Have you ever tried to define a concept that
feels completely blindingly obvious in your head?
But the absolute second you try to put it into
words, it just disintegrates. Oh, constantly.
It's like trying to hold on to water. Right.
Like, imagine trying to define the exact geographical
or, I guess, hydrological boundary between a
pond and a lake. Right. Yeah. You know a lake
when you see one. Right. You know a pond. Yeah.
But locating the precise linguistic line where
one officially becomes the other, it's just maddening.
Because what is it? Is it the depth? Exactly.
Is it the surface area? The presence of a localized
current, maybe? Right. Or think about something
even more fundamental, like trying to explain
to someone what the color blue actually looks
like. Oh, that's a classic philosophical trap.
It really is. And I mean, not providing a list
of things that are blue and not describing, you
know, the scientific wavelength of light, but
conveying the actual visual internal experience
of the color itself. You can't. You ultimately
just can't do it. No, you are forced to just
point at the sky and say, that. That right there
is blue. Yeah, we encounter these hard limits
of language all the time. We do, and usually
it's just a quirk of the human condition. But
today, we are exploring what happens when the
highest court in the United States runs face
-first into that exact same problem. And it is
a spectacular collision. It really is. We are
looking at a moment when the foundational law
of the land, specifically the First Amendment's
protection of free speech, collided with the
absolute boundaries of our vocabulary. It's a
fascinating intersection of law and really human
perception. Definitely. Our deep dive today traces
the historical and philosophical journey of a
single legendary phrase. I know it when I see
it. Such an iconic line. So iconic. We are going
to unpack the chaotic history of U .S. obscenity
law that led to a Supreme Court justice effectively
throwing his hands up in defeat and the ongoing
incredibly messy struggle to legally regulate
human expression based on our sources today.
And as we lay the groundwork for this, it is
crucial to establish our analytical framework
right up front. Yes, very important. We are stepping
into a realm that is historically fraught with
intense cultural and political debate. To say
the least. Right. So our objective here is strictly
analytical. We're not examining the morality
of the material these court cases center around,
nor are we taking a stance on the broader cultural
wars over censorship. We are impartially examining
a structural philosophical problem. Exactly.
What's fascinating here is how the American legal
system An institution entirely predicated on
the necessity of strict, objective, and universally
applicable definitions was forced to rub in with
the fact that it occasionally has to rely on
pure, subjective human instinct. Yeah, it's like
trying to build a house out of feelings. That
is a great way to put it. We are looking at this
through the lens of epistemology just as much
as jurisprudence. This is fundamentally a story
about how the law struggles when it is asked
to regulate the unutterable. OK, let's unpack
this by heading straight into the catalyst, the
phrase heard around the court. Let's do it. The
year is 1964, and the case is Jocobeles v. Ohio.
A landmark moment. The controversy at the heart
of this Supreme Court showdown didn't revolve
around, you know, a piece of illicit underground
material, but rather a French motion picture.
An arthouse film, really. Exactly. The film was
called The Lovers, directed by Louis Malle. It
had already won the special jury prize at the
Venice Film Festival. So it had serious artistic
credentials. It did. But when a theater manager
named Nico Jacobellis screened it in Cleveland
Heights, Ohio, the local authorities arrested
and convicted him for possessing and exhibiting
an obscene film. Which is wild to think about
today, a theater manager being hauled off to
jail for showing a Venice Film Festival winner.
It really highlights the tension of the era.
And the conviction of Jaco Bella sets up a perfect
constitutional stress test. It really does. Yeah.
Because when the case finally reaches the Supreme
Court, the justices are resented with what amounts
to a threshold test. Right. They have to make
a foundational binary determination before any
further legal theory can be applied. Is the levers
protected speech under the First Amendment, or
does it cross a line into obscenity? Which would
strip it of constitutional protection. Exactly,
thereby allowing the state of Ohio to legally
ban it and imprison the theater manager. And
this is where Justice Potter Stewart steps into
the historical spotlight. He is tasked, alongside
his colleagues, with evaluating this boundary.
And he takes a very unique approach. He does.
The court ultimately overturned Jacobellis' conviction,
ruling that the film was protected. But Stuart
didn't just sign on to the majority opinion and
call it a day. No, he felt the need to speak
for himself. He wrote his own short concurrence.
