WEBVTT 00:00:00.000 --> 00:00:02.100 Have you ever tried to define a concept that 00:00:02.100 --> 00:00:05.240 feels completely blindingly obvious in your head? 00:00:05.900 --> 00:00:09.320 But the absolute second you try to put it into 00:00:09.320 --> 00:00:11.640 words, it just disintegrates. Oh, constantly. 00:00:11.779 --> 00:00:13.880 It's like trying to hold on to water. Right. 00:00:14.060 --> 00:00:17.600 Like, imagine trying to define the exact geographical 00:00:17.600 --> 00:00:20.320 or, I guess, hydrological boundary between a 00:00:20.320 --> 00:00:22.600 pond and a lake. Right. Yeah. You know a lake 00:00:22.600 --> 00:00:24.699 when you see one. Right. You know a pond. Yeah. 00:00:25.140 --> 00:00:27.780 But locating the precise linguistic line where 00:00:27.780 --> 00:00:31.379 one officially becomes the other, it's just maddening. 00:00:31.559 --> 00:00:33.820 Because what is it? Is it the depth? Exactly. 00:00:33.880 --> 00:00:36.759 Is it the surface area? The presence of a localized 00:00:36.759 --> 00:00:38.920 current, maybe? Right. Or think about something 00:00:38.920 --> 00:00:41.179 even more fundamental, like trying to explain 00:00:41.179 --> 00:00:43.219 to someone what the color blue actually looks 00:00:43.219 --> 00:00:45.200 like. Oh, that's a classic philosophical trap. 00:00:45.219 --> 00:00:48.000 It really is. And I mean, not providing a list 00:00:48.000 --> 00:00:50.479 of things that are blue and not describing, you 00:00:50.479 --> 00:00:53.020 know, the scientific wavelength of light, but 00:00:53.020 --> 00:00:56.020 conveying the actual visual internal experience 00:00:56.020 --> 00:00:58.880 of the color itself. You can't. You ultimately 00:00:58.880 --> 00:01:01.340 just can't do it. No, you are forced to just 00:01:01.340 --> 00:01:03.859 point at the sky and say, that. That right there 00:01:03.859 --> 00:01:06.140 is blue. Yeah, we encounter these hard limits 00:01:06.140 --> 00:01:08.540 of language all the time. We do, and usually 00:01:08.540 --> 00:01:11.420 it's just a quirk of the human condition. But 00:01:11.420 --> 00:01:14.180 today, we are exploring what happens when the 00:01:14.180 --> 00:01:17.060 highest court in the United States runs face 00:01:17.060 --> 00:01:20.099 -first into that exact same problem. And it is 00:01:20.099 --> 00:01:23.000 a spectacular collision. It really is. We are 00:01:23.000 --> 00:01:25.180 looking at a moment when the foundational law 00:01:25.180 --> 00:01:27.680 of the land, specifically the First Amendment's 00:01:27.680 --> 00:01:30.159 protection of free speech, collided with the 00:01:30.159 --> 00:01:32.640 absolute boundaries of our vocabulary. It's a 00:01:32.640 --> 00:01:36.180 fascinating intersection of law and really human 00:01:36.180 --> 00:01:39.140 perception. Definitely. Our deep dive today traces 00:01:39.140 --> 00:01:41.739 the historical and philosophical journey of a 00:01:41.739 --> 00:01:44.659 single legendary phrase. I know it when I see 00:01:44.659 --> 00:01:47.409 it. Such an iconic line. So iconic. We are going 00:01:47.409 --> 00:01:50.450 to unpack the chaotic history of U .S. obscenity 00:01:50.450 --> 00:01:52.989 law that led to a Supreme Court justice effectively 00:01:52.989 --> 00:01:55.870 throwing his hands up in defeat and the ongoing 00:01:55.870 --> 00:01:59.150 incredibly messy struggle to legally regulate 00:01:59.150 --> 00:02:01.370 human expression based on our sources today. 00:02:01.569 --> 00:02:04.489 And as we lay the groundwork for this, it is 00:02:04.489 --> 00:02:06.569 crucial to establish our analytical framework 00:02:06.569 --> 00:02:09.110 right up front. Yes, very important. We are stepping 00:02:09.110 --> 00:02:12.009 into a realm that is historically fraught with 00:02:12.009 --> 00:02:14.469 intense cultural and political debate. To say 00:02:14.469 --> 00:02:17.370 the least. Right. So our objective here is strictly 00:02:17.370 --> 00:02:20.090 analytical. We're not examining the morality 00:02:20.090 --> 00:02:22.289 of the material these court cases center around, 00:02:22.870 --> 00:02:25.409 nor are we taking a stance on the broader cultural 00:02:25.409 --> 00:02:29.169 wars over censorship. We are impartially examining 00:02:29.169 --> 00:02:31.830 a structural philosophical problem. Exactly. 00:02:32.430 --> 00:02:34.789 What's fascinating here is how the American legal 00:02:34.789 --> 00:02:38.520 system An institution entirely predicated on 00:02:38.520 --> 00:02:41.659 the necessity of strict, objective, and universally 00:02:41.659 --> 00:02:44.860 applicable definitions was forced to rub in with 00:02:44.860 --> 00:02:47.439 the fact that it occasionally has to rely on 00:02:47.439 --> 00:02:50.960 pure, subjective human instinct. Yeah, it's like 00:02:50.960 --> 00:02:52.780 trying to build a house out of feelings. That 00:02:52.780 --> 00:02:54.840 is a great way to put it. We are looking at this 00:02:54.840 --> 00:02:56.780 through the lens of epistemology just as much 00:02:56.780 --> 00:02:59.000 as jurisprudence. This is fundamentally a story 00:02:59.000 --> 00:03:01.300 about how the law struggles when it is asked 00:03:01.300 --> 00:03:03.879 to regulate the unutterable. OK, let's unpack 00:03:03.879 --> 00:03:06.080 this by heading straight into the catalyst, the 00:03:06.080 --> 00:03:08.680 phrase heard around the court. Let's do it. The 00:03:08.680 --> 00:03:12.099 year is 1964, and the case is Jocobeles v. Ohio. 00:03:12.319 --> 00:03:15.180 A landmark moment. The controversy at the heart 00:03:15.180 --> 00:03:18.039 of this Supreme Court showdown didn't revolve 00:03:18.039 --> 00:03:21.400 around, you know, a piece of illicit underground 00:03:21.400 --> 00:03:24.020 material, but rather a French motion picture. 00:03:24.259 --> 00:03:26.900 An arthouse film, really. Exactly. The film was 00:03:26.900 --> 00:03:30.159 called The Lovers, directed by Louis Malle. It 00:03:30.159 --> 00:03:32.319 had already won the special jury prize at the 00:03:32.319 --> 00:03:35.020 Venice Film Festival. So it had serious artistic 00:03:35.020 --> 00:03:38.430 credentials. It did. But when a theater manager 00:03:38.430 --> 00:03:41.110 named Nico Jacobellis screened it in Cleveland 00:03:41.110 --> 00:03:44.330 Heights, Ohio, the local authorities arrested 00:03:44.330 --> 00:03:47.090 and convicted him for possessing and exhibiting 00:03:47.090 --> 00:03:49.650 an obscene film. Which is wild to think about 00:03:49.650 --> 00:03:51.650 today, a theater manager being hauled off to 00:03:51.650 --> 00:03:54.069 jail for showing a Venice Film Festival winner. 