totally unoriginalist. But at least it’s based on a comprehensible constitutional theory. Having courts decide the boundaries for themselves with sociologists conducting studies and all the baggage that has come with Miller, however,is nothing more than a judicial power grab, a usurpation of legislative power, based on nothing more than the Court rolling up the constitution and smoking it.

[ReaderY]

Ancient skepticism assumes extreme judicial humility, that we really don’t know anything for sure, and when we fervantly believe we know something, our fervor may be illusionary. Perhaps an irony of ancient skepticism is that after doubting everything, the skeptics tended to end up behaving conservatively. If we don’t really know, why not go with what the majority thinks or what’s conventionally been done?

Ancient skepticism is perhaps a natural fit for democracy. There’s no guarantee whatsoever the majority opinion will be correct. But if it’s wrong, at least the public can be accountable for their own mistakes.

Obscenity is perhaps an example. People fervently believe they know for sure what is and isn’t. justice Potter Stuart was hardly alone in believing he did. But do we really know for sure?

In addition, it’s a good illustration of how skepticism tends to lead to conservativim. Since we don’t trust anybody’s certainty, we don’t think anybody knows for sure, we leave matters up to legislative judgment. This means that if a legislature wants to be conservative and enact 19th Century standards, it can.

Federalism means that some states will go one way and some another. If one way of thinking is really mistaken or another way really better, people will see the results and learn what works and what doesn’t. Of course, for that approach to work, the central government has to be limited in its powers and somewhat intellectually humble and restrained in its scope so that different standards actually get applied in different localities. If there is only one standard applied everywhere, there is no way to find out if a different standard works better.

Which is of course a reason why the JUDICIARY shoild be reluctant to apply a single standard everywhere. Uniformity prevents learning. Without variation, intellectual and social evolution is impossible.

[Krayt]

Fun fact: Associate Justice Potter Stewart, who wrote the "I know it when I see it" line in a 1964 obscenity opinion, later concluded that any such obscenity test would be unconstitutionally vague.

Which is, of course, the entire point of the line. It's like trying to define beauty is in the eye of the beholder, or love in a context of love is blind.

[ReaderY]