And rather than drafting a dense legal doctrine
outlining exactly where the boundary of First
Amendment protection lies, he writes something
radically different. Something much more human.
I want to read his exact phrasing here, because
the candor is just striking. He wrote, I shall
not today attempt further to define the kinds
of material I understand to be embraced within
that shorthand description, quote, hardcore pornography,
unquote. 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 it is a remarkable admission from
a jurist of that caliber. Truly to just say,
I can't define it, but my gut knows. But before
we analyze the fallout of that admission, we
need to clarify a significant historical misconception
regarding the text itself that our sources point
out. Oh, right, the terminology he used. Yes.
In popular culture, and even in some legal shorthand,
I know it when I see it, is frequently cited
as Justice Stewart's official test for obscenity.
Which is actually incorrect. It is. A close reading
of his concurrence reveals he deliberately avoided
using the word obscenity in that specific passage.
He was referring exclusively to the shorthand
description of hardcore pornography. That distinction
completely shifts the context of what he was
trying to achieve. It does. Obscenity was the
broader, heavily debated legal category the court
was wrestling with. But Stewart was essentially
arguing that the category was too broad. Precisely.
He was attempting to carve out a microscopic
subcategory hardcore pornography as the only
conceivable type of expression that he felt could
legitimately be stripped of First Amendment protection.
He was drawing a much tighter circle than many
of his peers. Much tighter. But the problem wasn't
his intent. The problem was his methodology.
Because it's completely subjective. Just imagine
the audacity of this moment for a second. Picture
a Supreme Court justice essentially throwing
their hands up in the air and saying, I can't
define the law, but my gut will tell me if you
broke it. It's staggering. Yeah. And the reaction
from the legal community perfectly encapsulated
the tension this ruling created. It really split
the room, didn't it? Completely. On one side
of the aisle, you had a faction of legal scholars
who lauded Stewart's standard as realistic and
gallant. Gallant is an interesting word for it.
They viewed it as a necessary injection of realism
into a court that often hid behind opaque circular
legal tests. They appreciated his willingness
to admit that some concepts simply defy strict
codification. It's the moment someone finally
points out the emperor has no clothes. Exactly.
He acknowledged that the justices were already
just using their own subjective judgment anyway,
and he simply chose to say the quiet part out
loud. But the criticism on the other side of
that coin was intense. And frankly, completely
warranted. Oh, absolutely. The criticism was
foundational to the concept of a functional justice
system. Opponents of Stewart's concurrence argued
that it codified individualistic arbitrariness.
Which is a terrifying phrase when you're talking
about the law. It really is. It raises an important
question regarding the rule of law. The entire
premise of a legal system is predictability and
notice. Right, you have to know what the rules
are. A citizen must be able to understand what
the law is before they act so they can conform
their behavior to it. If the boundary between
protected speech and a prison sentence only exists
as an unarticulated feeling inside the mind of
one specific Supreme Court justice. How can a
theater owner in Ohio possibly know if they are
breaking the law? They can't. It transforms the
law from a public rule into a private intuition.
You're essentially playing a high -stakes game
where the referee refuses to publish the rulebook
but still retains the power to eject you from
the game. And that concept of individualistic
arbitrariness is antithetical to the idea of
blind justice. So this naturally leads to the
question of why? Why would a highly educated,
deeply experienced justice like Potter Stewart
abandon strict legal definitions in 1964? To
understand his frustration, we really have to
look backward. We do. We need to examine the
history of obscenity law leading up to Jacobellis,
a history that was unusually inconsistent and
heavily reliant on moral panic. Yes. To understand
Stewart's predicament, we have to establish the
legal baseline the American courts inherited.
The English common law roots. Exactly. That requires
rewinding to 1868 to English common law and a
case known as R .V. Hicklin. The standard established
in Hicklin cast a massive restrictive shadow
over literature and art for nearly a century.
It's hard to overstate how broad this was. It
really is. The Hicklin test articulated that
material could be deemed obscene if it possessed
the tendency to, quote, deprave and corrupt those
whose minds are open to such immoral influences.
Let's really look at the mechanics of that phrasing.
