On "I know it when I see it." (Supreme Court Justice Potter Stewart's famous opinion regarding pornography).

• Author: Gewirtz, Paul

My subject is one of the most famous phrases in the entire history of Supreme Court opinions: "I know it when I see it." The phrase appears in Justice Potter Stewart's concurring opinion in Jacobellis v. Ohio,(1) a pornography case decided by the Court in 1964. Although many people have appropriated the phrase--some approvingly, some not--no one has ever examined it in any way commensurate with its fame. But the phrase repays reflection. Aside from its provocative place in the history of pornography regulation, "I know it when I see it" invites us to reappraise the role of nonrational elements in judicial decisionmaking, which I think deserve both more attention and more acceptance than they typically enjoy. Such a reappraisal is my underlying purpose here.

Jacobellis v. Ohio involved a theater owner who had been convicted for showing The Lovers, an early film directed by the marvelous French filmmaker Louis Malle. The story in The Lovers concerns a woman in an unhappy marriage--the woman was played by the actress Jeanne Moreau--and the claim that the film was obscene rested almost entirely upon a scene of lovemaking toward the end of the film. The leading First Amendment cases concerning pomography at the time were Roth v. United States and Alberts v. California,(2) decided shortly before Potter Stewart joined the Court. These cases offered a three-part characterization of suppressible pornography: It "appeal[s] to prurient interest," "goes substantially beyond customary limits of candor," and is "utterly without redeeming social importance."(3) But by 1964, when Jacobellis came to the Court, the Justices were sharply divided about what the earlier cases meant and how the Court should treat pornography.

By a 6-3 vote, the Supreme Court reversed the Jacobellis conviction. But the Court was utterly fragmented. There were seven separate opinions, and no majority opinion-indeed, not one of the seven opinions received more than two votes. In his famous, if brief, concurring opinion, Justice Stewart concluded that the film was protected by the First Amendment since it was not "hard-core pornography":

It is possible to read the Court's opinion in Roth v. United States and Alberts v. California 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, that under the First and Fourteenth Amendments criminal laws in this area are constitutionally limited to 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.(4)

There is not much about the phrase "I know it when I see it" that is startling in itself. If we heard it at a dinner party, few heads would turn. Indeed, there is something familiar about both its rhetoric and content, its symmetrical equation of seeing and knowing, and its insistence that some knowledge comes immediately from seeing, not from deliberating. The phrase has a vague resonance with other popular phrases having a similar rhetorical structure and content: "Seeing is believing." "Out of sight out of mind." "Takes one to know one." Yet it did startle, even shock, when it appeared, and it continues to do so today. The shock derives totally from its location within a Supreme Court opinion, since both its rhetoric and its content are so unusual in that context.

The reactions to "I know it when I see it" emerge against a backdrop of a set of traditional beliefs about the appropriate basis for judicial decisions and the appropriate content of judicial opinions. These beliefs arise from a wholly justified concern about the legitimacy of judicial power in a democracy, particularly in constitutional cases where unelected judges say "no" to the decisions of elected legislatures. Judicial power involves coercion over other people, and that coercion must be justified and have a legitimate basis. The central justification for that coercion is that it is compelled, or at least constrained, by preexisting legal texts and legal rules, and by legal reasoning set forth in a written opinion. From this perspective, the exercise of judicial power is not legitimate if it is based on a judge's personal preferences rather than law that precedes the case, on subjective will rather than objective analysis, on emotion rather than reasoned reflection.

"I know it when I see if' has many fans in addition to the millions of people who have incorporated it into their daily speech.(5) It has been quoted in more than 150 federal court decisions,(6) and has been praised by Richard Posner for its "candor" and by Harry Kalven as "realistic and gallant."(7) But from the perspective of the traditional model of judging, "I know it when I see it" is disturbing. For one, it raises concerns about the basis for Stewart's decision. The decision seems to be based on a nonrational, intuitive gut reaction, instead of reasoned analysis; it seems to be utterly subjective and personal. In addition, regardless of how Stewart actually reached his decision in the case, his written opinion raises a further problem: Instead of explaining himself with reasons, he seems just to assert his conclusion with self-referential confidence.

My goal here is to suggest that such criticism is unfair. First, it wrongly characterizes what Stewart was doing in Jacobellis. Second, and more generally, such criticism mischaracterizes and understates the role that emotion and nonrational elements properly play in forming judicial judgments and in presenting those judgments in judicial opinions. In short, I want to identify and celebrate various ways in which nonrational as well as rational elements enter judicial decisions, And in doing so, I hope to add more scenic texture to the map of our legal life than we in the academic world usually acknowledge.

I

First, let us examine the Jacobellis concurrence as a whole. I see evidence of reasoning everywhere. Justice Stewart begins by saying he has assessed the precedents and thinks that they can be read in various ways, immediately establishing that there is no clearly settled law that decides this case. Next, he graciously adds that he is not criticizing the Court for those unclarities, since they reflect not so much a fault of craft as perhaps a fault of mission. The task in those cases, he says, was "trying to define what may be indefinable."(8) Note the tentativeness of these words, and their suggestion that the Court is involved in an ongoing project that will have to play out over time, and that may end in failure.

In the next sentence of his opinion, Justice Stewart announces where his own efforts to draw the line between protected and unprotected sexual expression have taken him. "I have reached the conclusion," he says--suggesting that a path of reflection preceded his conclusion--that criminal prohibition must be limited to "hard-core pornography." He then adds: "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."(9) Justice Stewart's conclusion that the category of unprotected sexual expression is restricted to "hard-core pornography" is a very significant limiting description of what is unprotected. It is not the utter absence of description as some critics of the phrase "I know it when I see it" suggest, but a significantly smaller category of punishable expression than most other members of the Court (and even the Attorney General) wanted. And once again Stewart underscores the evolutionary nature of the project; the phrase "hard-core pornography" is not the last word on the subject, but just an interim word, with the effort to give "further" definition deferred, not disregarded. He concludes with the famous sentence, short-circuiting further definition in this case: "But I know it when I see it, and the motion picture involved in this case is not that."

Thus, one way of reading Stewart's Jacobellis opinion is as a snapshot of reflection in midflight. We are so accustomed to the tone of authoritative perfectionism as the judicial voice that Stewart's reflective tentativeness is startling, even today. And yet resolving cases with some uncertainty surely is a common reality. A judge has an obligation to decide many cases, and to decide them relatively quickly. Indefinitely delaying a judicial decision is more at odds with a judge's role than deciding with some tentativeness, figuring out the gist of one's position and delaying to another day the working out of all of the details.

This is particularly true in cases that are easy on their facts--as I believe Justice Stewart thought Jacobellis was--since developing a refined definition of what would be unprotected speech is not necessary when the film in question is so clearly outside that category. The burden of justification, moreover, is plausibly less in a case where the judgment is not to punish than in a case imposing punishment. Indeed, for a judge who is strongly speech-protective, as Stewart was, prematurely trying to define an entire category of unprotected speech creates a particular risk: It might unleash excessive censorship. Caution is well advised. Put more generally, there are good reasons to accept the imperfect in a judge. We should encourage judges to believe and say: This is the best I can do now; it doesn't solve all the problems, but it's a start, and I'll keep thinking. Believing and saying that is not at odds with the spirit of reason, but rather is its exemplification.

Justice Stewart did not go beyond "I know it...