00:03:54.210 --> 00:03:56.189 It really highlights the tension of the era. 00:03:56.699 --> 00:03:59.280 And the conviction of Jaco Bella sets up a perfect 00:03:59.280 --> 00:04:02.240 constitutional stress test. It really does. Yeah. 00:04:02.340 --> 00:04:04.560 Because when the case finally reaches the Supreme 00:04:04.560 --> 00:04:07.180 Court, the justices are resented with what amounts 00:04:07.180 --> 00:04:09.199 to a threshold test. Right. They have to make 00:04:09.199 --> 00:04:12.180 a foundational binary determination before any 00:04:12.180 --> 00:04:15.539 further legal theory can be applied. Is the levers 00:04:15.539 --> 00:04:18.319 protected speech under the First Amendment, or 00:04:18.319 --> 00:04:20.860 does it cross a line into obscenity? Which would 00:04:20.860 --> 00:04:23.300 strip it of constitutional protection. Exactly, 00:04:23.680 --> 00:04:26.100 thereby allowing the state of Ohio to legally 00:04:26.100 --> 00:04:29.040 ban it and imprison the theater manager. And 00:04:29.040 --> 00:04:31.759 this is where Justice Potter Stewart steps into 00:04:31.759 --> 00:04:35.339 the historical spotlight. He is tasked, alongside 00:04:35.339 --> 00:04:37.980 his colleagues, with evaluating this boundary. 00:04:38.180 --> 00:04:40.279 And he takes a very unique approach. He does. 00:04:40.740 --> 00:04:43.600 The court ultimately overturned Jacobellis' conviction, 00:04:44.100 --> 00:04:47.310 ruling that the film was protected. But Stuart 00:04:47.310 --> 00:04:49.569 didn't just sign on to the majority opinion and 00:04:49.569 --> 00:04:51.750 call it a day. No, he felt the need to speak 00:04:51.750 --> 00:04:54.490 for himself. He wrote his own short concurrence. 00:04:55.089 --> 00:04:57.550 And rather than drafting a dense legal doctrine 00:04:57.550 --> 00:04:59.649 outlining exactly where the boundary of First 00:04:59.649 --> 00:05:02.069 Amendment protection lies, he writes something 00:05:02.069 --> 00:05:04.110 radically different. Something much more human. 00:05:04.250 --> 00:05:06.250 I want to read his exact phrasing here, because 00:05:06.250 --> 00:05:09.110 the candor is just striking. He wrote, I shall 00:05:09.110 --> 00:05:11.230 not today attempt further to define the kinds 00:05:11.230 --> 00:05:13.589 of material I understand to be embraced within 00:05:13.589 --> 00:05:17.089 that shorthand description, quote, hardcore pornography, 00:05:17.230 --> 00:05:20.189 unquote. And perhaps I could never succeed in 00:05:20.189 --> 00:05:22.889 intelligibly doing so. But I know it when I see 00:05:22.889 --> 00:05:25.370 it. And the motion picture involved in this case 00:05:25.370 --> 00:05:28.329 is not that it is a remarkable admission from 00:05:28.329 --> 00:05:31.110 a jurist of that caliber. Truly to just say, 00:05:31.189 --> 00:05:34.360 I can't define it, but my gut knows. But before 00:05:34.360 --> 00:05:37.060 we analyze the fallout of that admission, we 00:05:37.060 --> 00:05:40.019 need to clarify a significant historical misconception 00:05:40.019 --> 00:05:42.240 regarding the text itself that our sources point 00:05:42.240 --> 00:05:44.560 out. Oh, right, the terminology he used. Yes. 00:05:44.860 --> 00:05:48.500 In popular culture, and even in some legal shorthand, 00:05:48.720 --> 00:05:51.000 I know it when I see it, is frequently cited 00:05:51.000 --> 00:05:53.480 as Justice Stewart's official test for obscenity. 00:05:53.660 --> 00:05:56.740 Which is actually incorrect. It is. A close reading 00:05:56.740 --> 00:05:59.699 of his concurrence reveals he deliberately avoided 00:05:59.699 --> 00:06:02.699 using the word obscenity in that specific passage. 00:06:02.990 --> 00:06:05.709 He was referring exclusively to the shorthand 00:06:05.709 --> 00:06:08.430 description of hardcore pornography. That distinction 00:06:08.430 --> 00:06:10.529 completely shifts the context of what he was 00:06:10.529 --> 00:06:13.110 trying to achieve. It does. Obscenity was the 00:06:13.110 --> 00:06:15.509 broader, heavily debated legal category the court 00:06:15.509 --> 00:06:17.529 was wrestling with. But Stewart was essentially 00:06:17.529 --> 00:06:20.550 arguing that the category was too broad. Precisely. 00:06:21.089 --> 00:06:23.209 He was attempting to carve out a microscopic 00:06:23.209 --> 00:06:26.389 subcategory hardcore pornography as the only 00:06:26.389 --> 00:06:29.149 conceivable type of expression that he felt could 00:06:29.149 --> 00:06:31.470 legitimately be stripped of First Amendment protection. 00:06:31.709 --> 00:06:34.490 He was drawing a much tighter circle than many 00:06:34.490 --> 00:06:37.350 of his peers. Much tighter. But the problem wasn't 00:06:37.350 --> 00:06:40.329 his intent. The problem was his methodology. 00:06:40.790 --> 00:06:44.250 Because it's completely subjective. Just imagine 00:06:44.250 --> 00:06:47.269 the audacity of this moment for a second. Picture 00:06:47.269 --> 00:06:49.670 a Supreme Court justice essentially throwing 00:06:49.670 --> 00:06:51.990 their hands up in the air and saying, I can't 00:06:51.990 --> 00:06:54.569 define the law, but my gut will tell me if you 00:06:54.569 --> 00:06:57.759 broke it. It's staggering. Yeah. And the reaction 00:06:57.759 --> 00:07:00.620 from the legal community perfectly encapsulated 00:07:00.620 --> 00:07:03.279 the tension this ruling created. It really split 00:07:03.279 --> 00:07:05.540 the room, didn't it? Completely. On one side 00:07:05.540 --> 00:07:07.699 of the aisle, you had a faction of legal scholars 00:07:07.699 --> 00:07:10.759 who lauded Stewart's standard as realistic and 00:07:10.759 --> 00:07:12.639 gallant. Gallant is an interesting word for it. 00:07:12.750 --> 00:07:15.250 They viewed it as a necessary injection of realism 00:07:15.250 --> 00:07:18.290 into a court that often hid behind opaque circular 00:07:18.290 --> 00:07:21.009 legal tests. They appreciated his willingness 00:07:21.009 --> 00:07:23.829 to admit that some concepts simply defy strict 00:07:23.829 --> 00:07:26.110 codification. It's the moment someone finally 00:07:26.110 --> 00:07:28.670 points out the emperor has no clothes. Exactly. 00:07:28.870 --> 00:07:30.730 He acknowledged that the justices were already 00:07:30.730 --> 00:07:33.009 just using their own subjective judgment anyway, 00:07:33.009 --> 00:07:35.990 and he simply chose to say the quiet part out 00:07:35.990 --> 00:07:38.149 loud. But the criticism on the other side of 00:07:38.149 --> 00:07:41.819 that coin was intense. And frankly, completely 00:07:41.819 --> 00:07:43.939 warranted. Oh, absolutely. The criticism was 00:07:43.939 --> 00:07:46.439 foundational to the concept of a functional justice 00:07:46.439 --> 00:07:49.300 system. Opponents of Stewart's concurrence argued 00:07:49.300 --> 00:07:52.500 that it codified individualistic arbitrariness. 00:07:52.699 --> 00:07:54.680 Which is a terrifying phrase when you're talking 00:07:54.680 --> 00:07:57.740 about the law. It really is. It raises an important 00:07:57.740 --> 00:08:00.660 question regarding the rule of law. The entire 00:08:00.660 --> 00:08:03.720 premise of a legal system is predictability and 00:08:03.720 --> 00:08:05.810 notice. Right, you have to know what the rules 00:08:05.810 --> 00:08:08.089 are. A citizen must be able to understand what 00:08:08.089 --> 00:08:10.670 the law is before they act so they can conform 00:08:10.670 --> 00:08:13.529 their behavior to it. If the boundary between 00:08:13.529 --> 00:08:17.089 protected speech and a prison sentence only exists 00:08:17.089 --> 00:08:20.149 as an unarticulated feeling inside the mind of 00:08:20.149 --> 00:08:22.970 one specific Supreme Court justice. How can a 00:08:22.970 --> 00:08:25.589 theater owner in Ohio possibly know if they are 00:08:25.589 --> 00:08:28.990 breaking the law? They can't. It transforms the 00:08:28.990 --> 00:08:31.389 law from a public rule into a private intuition. 