Deprave and corrupt those whose minds are open
to such immoral influences. It is incredibly
sweeping. It completely removes the context of
the work itself and places the entire legal burden
on the hypothetical reaction of society's most
vulnerable hypothetical person. That is the defining
flaw of the Hicklin rule. It didn't evaluate
a book or a piece of art based on its impact
on an average adult. No, it looked for the weakest
link. It effectively meant that if a judge believed
a specific passage in a novel might negatively
influence a highly susceptible person, perhaps
a child, or someone the court deemed morally
fragile, the entire work could be suppressed
for the entire population. That is wild. It reduced
the reading material of the adult public to a
standard appropriate only for the nursery. That's
exactly what it did. Furthermore, under Hicklin,
courts didn't even have to look at the work as
a whole. A single isolated passage stripped of
all surrounding context could condemn a 500 -page
book. Which explains why so many classic works
of literature found themselves tied up in court
for decades under this standard. James Choices
Ulysses is probably the most famous example of
that. Right. Banned because of a few passages.
We operated under the heavy hand of Hicklin for
a remarkably long time. The major shift doesn't
occur until 1957. With the Supreme Court case,
Roth v. United States. Yes, which also folded
in reaffirmations from an earlier 1913 case,
United States v. Kennerly. In Roth, the Supreme
Court recognizes that the Hicklin standard is
just incompatible with modern First Amendment
jurisprudence. They realize it was far too restrictive.
Exactly. And they attempt to construct a more
rigorous test. They determine that obscenity
is material where the dominant theme taken as
a whole appeals to the prurient interest. That
phrasing is key. It is. And crucially, they dictate
that it must be judged by the average person
applying contemporary community standards. The
Roth decision represents a monumental pivot in
American law. Because it finally ditches Hicklin.
By mandating that a work must be evaluated by
its dominant theme taken as a whole, the court
finally dismantled the Hicklin practice of banning
a book based on a single, isolated paragraph.
You actually have to read the whole book now.
Right. They also deliberately replaced the most
susceptible person standard with the average
person. Which makes much more sense. It does.
However, the introduction of the phrase appeals
to the prurient interest. created entirely new
complications. Because what does prurient actually
mean in practice? Exactly. The court was trying
to delineate between standard, acceptable expressions
of human sexuality and material that encouraged
a morbid, excessive, or utterly degrading obsession
with sex. But they merely swapped one set of
deeply subjective variables for another. They
did. They tasked local judges and juries with
defining the average person and determining the
contemporary community standards. Which varies
wildly from place to place. And this brings out
a massive philosophical friction in the decision.
The justices in Roth were writing during an era
where they were actively expanding First Amendment
protections in other areas. Yes, civil rights
speech, political speech. In the very text of
the decision, they acknowledge that All ideas
having even the slightest redeeming social importance
possess the full protection of constitutional
guarantees. That is a sweeping defense of free
expression. It is a massive field. Yet they simultaneously
ruled that obscenity is utterly without redeeming
social importance and therefore falls completely
outside the First Amendment. If we connect this
to the bigger picture, the court in Roth essentially
created a constitutional paradox. How so? They
affirmed that all ideas with slight social importance
are protected, but then handed the power to determine
what constitutes social importance and prurient
interest down to local communities based on contemporary
standards. Oh, I see. They allowed localized
public sensibility to act as a veto over individual
First Amendment rights. Because what is deeply
offensive in one county might be completely acceptable
in the next. Exactly. Meaning a federal constitutional
right suddenly varied. depending on your zip
code. And that brings us full circle to Potter
Stewart in 1964. Right back to Jacob Ellis. When
Stewart looked at the landscape created by the
Roth decision, he didn't see a well -functioning
legal standard. He saw local censorship boards
running amok. He saw the flaw in relying on community
standards to protect a national right. Yes. His
famous I know it when I see it concurrence wasn't
a flippant disregard for the law. It was a desperate
attempt to severely narrow the scope of Roth.
