The Case That Turned Justices Into Art Critics: A Comprehensive Guide

Summary

The article examines how the Supreme Court struggled to define obscenity in First Amendment cases, most notably in *Jacobellis v. Ohio* (1964), where Justice Potter Stewart famously admitted he couldn't define hard-core pornography but would "know it when I see it." The legal framework eventually crystallized in *Miller v. California* (1973), which established the three-part "Miller Test" requiring that material appeal to prurient interest, be patently offensive by community standards, and lack serious literary, artistic, political, or scientific value—a standard that remains law today.

Jacobellis v. Ohio (1964) and the Obscenity Question

Picture nine Supreme Court justices in a darkened basement screening room. They're watching explicit films. They're debating whether the content qualifies as "art" or "obscenity." This wasn't a fever dream. It was standard practice for decades.

The Supreme Court has repeatedly wrestled with defining obscenity. No area has forced justices to become reluctant art critics more than First Amendment cases. These cases transformed legal scholars into film reviewers overnight.

The Famous Quote That Changed Everything

Justice Potter Stewart wrote one of the most quoted lines in Court history. His 1964 opinion in Jacobellis v. Ohio addressed "hard-core pornography":

"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."

Six words captured an impossible task. How do you create a legal standard for something inherently subjective? Stewart's admission revealed the Court's fundamental dilemma. Legal precision met artistic ambiguity head-on.

Key Obscenity Cases That Shaped the Law

Roth v. United States (1957): Setting the Foundation

• Established that obscenity falls outside First Amendment protection
• Created the "average person, contemporary community standards" test
• Forced courts nationwide to consider local community values
• This landmark ruling took seven years of legal battles to reach the Court

Jacobellis v. Ohio (1964): The French Film That Divided the Court

• Centered on the French film Les Amants (The Lovers) by Louis Malle
• A Cleveland Heights theater manager faced criminal charges for screening it
• Justices watched and evaluated the film themselves
• A brief love scene lasting under three minutes sparked the entire controversy
• The Court reversed the conviction in a 6-3 decision
• The justices produced six separate opinions. None commanded a majority.

Miller v. California (1973): The Test That Stuck

After sixteen years of confusion, the Court established the three-part "Miller Test." This standard remains law today:

1. Prurient Interest: Does the material appeal to shameful sexual interest? Community standards apply.
2. Patent Offensiveness: Does it depict sexual conduct in a patently offensive way?
3. The SLAPS Test: Does the work lack serious literary, artistic, political, or scientific value?

All three elements must be present. Only then can material qualify as unprotected obscenity. This test gave lower courts a concrete framework for the first time.

The "Screening Room" Era: When Justices Became Film Critics

A peculiar ritual unfolded in the Supreme Court's basement during the 1960s and 1970s. Justices and clerks gathered regularly to watch explicit films. Popcorn was optional. Awkwardness was mandatory. They needed to determine whether material crossed into obscenity.

Behind the Scenes at the Court's Most Unusual Sessions

• Justice Thurgood Marshall approached screenings with good humor. His running commentary kept clerks entertained throughout.
• Justice Harry Blackmun took critic duties seriously. He kept meticulous handwritten notes on each film's content and artistic merit.
• Justice John Paul Stevens quipped that screenings were "the best show in town." His dark humor acknowledged the absurdity.
• Chief Justice Warren Burger refused to attend. His colleagues made uncomfortable aesthetic judgments without him.

Imagine the scene clearly. Distinguished jurists had argued landmark civil rights cases. Now they debated camera angles in adult films. They discussed plot development in explicit material. The cognitive dissonance struck everyone involved.

Why This Matters: The Impossible Task of Judging Art

These cases expose fundamental tensions. The questions they raised still resonate in courtrooms today.

The Subjectivity Problem

• How can courts define inherently subjective concepts?
• "Art" and "obscenity" mean different things to different people.
• What qualifies one person to declare another's expression worthless?

The Community Standards Puzzle

• Whose community matters in an age of internet distribution?
• Should rural Alabama and urban San Francisco apply identical standards?
• Digital content crosses all geographic boundaries instantly.

The Role of Judges

• Are legal professionals equipped for aesthetic judgments?
• Should personal taste ever influence constitutional interpretation?
• Law school doesn't include film criticism courses.

Other Landmark "Art Critic" Moments

The obscenity cases weren't isolated incidents. The Court has repeatedly evaluated artistic expression in other contexts.

The Lasting Legacy

The Court never fully resolved this core tension. Rigid legal standards clash with fluid artistic judgment. Obscenity law remains one of the most contested constitutional areas.

Every time a court decides whether expression crosses the line, Stewart's confession echoes. Sometimes, you simply know it when you see it. You just can't explain why.

The screening room closed decades ago. The fundamental question persists: Can law ever truly define art?

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