The internet age — and the ubiquity of pornography in popular culture — has quickly propelled into antiquity the unintentionally famous phrase, “I know it when I see it.”
What’s the history?
In 1964, the U.S. Supreme Court heard arguments over the French film, “Les Amants,” which translates to “The Lovers.” Toward the end of the movie, there is a gratuitously sexual scene — an explicit sequence many argued at the time was obscene and harmful to children.
Concern over the movie worked its way through the courts after Nico Jacobellis, the manager of the Heights Art Movie Theater in Cleveland Heights, Ohio, was convicted for showing the film. The state’s courts decided the movie was, in fact, obscene, which led to Jacobellis’ conviction. He appealed that ruling and, ultimately, the justices of the Supreme Court sided with the manager.
It was in his concurrent opinion that then-Justice Stewart Potter famously wrote, “I know it when I see it.” He was referring to obscenity. The movie, he asserted, didn’t meet the murky definition for “obscene,” which the high court had previously described in the 1957 case Roth v. United States and later amended in the 1973 case Miller v. California.
Listen to the latest episode of “Quick Start” 👇
In the 6-3 decision in the Roth case, Justice William J. Brennan, Jr., wrote the First Amendment was not intended to protect forms of expression that are “utterly without redeeming social importance” and held the Supreme Court’s standard for obscene content as “whether, to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.”
Then, in 1973, during the Miller case, Chief Justice Warren Burger outlined the so-called “guidelines” for obscenity, which became known as the “Miller test.” The three prongs are: “(1) whether the average person applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; 2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.”
The 1973 update marked a significant cultural shift by removing the phrase, “utterly without redeeming social importance,” from the legal understanding of obscenity.
Where are we now?
All of that serves as a backdrop to where the Supreme Court is today.
On Wednesday morning, the nine justices heard oral arguments over a Texas law requiring internet pornography distributors — like Pornhub — to put in place age-verification measures ensuring minors are unable to access sexually explicit material.
The Lone Star State is one of 19 states that, in the last two-and-a-half years, have passed age-verification laws for accessing pornography websites, and much of the argument over the matter still centers on free expression and privacy.
But if there is broad agreement children shouldn’t be viewing pornography, and age-verification apparatuses don’t make it illegal for adults to consume explicit content, what is the problem?
The pornography industry believes the Texas statute and similar laws in other states serve as a “substantial chilling effect” that will limit adults who would otherwise watch pornography from engaging with the material because age-verification systems force them to upload identifying material to the internet.
“Adults who submit, for example, a ‘government ID’ over the internet to ‘affirmatively identify themselves’ understand that they are thereby exposing themselves to ‘inadvertent disclosures, leaks, or hacks,” read a filing from the pornography industry.
Derek Shaffer, the attorney representing the industry, argued Wednesday there just aren’t enough protections in the Texas law to protect internet users, CNN reported.
He said, “The tradition on the internet is to say that it will be free and that it is incumbent upon parents to screen out content that is inappropriate for their kids.”
Justice Sonia Sotomayor, one of the high court’s left-leaning justices, called into question whether the Texas law could pass the judicial review standard of strict scrutiny, a stringent evaluation to determine the constitutionality of a law or government action. Fellow leftist Justice Ketanji Brown Jackson agreed, according to a report from SCOTUSblog.
Even still, several of the conservative justices raised concerns for the industry attorney.
One of the central concerns among Justices Samuel Alito, Amy Coney Barrett, and Brett Kavanaugh was over whether parental filtering systems actually work as a sufficient stopgap to ensure underage children don’t access pornography.
“Do you know a lot of parents who are more tech savvy than their 15-year-old children?” Alito asked. “C’mon, be real.”
Barrett added, “Kids can get online porn through gaming systems, tablets, phones, computers. Let me just say that content filtering for all those different devices — I can say from personal experience — is difficult to keep up with. And I think that the explosion of addiction to online porn has shown that content filtering isn’t working.”
Alito, for his part, went right to the crux of the argument, unearthing the decades-old argument over what, in fact, constitutes obscenity, invoking an old, oft-referenced joke about people picking up copies of the pornographic Playboy magazine to read the articles printed inside.
“What percentage of the material on that is not obscene?” he quipped. “Is it like the old Playboy — you have essays on [Pornhub] by … Gore Vidal and William F. Buckley, Jr.?”
And Chief Justice John Roberts just acknowledged a reality: the pornography of today is in no way comparable to the pornography available when the “I know it when I see it” litmus test first arrived on the scene.
“The nature of the pornography, I think, has also changed in those 35 years,” he said. “And so, are those the sort of developments that suggest revisiting the standard of scrutiny … as opposed to keeping a structure that was accepted and established in an entirely different era?”
Of reconsidering the standard, Shaffer said, “I respectfully urge you not to, Mr. Chief Justice.”
The Supreme Court is expected to rule on Free Speech Coalition, Inc. v. Paxton in late June or early July.
***As the number of voices facing big-tech censorship continues to grow, please sign up for Faithwire’s daily newsletter and download the CBN News app, developed by our parent company, to stay up-to-date with the latest news from a distinctly Christian perspective.***