Stewart recognized that contemporary community
standards was too broad a net. He wanted to establish
a baseline where virtually all speech, regardless
of how offensive a local community found it,
retained constitutional protection. He was trying
to protect speech. He was. He believed the only
material that the state had a compelling interest
to suppress was the absolute undeniable extreme,
what he termed hardcore pornography. He was trying
to build an impenetrable fortress around the
First Amendment. But because he couldn't legally
define the one exception to the rule, he ended
up building the gate to that fortress out of
completely invisible material. That is a brilliant
analogy. He wanted to protect speech, but the
practical reality of an invisible legal standard
is chaos. And the chaos was immediate and profound.
So what does this all mean for a local judge
trying to apply the law after Jacob Ellis? Post
Jacob Ellis, the lower courts were left without
a functional compass. They were in the dark.
Completely. When a local magistrate was presented
with a controversial publication, they could
no longer reliably apply the Roth standard because
the Supreme Court had fractured on how to interpret
it. And they certainly couldn't apply Stewart's
standard. No, because Potter Stewart knows it
when he sees it is fundamentally useless to anyone
who isn't Potter Stewart. Right. You can't just
call him up and ask him to watch every movie
in the country. Exactly. So recognizing that
they had inadvertently broken the system, the
Supreme Court attempted a rapid fix just two
years later in 1966. With a case called Memoirs
v. Massachusetts. The Memoirs case. They tried
to codify a modified version of the Roth standard.
aiming for a test that was far more protective
of speech. They really tried to set the bar higher.
Under memoirs, the court stated that for a work
to be deemed obscene, it had to meet three specific
criteria. One, it must be patently offensive.
Two, it must appeal to prurient interest. And
three, it must be utterly without redeeming social
value. That third prong, utterly without redeeming
social value, was a massive hurdle for the state
to overcome. Utterly without is a very strong
absolute. It essentially required prosecutors
to prove a negative. If a defense attorney could
demonstrate that a novel contained even a microscopic
fraction of literary, political, or historical
value, the work was shielded from censorship.
Just a tiny drop of value saves the whole thing.
Exactly. While this was highly protective of
publishers and authors, it proved practically
unworkable in the courts. Prosecutors found it
nearly impossible to secure convictions. Because
you can argue anything has some value to someone.
Right. And as our sources note, this still left
the ultimate decision up to the whim of the courts.
There was still no easily applicable standard
for review. The legal analysis still ultimately
boiled down to the subjective whim of individual
judges arguing over what constituted redeeming
value. So we have a decade of confusion, fractured
rulings, and unworkable tests. A very messy era
for the First Amendment. It really was. This
unsustainable environment finally culminates
in a landmark breakthrough in 1973. The big turning
point. Yes. The Supreme Court hears the case
of Miller v. California. This is the critical
moment where the court abandons the memoirs test
and establishes a rigid, multi -pronged framework
that actually remains the law of the land today.
The Miller test. Exactly, the Miller test. Miller
v. California was a watershed moment. The court
recognized the inherent, dangerous ambiguity
in legislating obscenity, so they purposefully
structured the new criteria to strictly limit
state power, while still giving local jurisdictions
a functional tool. They needed something that
could actually be applied in a courtroom. Yes.
The Miller test dictates that for a work to be
legitimately subject to state regulation, all
three of its specific prongs must be satisfied.
Not just one or two, all three. Let's break down
the specific language of each of these prongs,
starting with the first. OK. The first prong
asks whether the average person applying contemporary
community standards would find that the work,
taken as a whole, appeals to the prurient interest.
So. They retained the architectural foundation
of the 1957 Roth decision here. They did. They
kept the average person metric, the reliance
on contemporary community standards, and the
necessity of evaluating the work as a whole rather
than isolating specific scenes like Hicklin did.
Yes, they preserved the localized nature of the
inquiry for that first step. Then they moved
to criteria number two. Which is what? Whether
the work depicts or describes in a patently offensive
way, sexual conduct or excretory functions, as
specifically defined by applicable state law.
Now, that phrase right there, as specifically
defined by applicable state law, that is a massive
evolution. It's the anchor of the whole test.
It forces a level of objectivity onto the legislative
branch. The court is essentially telling state
governments you can no longer pass vague laws
banning immoral works. No more sweeping moral
judgments. Right. If you want to prosecute obscenity,
your state legislature has to write down exact,
precise definitions of the physical acts or depictions
that are illegal. It removes a significant amount
of the arbitrary guesswork from the judicial
bench. It demands legislative precision. A judge
no longer has to guess what the state considers
offensive. They simply consult the specific statute.
