The phrase "I know it when I see it" is a colloquialexpression by which a speaker attempts to categorize an observable fact or event, although the category subjective or lacks clearly defined parameters. It has been a common expression since at least the 19th century. A similar phrase appears in A. Conan Doyle's "The Hound of the Baskervilles," in which Sherlock Holmes comments on the quality of a portrait by stating "I know what is good when I see it." The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v. Ohio.[1][2] In explaining why the material at issue in the case was not obscene under the Roth test, and therefore was protected speech that could not be censored, Stewart wrote:
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."
The Supreme Court of the United States' rulings concerning obscenity in the public square have been unusually inconsistent. Though First Amendmentfree speech protections have always been taken into account, both Constitutional interpretationalists and originalists have limited this right to account for public sensibilities. Before Roth v. United States in 1957, common law rules stemming from the 1868 English case Regina v Hicklin have articulated that anything which "deprave[s] and corrupt[s] those whose minds are open to such immoral influences" was said to be obscene, and therefore banned.[10] The Roth case gave a clearer standard for deciding what constitutes pornography, stating that obscenity is material where the "dominant theme taken as a whole appeals to the prurient interest", and that the "average person, applying contemporary community standards" would disapprove of, reaffirming the 1913 case United States v. Kennerley. This standard allowed for many works to be called obscene, and though the Roth decision acknowledged "all ideas having even the slightest redeeming social importance ... have the full protection of guaranties [sic]", the Justices put public sensibility above the protection of individual rights.
Jacobellis v. Ohio[11] (1964) narrowed the scope of the Roth decision. Justice Potter Stewart, in his concurrence to the majority opinion, created the standard whereby all speech is protected except for "hard-core pornography". As for what, exactly, constitutes hard-core pornography, 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." The film in question was Louis Malle's The Lovers.
This was modified in Memoirs v. Massachusetts (1966), in which obscenity was defined as anything patently offensive, appealing to prurient interest, and of no redeeming social value. Still, however, this left the ultimate decision of what constituted obscenity up to the whim of the courts, and did not provide an easily applicable standard for review by the lower courts. This changed in 1973 with Miller v. California. The Miller case established what came to be known as the Miller test, which clearly articulated that three criteria must be met for a work to be legitimately subject to state regulations. The Court recognized the inherent risk in legislating what constitutes obscenity, and necessarily limited the scope of the criteria. The criteria were:
The average person, applying local community standards, looking at the work in its entirety, must find that it appeals to the prurient interest.
The work must describe or depict, in an obviously offensive way, sexual conduct, or excretory functions.
The work as a whole must lack "serious literary, artistic, political, or scientific values".
The third criterion pertains to judgment made by "reasonable persons" of the United States as a whole, while the first two pertain 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]
Commonsense reasoning – Branch of artificial intelligence aiming to create AI systems with "common sense"
Duck test – Classification based on observable evidence
Family resemblance – group of things connected by a series of overlapping similarities, where no one feature is common to all of the thingsPages displaying wikidata descriptions as a fallback
^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).
^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.
External linksedit
Movie Day at the Supreme Court or "I Know It When I See It": A History of the Definition of Obscenity
November 30, 2023
know, when, phrase, colloquial, expression, which, speaker, attempts, categorize, observable, fact, event, although, category, subjective, lacks, clearly, defined, parameters, been, common, expression, since, least, 19th, century, similar, phrase, appears, con. The phrase I know it when I see it is a colloquial expression by which a speaker attempts to categorize an observable fact or event although the category subjective or lacks clearly defined parameters It has been a common expression since at least the 19th century A similar phrase appears in A Conan Doyle s The Hound of the Baskervilles in which Sherlock Holmes comments on the quality of a portrait by stating I know what is good when I see it The phrase was used in 1964 by United States Supreme Court Justice Potter Stewart to describe his threshold test for obscenity in Jacobellis v Ohio 1 2 In explaining why the material at issue in the case was not obscene under the Roth test and therefore was protected speech that could not be censored Stewart wrote 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 Contents 1 History 2 See also 3 References 4 External linksHistory editThe Supreme Court of the United States rulings concerning obscenity in the public square have been unusually inconsistent Though First Amendment free speech protections have always been taken into account both Constitutional interpretationalists and originalists have limited this right to account for public sensibilities Before Roth v United States in 1957 common law rules stemming from the 1868 English case Regina v Hicklin have articulated that anything which deprave s and corrupt s those whose minds are open to such immoral influences was said to be obscene and therefore banned 10 The Roth case gave a clearer standard for deciding what constitutes pornography stating that obscenity is material where the dominant theme taken as a whole appeals to the prurient interest and that the average person applying contemporary community standards would disapprove of reaffirming the 1913 case United States v Kennerley This standard allowed for many works to be called obscene and though the Roth decision acknowledged all ideas having even the slightest redeeming social importance have the full protection of guaranties sic the Justices put public sensibility above the protection of individual rights Jacobellis v Ohio 11 1964 narrowed the scope of the Roth decision Justice Potter Stewart in his concurrence to the majority opinion created the standard whereby all speech is protected except for hard core pornography As for what exactly constitutes hard core pornography 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 The film in question was Louis Malle s The Lovers This was modified in Memoirs v Massachusetts 1966 in which obscenity was defined as anything patently offensive appealing to prurient interest and of no redeeming social value Still however this left the ultimate decision of what constituted obscenity up to the whim of the courts and did not provide an easily applicable standard for review by the lower courts This changed in 1973 with Miller v California The Miller case established what came to be known as the Miller test which clearly articulated that three criteria must be met for a work to be legitimately subject to state regulations The Court recognized the inherent risk in legislating what constitutes obscenity and necessarily limited the scope of the criteria The criteria were The average person applying local community standards looking at the work in its entirety must find that it appeals to the prurient interest The work must describe or depict in an obviously offensive way sexual conduct or excretory functions The work as a whole must lack serious literary artistic political or scientific values The third criterion pertains to judgment made by reasonable persons of the United States as a whole while the first two pertain 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 edit nbsp Freedom of speech portalAbductive 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 group of things connected by a series of overlapping similarities where no one feature is common to all of the thingsPages displaying wikidata descriptions as a fallback Purposeful omission Leaving out of nonessential details Qualia Instances of subjective experience Tacit knowledge Skills ideas and experiencesReferences edit 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 Gewirtz Paul 1996 On I Know It When I See It Yale Law Journal 105 4 1023 1047 doi 10 2307 797245 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 Richard A Posner 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 External links editMovie Day at the Supreme Court or I Know It When I See It A History of the Definition of Obscenity Retrieved from https en wikipedia org w index php title I know it when I see it amp oldid 1182482842, wikipedia, wiki, book, books, library,