00:08:31.689 --> 00:08:33.629 You're essentially playing a high -stakes game 00:08:33.629 --> 00:08:36.049 where the referee refuses to publish the rulebook 00:08:36.049 --> 00:08:38.210 but still retains the power to eject you from 00:08:38.210 --> 00:08:41.049 the game. And that concept of individualistic 00:08:41.049 --> 00:08:43.850 arbitrariness is antithetical to the idea of 00:08:43.850 --> 00:08:46.549 blind justice. So this naturally leads to the 00:08:46.549 --> 00:08:49.730 question of why? Why would a highly educated, 00:08:49.970 --> 00:08:52.210 deeply experienced justice like Potter Stewart 00:08:52.210 --> 00:08:55.830 abandon strict legal definitions in 1964? To 00:08:55.830 --> 00:08:57.970 understand his frustration, we really have to 00:08:57.970 --> 00:09:00.690 look backward. We do. We need to examine the 00:09:00.690 --> 00:09:03.210 history of obscenity law leading up to Jacobellis, 00:09:03.330 --> 00:09:05.929 a history that was unusually inconsistent and 00:09:05.929 --> 00:09:09.429 heavily reliant on moral panic. Yes. To understand 00:09:09.429 --> 00:09:12.009 Stewart's predicament, we have to establish the 00:09:12.009 --> 00:09:14.110 legal baseline the American courts inherited. 00:09:14.590 --> 00:09:17.750 The English common law roots. Exactly. That requires 00:09:17.750 --> 00:09:21.470 rewinding to 1868 to English common law and a 00:09:21.470 --> 00:09:25.019 case known as R .V. Hicklin. The standard established 00:09:25.019 --> 00:09:27.220 in Hicklin cast a massive restrictive shadow 00:09:27.220 --> 00:09:29.679 over literature and art for nearly a century. 00:09:29.940 --> 00:09:32.019 It's hard to overstate how broad this was. It 00:09:32.019 --> 00:09:34.419 really is. The Hicklin test articulated that 00:09:34.419 --> 00:09:36.980 material could be deemed obscene if it possessed 00:09:36.980 --> 00:09:39.840 the tendency to, quote, deprave and corrupt those 00:09:39.840 --> 00:09:42.440 whose minds are open to such immoral influences. 00:09:42.830 --> 00:09:45.710 Let's really look at the mechanics of that phrasing. 00:09:46.049 --> 00:09:49.409 Deprave and corrupt those whose minds are open 00:09:49.409 --> 00:09:52.490 to such immoral influences. It is incredibly 00:09:52.490 --> 00:09:55.330 sweeping. It completely removes the context of 00:09:55.330 --> 00:09:58.190 the work itself and places the entire legal burden 00:09:58.190 --> 00:10:01.029 on the hypothetical reaction of society's most 00:10:01.029 --> 00:10:03.669 vulnerable hypothetical person. That is the defining 00:10:03.669 --> 00:10:06.490 flaw of the Hicklin rule. It didn't evaluate 00:10:06.490 --> 00:10:09.190 a book or a piece of art based on its impact 00:10:09.190 --> 00:10:11.710 on an average adult. No, it looked for the weakest 00:10:11.710 --> 00:10:14.789 link. It effectively meant that if a judge believed 00:10:14.789 --> 00:10:17.750 a specific passage in a novel might negatively 00:10:17.750 --> 00:10:20.909 influence a highly susceptible person, perhaps 00:10:20.909 --> 00:10:23.409 a child, or someone the court deemed morally 00:10:23.409 --> 00:10:26.169 fragile, the entire work could be suppressed 00:10:26.169 --> 00:10:29.389 for the entire population. That is wild. It reduced 00:10:29.389 --> 00:10:31.950 the reading material of the adult public to a 00:10:31.950 --> 00:10:34.269 standard appropriate only for the nursery. That's 00:10:34.269 --> 00:10:36.809 exactly what it did. Furthermore, under Hicklin, 00:10:37.070 --> 00:10:38.730 courts didn't even have to look at the work as 00:10:38.730 --> 00:10:41.919 a whole. A single isolated passage stripped of 00:10:41.919 --> 00:10:45.340 all surrounding context could condemn a 500 -page 00:10:45.340 --> 00:10:47.600 book. Which explains why so many classic works 00:10:47.600 --> 00:10:49.799 of literature found themselves tied up in court 00:10:49.799 --> 00:10:52.419 for decades under this standard. James Choices 00:10:52.419 --> 00:10:54.360 Ulysses is probably the most famous example of 00:10:54.360 --> 00:10:56.799 that. Right. Banned because of a few passages. 00:10:57.600 --> 00:10:59.820 We operated under the heavy hand of Hicklin for 00:10:59.820 --> 00:11:02.320 a remarkably long time. The major shift doesn't 00:11:02.320 --> 00:11:05.779 occur until 1957. With the Supreme Court case, 00:11:06.159 --> 00:11:09.409 Roth v. United States. Yes, which also folded 00:11:09.409 --> 00:11:12.429 in reaffirmations from an earlier 1913 case, 00:11:12.889 --> 00:11:16.279 United States v. Kennerly. In Roth, the Supreme 00:11:16.279 --> 00:11:18.440 Court recognizes that the Hicklin standard is 00:11:18.440 --> 00:11:20.700 just incompatible with modern First Amendment 00:11:20.700 --> 00:11:23.200 jurisprudence. They realize it was far too restrictive. 00:11:23.460 --> 00:11:25.799 Exactly. And they attempt to construct a more 00:11:25.799 --> 00:11:28.399 rigorous test. They determine that obscenity 00:11:28.399 --> 00:11:30.860 is material where the dominant theme taken as 00:11:30.860 --> 00:11:34.059 a whole appeals to the prurient interest. That 00:11:34.059 --> 00:11:36.539 phrasing is key. It is. And crucially, they dictate 00:11:36.539 --> 00:11:38.559 that it must be judged by the average person 00:11:38.559 --> 00:11:41.419 applying contemporary community standards. The 00:11:41.419 --> 00:11:44.149 Roth decision represents a monumental pivot in 00:11:44.149 --> 00:11:46.450 American law. Because it finally ditches Hicklin. 00:11:46.590 --> 00:11:48.929 By mandating that a work must be evaluated by 00:11:48.929 --> 00:11:51.509 its dominant theme taken as a whole, the court 00:11:51.509 --> 00:11:54.029 finally dismantled the Hicklin practice of banning 00:11:54.029 --> 00:11:56.970 a book based on a single, isolated paragraph. 00:11:57.129 --> 00:11:58.809 You actually have to read the whole book now. 00:11:58.870 --> 00:12:01.870 Right. They also deliberately replaced the most 00:12:01.870 --> 00:12:04.370 susceptible person standard with the average 00:12:04.370 --> 00:12:06.330 person. Which makes much more sense. It does. 00:12:06.769 --> 00:12:09.049 However, the introduction of the phrase appeals 00:12:09.049 --> 00:12:12.649 to the prurient interest. created entirely new 00:12:12.649 --> 00:12:14.970 complications. Because what does prurient actually 00:12:14.970 --> 00:12:17.789 mean in practice? Exactly. The court was trying 00:12:17.789 --> 00:12:21.009 to delineate between standard, acceptable expressions 00:12:21.009 --> 00:12:23.730 of human sexuality and material that encouraged 00:12:23.730 --> 00:12:27.429 a morbid, excessive, or utterly degrading obsession 00:12:27.429 --> 00:12:30.309 with sex. But they merely swapped one set of 00:12:30.309 --> 00:12:32.610 deeply subjective variables for another. They 00:12:32.610 --> 00:12:36.190 did. They tasked local judges and juries with 00:12:36.190 --> 00:12:38.610 defining the average person and determining the 00:12:38.610 --> 00:12:41.210 contemporary community standards. Which varies 00:12:41.210 --> 00:12:43.809 wildly from place to place. And this brings out 00:12:43.809 --> 00:12:46.690 a massive philosophical friction in the decision. 