It creates a concrete checklist. And finally,
we reach criterion number three. The value prong.
Yes. whether the work taken as a whole lacks
serious literary artistic political, or scientific
value. So here we see the pivot away from the
unworkable 1966 memoirs test. Because memoirs
required the work to be utterly without social
value. Exactly. Miller lowers that bar for the
state slightly, stating it must lack serious
literary, artistic, political, or scientific
value. The insertion of the word serious shifts
the burden significantly. It does. But here's
where it gets really interesting regarding the
mechanics of how this test is actually applied
in a courtroom. Oh, the scope dilemma. Yes. There's
a deeply complex dilemma regarding jurisdiction
and geography baked right into the Miller test.
This is a critical nuance regarding the scope
of the legal analysis that the source material
highlights. Let's talk about the contrast between
PROM 1 and PROM 3. Right. Criterion 1 assessing
the appeal to prurient interest is explicitly
localized. It's based on the specific town or
city standards? It relies entirely on the contemporary
standards of a specific community. The standard
for what appeals to a Purian interest in a rural,
deeply religious county might be drastically
different from the standard in a major metropolitan
arts district. That makes sense. It aligns with
the idea of community self -determination. But
criterion three, determining whether a work lacks
serious literary or artistic value, is completely
divorced from local standards. It is a staggering
jurisdictional contrast. Because the standard
for the third prong is judged by the metric of
a reasonable person of the United States as a
whole. Think about the cognitive gymnastics this
requires. It's absurd when you really break it
down. How do you construct the profile of a single
reasonable person across an entire wildly diverse
nation of hundreds of millions of people? I mean,
how do you define the standard of a reasonable
person across the entire nation compared to a
single local community? You really can't. The
national standard was implemented to protect
marginalized art, ensuring that a brilliant but
controversial novel isn't banned nationwide just
because one highly conservative town finds it
offensive. Which is a noble goal. It is, but
it makes the third criterion vastly more ambiguous
than the first two. It forces an almost impossible
cognitive dissonance on a local jury. Imagine
sitting in a jury box. I'm picturing it. The
judge instructs you to look at prong one and
use the specific localized moral compass of your
specific town to determine if a movie is offensive.
Got it. Ten minutes later the judge instructs
you to look at prong three entirely discard your
local moral compass and somehow channel the artistic
sensibilities of a hypothetical nationally representative
reasonable person. Right be everyone and no one
all at once. Exactly. How is a human brain supposed
to accurately execute that pivot? It's an incredibly
tall order. And that dissonance is exactly what
makes the third prong of the Miller test so heavily
litigated. You are asking laypeople to operate
as both intensely localized citizens and omniscient
national art critics simultaneously. It highlights
the persistent, inescapable ambiguity of obscenity
law. Even after decades of refinement, ending
with the highly structured three -part Miller
test, the legal system is still fundamentally
resting its weight on abstract, undefinable concepts
like the national reasonable person. Which, when
you strip away the Latin and the multi -part
framework, still feels a lot like a highly formalized,
bureaucratically dressed -up version of I know
it when I see it. It really does. It's just Stuart's
gut feeling wearing a nicer suit. That's entirely
accurate. We spent a lot of time dissecting the
legal mechanics here, but I want to pivot to
the profoundly human element of this history.
Yes, the personal toll of all this. We need to
look at Potter Stewart himself. He coined this
phrase in 1964. He lived through the subsequent
decade of lower court chaos. He watched the Supreme
Court scramble with memoirs and then finally
synthesize the Miller test. He had a front row
seat to the fall out of his own words. By 1981,
his perspective on his own iconic concurrence
had shifted dramatically. Here's where it gets
really interesting. There is a reflection from
Stewart in 1981 that is striking in its self
awareness. The weight of legacy is a heavy thing
for anyone, but particularly for a jurist who
dedicated his life to the careful calibration
of the law. His confession in 1981 was remarkably
candid. I have the quote right here. Go ahead.
