I know it when I see it?

“I know it when I see it” is perhaps the best known and least understood phrase to come out of the US Supreme Court; and in the last several days I’ve seen no less than three “experts” misconstrue Justice Potter Stewart’s famous words. Here’s his entire concurence in Jacobelis v Ohio, including the famous phrase in context:

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.

Much more on Jacobelis v Ohio at TheIntentToArouse.com, but briefly: 1) Stewart says that obscenity may well be indefinible; 2) Stewart doubts he could provide an intelligible definition for “hard-core” pornography; 3) Definiable or not, the film in question (Les Amants) is clearly not pornography.

This couldn’t be any further away from Stewart asserting that he can readily identify pornography in an affirmative and legally binding way. Yet that is how his quote is understood today; by the public at large; and by experts who should know better.