00:12:47.409 --> 00:12:49.789 The justices in Roth were writing during an era 00:12:49.789 --> 00:12:52.029 where they were actively expanding First Amendment 00:12:52.029 --> 00:12:54.610 protections in other areas. Yes, civil rights 00:12:54.610 --> 00:12:57.450 speech, political speech. In the very text of 00:12:57.450 --> 00:13:00.620 the decision, they acknowledge that All ideas 00:13:00.620 --> 00:13:03.860 having even the slightest redeeming social importance 00:13:03.860 --> 00:13:06.779 possess the full protection of constitutional 00:13:06.779 --> 00:13:10.299 guarantees. That is a sweeping defense of free 00:13:10.299 --> 00:13:13.539 expression. It is a massive field. Yet they simultaneously 00:13:13.539 --> 00:13:16.259 ruled that obscenity is utterly without redeeming 00:13:16.259 --> 00:13:18.600 social importance and therefore falls completely 00:13:18.600 --> 00:13:20.899 outside the First Amendment. If we connect this 00:13:20.899 --> 00:13:24.039 to the bigger picture, the court in Roth essentially 00:13:24.039 --> 00:13:27.549 created a constitutional paradox. How so? They 00:13:27.549 --> 00:13:30.389 affirmed that all ideas with slight social importance 00:13:30.389 --> 00:13:33.590 are protected, but then handed the power to determine 00:13:33.590 --> 00:13:36.610 what constitutes social importance and prurient 00:13:36.610 --> 00:13:40.250 interest down to local communities based on contemporary 00:13:40.250 --> 00:13:42.929 standards. Oh, I see. They allowed localized 00:13:42.929 --> 00:13:46.350 public sensibility to act as a veto over individual 00:13:46.350 --> 00:13:48.450 First Amendment rights. Because what is deeply 00:13:48.450 --> 00:13:51.090 offensive in one county might be completely acceptable 00:13:51.090 --> 00:13:53.870 in the next. Exactly. Meaning a federal constitutional 00:13:53.870 --> 00:13:56.659 right suddenly varied. depending on your zip 00:13:56.659 --> 00:13:58.799 code. And that brings us full circle to Potter 00:13:58.799 --> 00:14:01.879 Stewart in 1964. Right back to Jacob Ellis. When 00:14:01.879 --> 00:14:04.000 Stewart looked at the landscape created by the 00:14:04.000 --> 00:14:06.399 Roth decision, he didn't see a well -functioning 00:14:06.399 --> 00:14:09.179 legal standard. He saw local censorship boards 00:14:09.179 --> 00:14:12.720 running amok. He saw the flaw in relying on community 00:14:12.720 --> 00:14:15.860 standards to protect a national right. Yes. His 00:14:15.860 --> 00:14:18.799 famous I know it when I see it concurrence wasn't 00:14:18.799 --> 00:14:21.659 a flippant disregard for the law. It was a desperate 00:14:21.659 --> 00:14:24.220 attempt to severely narrow the scope of Roth. 00:14:24.429 --> 00:14:26.950 Stewart recognized that contemporary community 00:14:26.950 --> 00:14:30.649 standards was too broad a net. He wanted to establish 00:14:30.649 --> 00:14:34.549 a baseline where virtually all speech, regardless 00:14:34.549 --> 00:14:36.970 of how offensive a local community found it, 00:14:37.330 --> 00:14:39.289 retained constitutional protection. He was trying 00:14:39.289 --> 00:14:42.110 to protect speech. He was. He believed the only 00:14:42.110 --> 00:14:44.230 material that the state had a compelling interest 00:14:44.230 --> 00:14:48.049 to suppress was the absolute undeniable extreme, 00:14:48.350 --> 00:14:51.230 what he termed hardcore pornography. He was trying 00:14:51.230 --> 00:14:53.330 to build an impenetrable fortress around the 00:14:53.330 --> 00:14:55.730 First Amendment. But because he couldn't legally 00:14:55.730 --> 00:14:58.129 define the one exception to the rule, he ended 00:14:58.129 --> 00:15:00.690 up building the gate to that fortress out of 00:15:00.690 --> 00:15:03.049 completely invisible material. That is a brilliant 00:15:03.049 --> 00:15:05.730 analogy. He wanted to protect speech, but the 00:15:05.730 --> 00:15:08.169 practical reality of an invisible legal standard 00:15:08.169 --> 00:15:12.710 is chaos. And the chaos was immediate and profound. 00:15:13.590 --> 00:15:16.009 So what does this all mean for a local judge 00:15:16.009 --> 00:15:19.309 trying to apply the law after Jacob Ellis? Post 00:15:19.309 --> 00:15:21.389 Jacob Ellis, the lower courts were left without 00:15:21.389 --> 00:15:23.090 a functional compass. They were in the dark. 00:15:23.330 --> 00:15:25.490 Completely. When a local magistrate was presented 00:15:25.490 --> 00:15:27.730 with a controversial publication, they could 00:15:27.730 --> 00:15:30.929 no longer reliably apply the Roth standard because 00:15:30.929 --> 00:15:33.129 the Supreme Court had fractured on how to interpret 00:15:33.129 --> 00:15:35.929 it. And they certainly couldn't apply Stewart's 00:15:35.929 --> 00:15:38.750 standard. No, because Potter Stewart knows it 00:15:38.750 --> 00:15:41.710 when he sees it is fundamentally useless to anyone 00:15:41.710 --> 00:15:43.730 who isn't Potter Stewart. Right. You can't just 00:15:43.730 --> 00:15:45.389 call him up and ask him to watch every movie 00:15:45.389 --> 00:15:48.110 in the country. Exactly. So recognizing that 00:15:48.110 --> 00:15:50.830 they had inadvertently broken the system, the 00:15:50.830 --> 00:15:53.090 Supreme Court attempted a rapid fix just two 00:15:53.090 --> 00:15:56.990 years later in 1966. With a case called Memoirs 00:15:56.990 --> 00:15:59.769 v. Massachusetts. The Memoirs case. They tried 00:15:59.769 --> 00:16:02.649 to codify a modified version of the Roth standard. 00:16:02.669 --> 00:16:05.110 aiming for a test that was far more protective 00:16:05.110 --> 00:16:07.610 of speech. They really tried to set the bar higher. 00:16:07.990 --> 00:16:10.549 Under memoirs, the court stated that for a work 00:16:10.549 --> 00:16:14.210 to be deemed obscene, it had to meet three specific 00:16:14.210 --> 00:16:17.110 criteria. One, it must be patently offensive. 00:16:17.529 --> 00:16:20.929 Two, it must appeal to prurient interest. And 00:16:20.929 --> 00:16:24.250 three, it must be utterly without redeeming social 00:16:24.250 --> 00:16:28.230 value. That third prong, utterly without redeeming 00:16:28.230 --> 00:16:30.909 social value, was a massive hurdle for the state 00:16:30.909 --> 00:16:33.639 to overcome. Utterly without is a very strong 00:16:33.639 --> 00:16:36.519 absolute. It essentially required prosecutors 00:16:36.519 --> 00:16:39.299 to prove a negative. If a defense attorney could 00:16:39.299 --> 00:16:42.100 demonstrate that a novel contained even a microscopic 00:16:42.100 --> 00:16:44.960 fraction of literary, political, or historical 00:16:44.960 --> 00:16:47.580 value, the work was shielded from censorship. 00:16:47.799 --> 00:16:50.259 Just a tiny drop of value saves the whole thing. 00:16:50.559 --> 00:16:52.940 Exactly. While this was highly protective of 00:16:52.940 --> 00:16:55.240 publishers and authors, it proved practically 00:16:55.240 --> 00:16:57.879 unworkable in the courts. Prosecutors found it 00:16:57.879 --> 00:16:59.980 nearly impossible to secure convictions. Because 00:16:59.980 --> 00:17:02.039 you can argue anything has some value to someone. 