Potter Stewart and "I Know It When I See It":

A comment on the Miers/Stewart/Hewitt thread -- "Potter Stewart is most famous for recognizing obscenity when he sees it" -- reminded me of one of my favorite facts. It's true that this quote is indeed what Stewart is famous for, but people generally miss the follow-up to the quote: Nine years later Justice Stewart joined the dissent in Miller v. California, and would have thus held that pornography is categorically constitutionally protected (at least where no unwilling viewers or underage viewers are involved). And the dissent's reasoning focused largely on the vagueness of the existing tests for what's constitutionally protected and what's not.

So Stewart thought he knew it when he saw it. But after seeing enough cases, it seems that he either lost confidence in his own ability to know what should be protected, or concluded that such a test was in any event no way to run a legal system.

Stewart's willingness to change his mind, and his ultimate preference for a clear rule of protecting speech -- including sexually themed speech of the sort that he probably found personally quite distasteful -- strikes me as much more important than his original endorsement of a more vague, case-by-case approach.

Justin (mail):
Hah, my law review article on corruption starts with that quote :)
10.14.2005 6:07pm
Rob42 (mail):
I am curious about the qualification of no unwilling viewers or underage viewers. Does this apply to other forms of speach? Is political speech protected except when there are unwilling listeners? What about racist speech when impressionable children may hear?
10.14.2005 6:22pm
Moreover, Stewart dissented in Griswold v. Connecticut but voted with the majority in Eisenstadt and Roe.
10.14.2005 6:29pm
AnonymousLawStudent (mail):
Unfortunately can't find a cite but I recall one of my professors saying that years later, Stewart cited that quote as one of his biggest regrets.
10.14.2005 7:11pm
Paul McKaskle (mail):
It may be myth, but I recall reading that Larry Tribe, when clerking for Potter Stewart, asked him whether he had actually seen obscenity, and the reply was something like: "Yes, once in Casablanca when I was in the Navy during the War." But, Stewart apparently didn't describe what it was that met his test of obscenity.
10.14.2005 9:16pm
Again,, I don't think Stewart's quote is being accurately reflected here. Stewart in Jacobellis was clearly dubious that an obscenity test was even possible; his point in the famous quote was only that, whatever the correct test was, the material at issue did not rise to the level of obscenity. To me, that presages, rather than contradicts, his dissent in Miller.
10.14.2005 11:47pm
I agree with Bruce on this, this quote by Stewart is generally being taken out of context. Yes, his quote was not helpful by anymeans and didn't provide any true inisight into obscenity. Stewart might know it when he sees it but what if another Justice saw it and didn't know that s(he) saw it? This is old news...
10.15.2005 3:14am
noahp (mail) (www):
Bruce is apparently reconstructing Stewart's quote to read, "Regardless of whether I know it when I see it, I am sure the motion picture involved in this case is not that." Recall that in the sentence that precedes the famous quote, Stewart says, "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"— not that he could never succeed at all. For Stewart in 1964 is confident that hard-core pornography, which he knows when he sees, is not protected by the First and Fourteenth Amendment.
10.15.2005 8:52pm