He stated. In a way, I regret having said what
I said about obscenity that's going to be on
my tombstone. When I remember all of the other
solid words I've written, I regret a little bit
that if I'll be remembered at all, I'll be remembered
for that particular phrase. It's a profound,
almost tragic irony. It truly is. You dedicate
your entire professional existence to the grueling
study of jurisprudence. Decades of work. You
ascend to the highest court in the nation. You
author hundreds of complex, deeply researched,
heavily reasoned legal opinions that actively
shape the architecture of American society. The
cultural zeitgeist largely ignores the mountains
of rigorous intellectual labor and reduces your
entire legacy to a catchy, slightly colloquial
sound bite. It's the equivalent of a brilliant
symphony conductor only being remembered because
they once sneezed loudly during a performance.
That is a harsh but very fair comparison. And
it speaks volumes about what actually resonates
with human psychology. Right. We don't generally
memorize 50 page legal treatises because they
are dense, technical and require immense cognitive
load to parse. We remember, I know it when I
see it because it is instantly universally relatable.
Exactly. It perfectly captures a cognitive experience
we all share. And this brings us to the deeper
epistemological layer of our deep dive. Stuart's
personal regret regarding his phrasing opens
the door to a much broader philosophical conversation
about how we acquire and categorize knowledge.
Epistome. Exactly. The philosophical study of
the nature, origin, and limits of human knowledge.
There are several concepts in philosophy mentioned
in our sources that are directly intertwined
with Stuart's struggle, starting with what is
commonly known as the duck test. Ah, the duck
test. It's a classic colloquial example of abductive
reasoning. The premise is simple, right? If it
looks like a duck, swings like a duck, and quacks
like a duck, then it probably is a duck. It is
a method of classification that relies entirely
on observable evidence and pattern recognition,
rather than strict underlying genetic or biological
definitions. You don't need its DNA sequence
to know it's a duck. Exactly. Stewart was effectively
applying the duck tis to the First Amendment.
He couldn't articulate the legal DNA of hardcore
pornography. But he deeply trusted his own cognitive
ability to recognize its behavioral profile.
It's quack, so to speak. I know it when I see
it is the ultimate distilled version of the duck
test But the philosophy of mind takes this even
further with the concept of qualia qualia This
is where the intersection of law and human consciousness
gets incredibly complex Explain qualia for us
qualia is a foundational concept in the philosophy
of mind It refers directly to the individual
subjective feeling of a conscious experience.
Like the examples we used earlier. Yes. The internal
sensation of a headache, the specific taste of
a strawberry, or the visual experience of the
color blue. That highly individualized internal
sensation is qualia. And it's inherently private.
By its very definition, qualia is ineffable.
It cannot be fully or accurately communicated
to another human being through the medium of
language. You can explain the chemical composition
of a strawberry, and you can map the neural pathways
that fire when you eat it, but you cannot transfer
the actual experience of the taste to someone
else. So when Justice Stewart sat in the screening
room watching the lovers, he was experiencing
legal qualia. That makes perfect sense. He was
having a subjective, internal, conscious reaction
to the images on the screen. Yes. That reaction
was so visceral and so deeply embedded in his
own internal architecture that he realized any
attempt to translate that feeling into an objective,
universally applicable legal test was mathematically
impossible. He ran head first into the hard problem
of consciousness while trying to draft a legal
document. He really did. And this ties directly
into another epistemological concept our sources
bring up. tacit knowledge. Tacit knowledge is
fascinating because it explains so much of how
we navigate the world. It's the idea that you
can possess a complex skill or understanding
perfectly, but the second you try to explicitly
codify it or write it down, you fail. The classic
analogy is riding a bicycle, right? Exactly.
Michael Polanyi, the philosopher who heavily
developed the concept of tacit knowledge, argued
that we can know more than we can tell. That's
a beautiful phrase. We can know more than we
can tell. If you know how to ride a bicycle.
You understand the precise, dynamic balance of
gravity, momentum, and physical posture required
to stay upright. But if you were tasked with
writing a comprehensive, step -by -step manual
that could successfully teach someone who had
never seen a bicycle how to perfectly ride one
on their first attempt, you would fail. The knowledge
is tacit. It resides in your muscle memory and
spatial awareness, not in your linguistic capability.