00:17:02.299 --> 00:17:04.559 Right. And as our sources note, this still left 00:17:04.559 --> 00:17:06.900 the ultimate decision up to the whim of the courts. 00:17:07.500 --> 00:17:09.579 There was still no easily applicable standard 00:17:09.579 --> 00:17:12.230 for review. The legal analysis still ultimately 00:17:12.230 --> 00:17:14.450 boiled down to the subjective whim of individual 00:17:14.450 --> 00:17:17.289 judges arguing over what constituted redeeming 00:17:17.289 --> 00:17:20.130 value. So we have a decade of confusion, fractured 00:17:20.130 --> 00:17:23.410 rulings, and unworkable tests. A very messy era 00:17:23.410 --> 00:17:25.809 for the First Amendment. It really was. This 00:17:25.809 --> 00:17:28.210 unsustainable environment finally culminates 00:17:28.210 --> 00:17:32.609 in a landmark breakthrough in 1973. The big turning 00:17:32.609 --> 00:17:35.609 point. Yes. The Supreme Court hears the case 00:17:35.609 --> 00:17:38.529 of Miller v. California. This is the critical 00:17:38.529 --> 00:17:40.869 moment where the court abandons the memoirs test 00:17:40.869 --> 00:17:43.990 and establishes a rigid, multi -pronged framework 00:17:43.990 --> 00:17:46.869 that actually remains the law of the land today. 00:17:47.269 --> 00:17:49.950 The Miller test. Exactly, the Miller test. Miller 00:17:49.950 --> 00:17:52.660 v. California was a watershed moment. The court 00:17:52.660 --> 00:17:55.859 recognized the inherent, dangerous ambiguity 00:17:55.859 --> 00:17:59.019 in legislating obscenity, so they purposefully 00:17:59.019 --> 00:18:01.220 structured the new criteria to strictly limit 00:18:01.220 --> 00:18:04.299 state power, while still giving local jurisdictions 00:18:04.299 --> 00:18:06.259 a functional tool. They needed something that 00:18:06.259 --> 00:18:08.599 could actually be applied in a courtroom. Yes. 00:18:09.380 --> 00:18:11.559 The Miller test dictates that for a work to be 00:18:11.559 --> 00:18:14.359 legitimately subject to state regulation, all 00:18:14.359 --> 00:18:16.619 three of its specific prongs must be satisfied. 00:18:16.779 --> 00:18:19.200 Not just one or two, all three. Let's break down 00:18:19.200 --> 00:18:21.059 the specific language of each of these prongs, 00:18:21.259 --> 00:18:24.140 starting with the first. OK. The first prong 00:18:24.140 --> 00:18:27.859 asks whether the average person applying contemporary 00:18:27.859 --> 00:18:30.460 community standards would find that the work, 00:18:30.720 --> 00:18:33.880 taken as a whole, appeals to the prurient interest. 00:18:34.319 --> 00:18:37.089 So. They retained the architectural foundation 00:18:37.089 --> 00:18:39.970 of the 1957 Roth decision here. They did. They 00:18:39.970 --> 00:18:42.529 kept the average person metric, the reliance 00:18:42.529 --> 00:18:44.750 on contemporary community standards, and the 00:18:44.750 --> 00:18:47.549 necessity of evaluating the work as a whole rather 00:18:47.549 --> 00:18:50.049 than isolating specific scenes like Hicklin did. 00:18:50.549 --> 00:18:53.650 Yes, they preserved the localized nature of the 00:18:53.650 --> 00:18:56.029 inquiry for that first step. Then they moved 00:18:56.029 --> 00:18:57.990 to criteria number two. Which is what? Whether 00:18:57.990 --> 00:19:01.519 the work depicts or describes in a patently offensive 00:19:01.519 --> 00:19:04.880 way, sexual conduct or excretory functions, as 00:19:04.880 --> 00:19:07.019 specifically defined by applicable state law. 00:19:07.339 --> 00:19:10.180 Now, that phrase right there, as specifically 00:19:10.180 --> 00:19:12.799 defined by applicable state law, that is a massive 00:19:12.799 --> 00:19:14.759 evolution. It's the anchor of the whole test. 00:19:14.960 --> 00:19:17.680 It forces a level of objectivity onto the legislative 00:19:17.680 --> 00:19:19.839 branch. The court is essentially telling state 00:19:19.839 --> 00:19:22.079 governments you can no longer pass vague laws 00:19:22.079 --> 00:19:25.059 banning immoral works. No more sweeping moral 00:19:25.059 --> 00:19:28.339 judgments. Right. If you want to prosecute obscenity, 00:19:28.779 --> 00:19:31.599 your state legislature has to write down exact, 00:19:32.099 --> 00:19:34.839 precise definitions of the physical acts or depictions 00:19:34.839 --> 00:19:37.480 that are illegal. It removes a significant amount 00:19:37.480 --> 00:19:39.579 of the arbitrary guesswork from the judicial 00:19:39.579 --> 00:19:43.319 bench. It demands legislative precision. A judge 00:19:43.319 --> 00:19:45.420 no longer has to guess what the state considers 00:19:45.420 --> 00:19:48.539 offensive. They simply consult the specific statute. 00:19:48.700 --> 00:19:51.299 It creates a concrete checklist. And finally, 00:19:51.559 --> 00:19:54.200 we reach criterion number three. The value prong. 00:19:54.259 --> 00:19:57.799 Yes. whether the work taken as a whole lacks 00:19:57.799 --> 00:20:01.130 serious literary artistic political, or scientific 00:20:01.130 --> 00:20:03.769 value. So here we see the pivot away from the 00:20:03.769 --> 00:20:07.750 unworkable 1966 memoirs test. Because memoirs 00:20:07.750 --> 00:20:09.950 required the work to be utterly without social 00:20:09.950 --> 00:20:12.950 value. Exactly. Miller lowers that bar for the 00:20:12.950 --> 00:20:15.210 state slightly, stating it must lack serious 00:20:15.210 --> 00:20:18.029 literary, artistic, political, or scientific 00:20:18.029 --> 00:20:20.089 value. The insertion of the word serious shifts 00:20:20.089 --> 00:20:22.390 the burden significantly. It does. But here's 00:20:22.390 --> 00:20:24.150 where it gets really interesting regarding the 00:20:24.150 --> 00:20:25.950 mechanics of how this test is actually applied 00:20:25.950 --> 00:20:29.299 in a courtroom. Oh, the scope dilemma. Yes. There's 00:20:29.299 --> 00:20:31.700 a deeply complex dilemma regarding jurisdiction 00:20:31.700 --> 00:20:34.480 and geography baked right into the Miller test. 00:20:35.099 --> 00:20:37.519 This is a critical nuance regarding the scope 00:20:37.519 --> 00:20:39.680 of the legal analysis that the source material 00:20:39.680 --> 00:20:42.299 highlights. Let's talk about the contrast between 00:20:42.299 --> 00:20:46.059 PROM 1 and PROM 3. Right. Criterion 1 assessing 00:20:46.059 --> 00:20:48.900 the appeal to prurient interest is explicitly 00:20:48.900 --> 00:20:51.599 localized. It's based on the specific town or 00:20:51.599 --> 00:20:54.400 city standards? It relies entirely on the contemporary 00:20:54.400 --> 00:20:57.279 standards of a specific community. The standard 00:20:57.279 --> 00:21:00.059 for what appeals to a Purian interest in a rural, 00:21:00.240 --> 00:21:02.839 deeply religious county might be drastically 00:21:02.839 --> 00:21:05.440 different from the standard in a major metropolitan 00:21:05.440 --> 00:21:07.920 arts district. That makes sense. It aligns with 00:21:07.920 --> 00:21:10.880 the idea of community self -determination. But 00:21:10.880 --> 00:21:13.400 criterion three, determining whether a work lacks 00:21:13.400 --> 00:21:16.720 serious literary or artistic value, is completely 00:21:16.720 --> 00:21:19.200 divorced from local standards. It is a staggering 00:21:19.200 --> 00:21:21.180 jurisdictional contrast. Because the standard 00:21:21.180 --> 00:21:23.460 for the third prong is judged by the metric of 00:21:23.460 --> 00:21:25.720 a reasonable person of the United States as a 00:21:25.720 --> 00:21:27.819 whole. Think about the cognitive gymnastics this 00:21:27.819 --> 00:21:30.220 requires. It's absurd when you really break it 00:21:30.220 --> 00:21:33.259 down. How do you construct the profile of a single 00:21:33.259 --> 00:21:37.440 reasonable person across an entire wildly diverse 00:21:37.440 --> 00:21:39.670 nation of hundreds of millions of people? I mean, 00:21:39.670 --> 00:21:42.009 how do you define the standard of a reasonable 00:21:42.009 --> 00:21:44.750 person across the entire nation compared to a 00:21:44.750 --> 00:21:47.269 single local community? You really can't. The 00:21:47.269 --> 00:21:49.390 national standard was implemented to protect 00:21:49.390 --> 00:21:52.230 marginalized art, ensuring that a brilliant but 00:21:52.230 --> 00:21:55.750 controversial novel isn't banned nationwide just 00:21:55.750 --> 00:21:58.470 because one highly conservative town finds it 00:21:58.470 --> 00:22:01.009 offensive. Which is a noble goal. It is, but 00:22:01.009 --> 00:22:03.789 it makes the third criterion vastly more ambiguous 00:22:03.789 --> 00:22:06.630 than the first two. It forces an almost impossible 00:22:06.630 --> 00:22:09.710 cognitive dissonance on a local jury. Imagine 00:22:09.710 --> 00:22:12.650 sitting in a jury box. I'm picturing it. The 00:22:12.650 --> 00:22:15.390 judge instructs you to look at prong one and 00:22:15.390 --> 00:22:18.490 use the specific localized moral compass of your 00:22:18.490 --> 00:22:21.170 specific town to determine if a movie is offensive. 00:22:21.450 --> 00:22:23.349 Got it. Ten minutes later the judge instructs 00:22:23.349 --> 00:22:26.069 you to look at prong three entirely discard your 00:22:26.069 --> 00:22:28.869 local moral compass and somehow channel the artistic 00:22:28.869 --> 00:22:32.269 sensibilities of a hypothetical nationally representative 00:22:32.269 --> 00:22:34.509 reasonable person. Right be everyone and no one 00:22:34.509 --> 00:22:38.480 all at once. Exactly. How is a human brain supposed 00:22:38.480 --> 00:22:41.819 to accurately execute that pivot? It's an incredibly 00:22:41.819 --> 00:22:45.400 tall order. And that dissonance is exactly what 00:22:45.400 --> 00:22:48.779 makes the third prong of the Miller test so heavily 00:22:48.779 --> 00:22:52.000 litigated. You are asking laypeople to operate 00:22:52.000 --> 00:22:55.859 as both intensely localized citizens and omniscient 00:22:55.859 --> 00:22:58.799 national art critics simultaneously. It highlights 00:22:58.799 --> 00:23:02.180 the persistent, inescapable ambiguity of obscenity 00:23:02.180 --> 00:23:04.789 law. Even after decades of refinement, ending 00:23:04.789 --> 00:23:07.250 with the highly structured three -part Miller 00:23:07.250 --> 00:23:09.930 test, the legal system is still fundamentally 00:23:09.930 --> 00:23:13.029 resting its weight on abstract, undefinable concepts 00:23:13.029 --> 00:23:15.890 like the national reasonable person. Which, when 00:23:15.890 --> 00:23:18.069 you strip away the Latin and the multi -part 00:23:18.069 --> 00:23:20.930 framework, still feels a lot like a highly formalized, 00:23:21.170 --> 00:23:22.849 bureaucratically dressed -up version of I know 00:23:22.849 --> 00:23:25.029 it when I see it. It really does. It's just Stuart's 00:23:25.029 --> 00:23:27.589 gut feeling wearing a nicer suit. That's entirely 00:23:27.589 --> 00:23:30.009 accurate. We spent a lot of time dissecting the 00:23:30.009 --> 00:23:31.869 legal mechanics here, but I want to pivot to 00:23:31.869 --> 00:23:34.390 the profoundly human element of this history. 00:23:34.569 --> 00:23:36.910 Yes, the personal toll of all this. We need to 00:23:36.910 --> 00:23:40.069 look at Potter Stewart himself. He coined this 00:23:40.069 --> 00:23:43.210 phrase in 1964. He lived through the subsequent 00:23:43.210 --> 00:23:46.529 decade of lower court chaos. He watched the Supreme 00:23:46.529 --> 00:23:49.369 Court scramble with memoirs and then finally 00:23:49.369 --> 00:23:51.869 synthesize the Miller test. He had a front row 00:23:51.869 --> 00:23:54.680 seat to the fall out of his own words. By 1981, 00:23:55.079 --> 00:23:57.660 his perspective on his own iconic concurrence 00:23:57.660 --> 00:24:00.099 had shifted dramatically. Here's where it gets 00:24:00.099 --> 00:24:02.619 really interesting. There is a reflection from 00:24:02.619 --> 00:24:05.680 Stewart in 1981 that is striking in its self 00:24:05.680 --> 00:24:08.440 awareness. The weight of legacy is a heavy thing 00:24:08.440 --> 00:24:11.160 for anyone, but particularly for a jurist who 00:24:11.160 --> 00:24:13.720 dedicated his life to the careful calibration 00:24:13.720 --> 00:24:17.160 of the law. His confession in 1981 was remarkably 00:24:17.160 --> 00:24:19.240 candid. I have the quote right here. Go ahead. 00:24:19.519 --> 00:24:21.960 He stated. In a way, I regret having said what 00:24:21.960 --> 00:24:23.799 I said about obscenity that's going to be on 00:24:23.799 --> 00:24:26.339 my tombstone. When I remember all of the other 00:24:26.339 --> 00:24:28.319 solid words I've written, I regret a little bit 00:24:28.319 --> 00:24:30.960 that if I'll be remembered at all, I'll be remembered 00:24:30.960 --> 00:24:33.079 for that particular phrase. It's a profound, 00:24:33.200 --> 00:24:36.059 almost tragic irony. It truly is. You dedicate 00:24:36.059 --> 00:24:38.680 your entire professional existence to the grueling 00:24:38.680 --> 00:24:41.140 study of jurisprudence. Decades of work. You 00:24:41.140 --> 00:24:43.980 ascend to the highest court in the nation. You 00:24:43.980 --> 00:24:46.900 author hundreds of complex, deeply researched, 00:24:47.180 --> 00:24:50.059 heavily reasoned legal opinions that actively 00:24:50.059 --> 00:24:54.059 shape the architecture of American society. The 00:24:54.059 --> 00:24:56.980 cultural zeitgeist largely ignores the mountains 00:24:56.980 --> 00:24:59.940 of rigorous intellectual labor and reduces your 00:24:59.940 --> 00:25:03.019 entire legacy to a catchy, slightly colloquial 00:25:03.019 --> 00:25:05.660 sound bite. It's the equivalent of a brilliant 00:25:05.660 --> 00:25:07.920 symphony conductor only being remembered because 00:25:07.920 --> 00:25:10.619 they once sneezed loudly during a performance. 00:25:10.700 --> 00:25:13.859 That is a harsh but very fair comparison. And 00:25:13.859 --> 00:25:15.980 it speaks volumes about what actually resonates 00:25:15.980 --> 00:25:18.299 with human psychology. Right. We don't generally 00:25:18.299 --> 00:25:20.940 memorize 50 page legal treatises because they 00:25:20.940 --> 00:25:23.880 are dense, technical and require immense cognitive 00:25:23.880 --> 00:25:26.319 load to parse. We remember, I know it when I 00:25:26.319 --> 00:25:29.000 see it because it is instantly universally relatable. 