What Does Pornography and the Truth Have In Common?


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In Jacobellis v. Ohio, 378 U.S. 184 (1964), the U.S. Supreme Court reversed the decision by the Ohio State Supreme Court to uphold the conviction of a manager of a motion picture theater who was convicted under a state obscenity law of possessing and exhibiting an allegedly obscene film.  They held that Ohio could not, consistent with the First Amendment, ban the showing of a French film called The Lovers (Les Amants) under state obscenity laws.

Although the Court held that the movie could not be banned by the obscenity exception to the First Amendment, the court was at a loss to decide on any one rationale as to why.  There were four different opinions given by the majority, and it wasn’t until Miller v. California, 413 U.S. 15 (1973), that the Court would redefine its definition of obscenity under the three-prong Miller test.  The Jacobellis case is noteworthy because a famous quote came out of it from one of the justices who issued a concurring opinion.

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Justice Potter Stewart’s concurrence held that the Constitution protected all obscenity except “hard-core pornography.”  Stewart wrote, “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.”

“I know it when I see it.”  That seems rather arbitrary; doesn’t it?  It almost makes one wonder if the justices of the U.S. Supreme Court would have to be the final arbiters of anything claimed to be hardcore pornographic and obscene.  How would people know what to expect and where the line should be drawn?

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It neither smacks of the kind of black and white bright line demarcation that one would except from a conservative legal mind, nor does it apply the flexible leeway present in a multi-factor test to allow liberal activist judges to take liberty and cover themselves when they make arbitrary decisions.  Instead, it is completely arbitrary and interested parties would just have to try to put themselves in the mind of Justice Stewart and imagine what he would perceive.  It’s no wonder that the issue would come up again and the court would later adopt a factor test that could be applied, while leaving some wiggle room for those who would seek to limit speech under obscenity laws.

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I found all of this interesting, but really something hit me when I was reading a quote from former CIA director Casey, who said “We’ll know our disinformation program is complete when everything the American public believes is false.”  What struck me is that hardcore pornography and obscenity have something in common with the truth, besides being a type of speech that some people wish to regulate and stamp out of existence.

The truth has a certain ring to it.  Justice Potter Stewart could have been talking about the truth when he said “I know it when I see it,” but instead he was speaking about pornography.

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Could it be that that type of speech which is the most reviled by society has the greatest ability to smack a person in the face and be instantly recognizable for what it is, whether that type of speech is vile and reprehensible because it is utterly obscene, or whether that speech is pure and admirable because it is utterly true?  Do the two types of speech which appear on opposite ends of the spectrum have something in common, and is it that commonality that causes people to want to shut it down?

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Is our society only comfortable living under a regimen of speech that exists as sort of a grey area where nothing is true, nothing offends, everything is safe, and there can be no controversy one way or another because we have effectively limited speech only to those areas where we do not fully understand what it is we are looking at, because it doesn’t smack us in the face as either totally reprehensible and lewd, or completely honest and pure?  Isn’t that the real obscenity that should be feared by a society that seeks to promote the highest and noblest aspirations of social organization with a system of government that is supposed to protect the freedom of citizens and the rights of individuals?

Copyright 2014 by Baby Victor Productions.

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