Similarly, recognizing a family member's face
in a crowded room is tacit knowledge. That's
a great example. You don't consciously measure
the distance between their eyes or the angle
of their jaw. Your brain simply synthesizes the
pattern instantly. You know it's them, but you
cannot explain the algorithmic process your brain
used to reach that conclusion. This perfectly
frames Stewart's Dilemma. his understanding of
the boundary between art and hardcore pornography.
was entirely tacit. He had internalized a complex
boundary based on his lifetime of education,
his cultural upbringing, and his societal context.
His internal database was highly calibrated.
He knew exactly where the line was in his own
mind. But the moment the Supreme Court required
him to write the explicit instruction manual
for the rest of the American judicial system,
he realized it was a fool's errand. The tragedy
of his concurrence is that he accidentally exposed
a terrifying truth. What's that? A massive portion
of our rigid legal and societal framework actually
relies on tacit knowledge, which is inherently
unstable when subjected to the demands of objective
jurisprudence. That is unsettling, honestly.
But what is truly remarkable is that this specific
linguistic and epistemological wall is not isolated
to the messy world of legal obscenity. No, it
pops up everywhere. Our sources point out a delightful,
beautiful piece of historical symmetry regarding
this phrase. The math connection. Yes. In 1974,
a prominent mathematician named Andre Weill was
attempting to define the boundaries of number
theory. In his writings, Weill utilized a phrase
strikingly similar to Stuart's to describe how
mathematicians identify theories within that
specific field. And Weill himself was actually
paraphrasing the renowned poet A. E. Hausmann,
who had utilized a very similar concept decades
earlier when grappling with the impossible task
of defining the essence of poetry. The symmetry
there is just incredible. Mathematics is widely
considered the most rigorous, objective, and
purely logical language humans have ever developed.
It is the language of universe constants. While
poetry, conversely, is arguably the most fluid,
subjective, and emotionally driven language we
possess, it is the language of pure qualia. And
yet both the brilliant mathematician and the
celebrated poet, just like the Supreme Court
justice, ultimately reach a frontier where their
respective lexicons fail them. Whether you are
attempting to categorize prime numbers, capture
the emotional resonance of a stanza, or legally
define an obscene act, human beings will constantly,
inevitably run face -first into the invisible
walls of language. We have covered immense ground
in this deep dive. We really have. We traced
the strict moralistic policing of the 1868 English
common law, which sought to protect the most
susceptible minds at the expense of everyone
else. We watched the legal system attempt to
pivot in the 1950s. replacing moral panic with
the confusing metric of the average person. We
explored how a French film in an Ohio theater
forced a Supreme Court justice to publicly admit
the limitations of his own profession. And we
unpacked how that moment of candor led to a decade
of judicial chaos, ultimately resulting in the
highly structured dual -jurisdiction complexity
of the Miller test we rely on today. But for
you, listening to this, the history of obscenity
law reveals something much deeper about the systems
we live in. It does. We rely on the law to provide
us with objective, cold, hard truth. We look
to the Supreme Court to serve as the ultimate
rational arbiters of our reality. But the history
of the First Amendment shows us that the foundation
of these immense, powerful institutions is often
rooted in highly subjective, ineffable human
experience. It forces us to ask a deeply uncomfortable
question. how much of our society is actually
built on unshakable logical rules and how much
of it is simply built on invisible assumptions
we can't explain but just collectively agree
upon. And that leaves us with a critical final
puzzle to mull over. Let's hear it. If our most
fundamental constitutional rights and the very
boundaries of our freedom of expression ultimately
rest upon the limits of language, the incommunicability
of qualia and the silent database of tacit knowledge,
What other major structures in our daily lives
are functioning the exact same way? Oh wow. Examine
the rules of your workplace, the behavioral expectations
of your community, or the boundaries within your
personal relationships. How many of the rigid,
supposedly objective rules you navigate every
single day are secretly just relying on the silent
unwritten assumption of, I'll know it when I
see it. That is a deeply provocative thought
to take with you into your day. Thank you so
much for joining us on this deep dive into the
limits of language, the First Amendment, and
the messy reality of the law. We'll catch you
on the next one.