00:25:29.240 --> 00:25:31.900 Exactly. It perfectly captures a cognitive experience 00:25:31.900 --> 00:25:34.880 we all share. And this brings us to the deeper 00:25:34.880 --> 00:25:37.960 epistemological layer of our deep dive. Stuart's 00:25:37.960 --> 00:25:40.200 personal regret regarding his phrasing opens 00:25:40.200 --> 00:25:43.299 the door to a much broader philosophical conversation 00:25:43.299 --> 00:25:45.680 about how we acquire and categorize knowledge. 00:25:45.940 --> 00:25:48.480 Epistome. Exactly. The philosophical study of 00:25:48.480 --> 00:25:50.839 the nature, origin, and limits of human knowledge. 00:25:51.420 --> 00:25:54.099 There are several concepts in philosophy mentioned 00:25:54.099 --> 00:25:56.440 in our sources that are directly intertwined 00:25:56.440 --> 00:25:58.859 with Stuart's struggle, starting with what is 00:25:58.859 --> 00:26:01.680 commonly known as the duck test. Ah, the duck 00:26:01.680 --> 00:26:05.359 test. It's a classic colloquial example of abductive 00:26:05.359 --> 00:26:08.000 reasoning. The premise is simple, right? If it 00:26:08.000 --> 00:26:10.619 looks like a duck, swings like a duck, and quacks 00:26:10.619 --> 00:26:13.339 like a duck, then it probably is a duck. It is 00:26:13.339 --> 00:26:15.599 a method of classification that relies entirely 00:26:15.599 --> 00:26:18.380 on observable evidence and pattern recognition, 00:26:18.920 --> 00:26:22.000 rather than strict underlying genetic or biological 00:26:22.000 --> 00:26:24.140 definitions. You don't need its DNA sequence 00:26:24.140 --> 00:26:27.140 to know it's a duck. Exactly. Stewart was effectively 00:26:27.140 --> 00:26:28.900 applying the duck tis to the First Amendment. 00:26:29.339 --> 00:26:32.380 He couldn't articulate the legal DNA of hardcore 00:26:32.380 --> 00:26:35.079 pornography. But he deeply trusted his own cognitive 00:26:35.079 --> 00:26:37.599 ability to recognize its behavioral profile. 00:26:38.230 --> 00:26:40.690 It's quack, so to speak. I know it when I see 00:26:40.690 --> 00:26:43.650 it is the ultimate distilled version of the duck 00:26:43.650 --> 00:26:46.769 test But the philosophy of mind takes this even 00:26:46.769 --> 00:26:49.910 further with the concept of qualia qualia This 00:26:49.910 --> 00:26:52.430 is where the intersection of law and human consciousness 00:26:52.430 --> 00:26:55.890 gets incredibly complex Explain qualia for us 00:26:55.890 --> 00:26:58.549 qualia is a foundational concept in the philosophy 00:26:58.549 --> 00:27:01.460 of mind It refers directly to the individual 00:27:01.460 --> 00:27:03.819 subjective feeling of a conscious experience. 00:27:04.119 --> 00:27:06.859 Like the examples we used earlier. Yes. The internal 00:27:06.859 --> 00:27:09.279 sensation of a headache, the specific taste of 00:27:09.279 --> 00:27:11.619 a strawberry, or the visual experience of the 00:27:11.619 --> 00:27:15.160 color blue. That highly individualized internal 00:27:15.160 --> 00:27:18.740 sensation is qualia. And it's inherently private. 00:27:19.000 --> 00:27:21.799 By its very definition, qualia is ineffable. 00:27:22.009 --> 00:27:25.430 It cannot be fully or accurately communicated 00:27:25.430 --> 00:27:27.950 to another human being through the medium of 00:27:27.950 --> 00:27:30.269 language. You can explain the chemical composition 00:27:30.269 --> 00:27:32.829 of a strawberry, and you can map the neural pathways 00:27:32.829 --> 00:27:35.470 that fire when you eat it, but you cannot transfer 00:27:35.470 --> 00:27:37.690 the actual experience of the taste to someone 00:27:37.690 --> 00:27:40.170 else. So when Justice Stewart sat in the screening 00:27:40.170 --> 00:27:42.609 room watching the lovers, he was experiencing 00:27:42.609 --> 00:27:45.069 legal qualia. That makes perfect sense. He was 00:27:45.069 --> 00:27:47.910 having a subjective, internal, conscious reaction 00:27:47.910 --> 00:27:51.269 to the images on the screen. Yes. That reaction 00:27:51.269 --> 00:27:54.769 was so visceral and so deeply embedded in his 00:27:54.769 --> 00:27:58.309 own internal architecture that he realized any 00:27:58.309 --> 00:28:01.089 attempt to translate that feeling into an objective, 00:28:01.630 --> 00:28:04.490 universally applicable legal test was mathematically 00:28:04.490 --> 00:28:07.490 impossible. He ran head first into the hard problem 00:28:07.490 --> 00:28:10.029 of consciousness while trying to draft a legal 00:28:10.029 --> 00:28:12.710 document. He really did. And this ties directly 00:28:12.710 --> 00:28:15.029 into another epistemological concept our sources 00:28:15.029 --> 00:28:17.789 bring up. tacit knowledge. Tacit knowledge is 00:28:17.789 --> 00:28:19.910 fascinating because it explains so much of how 00:28:19.910 --> 00:28:22.210 we navigate the world. It's the idea that you 00:28:22.210 --> 00:28:24.410 can possess a complex skill or understanding 00:28:24.410 --> 00:28:27.049 perfectly, but the second you try to explicitly 00:28:27.049 --> 00:28:30.089 codify it or write it down, you fail. The classic 00:28:30.089 --> 00:28:32.309 analogy is riding a bicycle, right? Exactly. 00:28:32.750 --> 00:28:34.710 Michael Polanyi, the philosopher who heavily 00:28:34.710 --> 00:28:37.369 developed the concept of tacit knowledge, argued 00:28:37.369 --> 00:28:39.609 that we can know more than we can tell. That's 00:28:39.609 --> 00:28:41.369 a beautiful phrase. We can know more than we 00:28:41.369 --> 00:28:42.990 can tell. If you know how to ride a bicycle. 00:28:43.289 --> 00:28:46.329 You understand the precise, dynamic balance of 00:28:46.329 --> 00:28:49.029 gravity, momentum, and physical posture required 00:28:49.029 --> 00:28:51.430 to stay upright. But if you were tasked with 00:28:51.430 --> 00:28:54.029 writing a comprehensive, step -by -step manual 00:28:54.029 --> 00:28:56.150 that could successfully teach someone who had 00:28:56.150 --> 00:28:59.009 never seen a bicycle how to perfectly ride one 00:28:59.009 --> 00:29:02.279 on their first attempt, you would fail. The knowledge 00:29:02.279 --> 00:29:05.160 is tacit. It resides in your muscle memory and 00:29:05.160 --> 00:29:08.059 spatial awareness, not in your linguistic capability. 00:29:08.339 --> 00:29:11.079 Similarly, recognizing a family member's face 00:29:11.079 --> 00:29:14.019 in a crowded room is tacit knowledge. That's 00:29:14.019 --> 00:29:16.160 a great example. You don't consciously measure 00:29:16.160 --> 00:29:18.119 the distance between their eyes or the angle 00:29:18.119 --> 00:29:21.539 of their jaw. Your brain simply synthesizes the 00:29:21.539 --> 00:29:24.079 pattern instantly. You know it's them, but you 00:29:24.079 --> 00:29:26.640 cannot explain the algorithmic process your brain 00:29:26.640 --> 00:29:28.980 used to reach that conclusion. This perfectly 00:29:28.980 --> 00:29:31.480 frames Stewart's Dilemma. his understanding of 00:29:31.480 --> 00:29:33.900 the boundary between art and hardcore pornography. 00:29:34.140 --> 00:29:37.319 was entirely tacit. He had internalized a complex 00:29:37.319 --> 00:29:39.440 boundary based on his lifetime of education, 00:29:39.859 --> 00:29:42.240 his cultural upbringing, and his societal context. 00:29:42.339 --> 00:29:44.559 His internal database was highly calibrated. 00:29:44.700 --> 00:29:46.619 He knew exactly where the line was in his own 00:29:46.619 --> 00:29:49.119 mind. But the moment the Supreme Court required 00:29:49.119 --> 00:29:51.460 him to write the explicit instruction manual 00:29:51.460 --> 00:29:53.440 for the rest of the American judicial system, 00:29:53.839 --> 00:29:56.359 he realized it was a fool's errand. The tragedy 00:29:56.359 --> 00:29:59.220 of his concurrence is that he accidentally exposed 00:29:59.220 --> 00:30:02.440 a terrifying truth. What's that? A massive portion 00:30:02.440 --> 00:30:06.079 of our rigid legal and societal framework actually 00:30:06.079 --> 00:30:08.680 relies on tacit knowledge, which is inherently 00:30:08.680 --> 00:30:11.180 unstable when subjected to the demands of objective 00:30:11.180 --> 00:30:13.700 jurisprudence. That is unsettling, honestly. 00:30:13.940 --> 00:30:16.599 But what is truly remarkable is that this specific 00:30:16.599 --> 00:30:20.220 linguistic and epistemological wall is not isolated 00:30:20.220 --> 00:30:22.779 to the messy world of legal obscenity. No, it 00:30:22.779 --> 00:30:25.670 pops up everywhere. Our sources point out a delightful, 00:30:25.670 --> 00:30:28.009 beautiful piece of historical symmetry regarding 00:30:28.009 --> 00:30:31.529 this phrase. The math connection. Yes. In 1974, 00:30:31.769 --> 00:30:34.390 a prominent mathematician named Andre Weill was 00:30:34.390 --> 00:30:36.369 attempting to define the boundaries of number 00:30:36.369 --> 00:30:39.500 theory. In his writings, Weill utilized a phrase 00:30:39.500 --> 00:30:42.359 strikingly similar to Stuart's to describe how 00:30:42.359 --> 00:30:44.839 mathematicians identify theories within that 00:30:44.839 --> 00:30:47.299 specific field. And Weill himself was actually 00:30:47.299 --> 00:30:50.079 paraphrasing the renowned poet A. E. Hausmann, 00:30:50.200 --> 00:30:52.519 who had utilized a very similar concept decades 00:30:52.519 --> 00:30:55.160 earlier when grappling with the impossible task 00:30:55.160 --> 00:30:57.519 of defining the essence of poetry. The symmetry 00:30:57.519 --> 00:31:00.019 there is just incredible. Mathematics is widely 00:31:00.019 --> 00:31:02.440 considered the most rigorous, objective, and 00:31:02.440 --> 00:31:04.819 purely logical language humans have ever developed. 00:31:05.119 --> 00:31:07.779 It is the language of universe constants. While 00:31:07.779 --> 00:31:10.900 poetry, conversely, is arguably the most fluid, 00:31:11.319 --> 00:31:13.519 subjective, and emotionally driven language we 00:31:13.519 --> 00:31:17.000 possess, it is the language of pure qualia. And 00:31:17.000 --> 00:31:19.619 yet both the brilliant mathematician and the 00:31:19.619 --> 00:31:21.660 celebrated poet, just like the Supreme Court 00:31:21.660 --> 00:31:24.759 justice, ultimately reach a frontier where their 00:31:24.759 --> 00:31:27.779 respective lexicons fail them. Whether you are 00:31:27.779 --> 00:31:31.000 attempting to categorize prime numbers, capture 00:31:31.000 --> 00:31:34.019 the emotional resonance of a stanza, or legally 00:31:34.019 --> 00:31:37.339 define an obscene act, human beings will constantly, 00:31:37.559 --> 00:31:40.259 inevitably run face -first into the invisible 00:31:40.259 --> 00:31:42.880 walls of language. We have covered immense ground 00:31:42.880 --> 00:31:44.960 in this deep dive. We really have. We traced 00:31:44.960 --> 00:31:48.160 the strict moralistic policing of the 1868 English 00:31:48.160 --> 00:31:50.380 common law, which sought to protect the most 00:31:50.380 --> 00:31:52.420 susceptible minds at the expense of everyone 00:31:52.420 --> 00:31:54.680 else. We watched the legal system attempt to 00:31:54.680 --> 00:31:57.859 pivot in the 1950s. replacing moral panic with 00:31:57.859 --> 00:32:00.160 the confusing metric of the average person. We 00:32:00.160 --> 00:32:02.539 explored how a French film in an Ohio theater 00:32:02.539 --> 00:32:05.079 forced a Supreme Court justice to publicly admit 00:32:05.079 --> 00:32:07.920 the limitations of his own profession. And we 00:32:07.920 --> 00:32:11.319 unpacked how that moment of candor led to a decade 00:32:11.319 --> 00:32:14.660 of judicial chaos, ultimately resulting in the 00:32:14.660 --> 00:32:17.779 highly structured dual -jurisdiction complexity 00:32:17.779 --> 00:32:20.650 of the Miller test we rely on today. But for 00:32:20.650 --> 00:32:23.529 you, listening to this, the history of obscenity 00:32:23.529 --> 00:32:26.210 law reveals something much deeper about the systems 00:32:26.210 --> 00:32:29.069 we live in. It does. We rely on the law to provide 00:32:29.069 --> 00:32:32.089 us with objective, cold, hard truth. We look 00:32:32.089 --> 00:32:34.109 to the Supreme Court to serve as the ultimate 00:32:34.109 --> 00:32:36.769 rational arbiters of our reality. But the history 00:32:36.769 --> 00:32:38.710 of the First Amendment shows us that the foundation 00:32:38.710 --> 00:32:42.289 of these immense, powerful institutions is often 00:32:42.289 --> 00:32:45.730 rooted in highly subjective, ineffable human 00:32:45.730 --> 00:32:49.009 experience. It forces us to ask a deeply uncomfortable 00:32:49.009 --> 00:32:51.589 question. how much of our society is actually 00:32:51.589 --> 00:32:54.150 built on unshakable logical rules and how much 00:32:54.150 --> 00:32:56.009 of it is simply built on invisible assumptions 00:32:56.009 --> 00:32:57.809 we can't explain but just collectively agree 00:32:57.809 --> 00:33:00.049 upon. And that leaves us with a critical final 00:33:00.049 --> 00:33:02.650 puzzle to mull over. Let's hear it. If our most 00:33:02.650 --> 00:33:05.630 fundamental constitutional rights and the very 00:33:05.630 --> 00:33:07.990 boundaries of our freedom of expression ultimately 00:33:07.990 --> 00:33:10.849 rest upon the limits of language, the incommunicability 00:33:10.849 --> 00:33:13.809 of qualia and the silent database of tacit knowledge, 00:33:14.710 --> 00:33:17.309 What other major structures in our daily lives 00:33:17.309 --> 00:33:20.529 are functioning the exact same way? Oh wow. Examine 00:33:20.529 --> 00:33:23.450 the rules of your workplace, the behavioral expectations 00:33:23.450 --> 00:33:25.670 of your community, or the boundaries within your 00:33:25.670 --> 00:33:28.390 personal relationships. How many of the rigid, 00:33:28.869 --> 00:33:31.690 supposedly objective rules you navigate every 00:33:31.690 --> 00:33:34.829 single day are secretly just relying on the silent 00:33:34.829 --> 00:33:37.029 unwritten assumption of, I'll know it when I 00:33:37.029 --> 00:33:39.380 see it. That is a deeply provocative thought 00:33:39.380 --> 00:33:41.359 to take with you into your day. Thank you so 00:33:41.359 --> 00:33:43.299 much for joining us on this deep dive into the 00:33:43.299 --> 00:33:45.700 limits of language, the First Amendment, and 00:33:45.700 --> 00:33:47.440 the messy reality of the law. We'll catch you 00:33:47.440 --> 00:33:47.980 on the next one.