Jacobellis v. Ohio

This is the second in my series of Supreme Court cases related to pornography. Last time I promised I would do Memoirs v. Massachusetts next, but I completely forgot about Jacobellis v. Ohio which, for reasons that will become clear quite quickly, can’t be skipped. If this kind of thing intrigues you, check out the previous post on Roth v. United States or my other ongoing series on the details of social media sex policy. 

Jacobellis v. Ohio, 1964

Official citation and full opinion text: 378 U.S. 184

“I shall not today attempt further to define [hard core pornography], 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.”

Justice Stewart in his concurring opinion for Jacobellis

Jacobellis is not one of the great precedent-setting obscenity cases. It looked at a specific piece of content, and decided it did not qualify as obscene under the Roth definition. The full decision for Jacobellis is rather short – only 6,484 words, compared to Roth’s 12,066 (six years earlier) or Memoirs’ beefy 15,911 (two years later, and the next case to modify the obscenity definition).

However.

It is in Jacobellis that the famous line “I know it when I see it” occurs, which has come to be shorthand for the vague and subjective nature of ‘pornography’ classification. Many Americans are familiar with that quote but not the actual legal definitions from Roth or the later Miller. For that reason, I felt it was important/interesting enough to include in this series.

To set the scene, here’s what else was happening in 1964: The country was still reeling from President Kennedy’s assassination. The Beatles, Mary Poppins, and the Ford Mustang all premiered in the United States. Congress passed the first major piece of American civil rights legislation. The pilot of Star Trek began filming. The internet did not exist.

The case

State v. Jacobellis

Nico Jacobellis ran a movie theater in Cleveland Heights, Ohio. 

He was charged with two counts of possessing and exhibiting an obscene film under the Ohio Revised Code: “Selling, exhibiting, and possessing obscene literature or drugs for criminal purposes” (§ 2905.34, since repealed). I’m not going to quote the statute here because it’s the standard verbal soup of legalese, but it’s interesting to note that this rule combines pornography, contraception, and abortion materials as the same type of crime.

Jacobellis was fined a total of $2,500, which is about $21,000 in 2021 money.

His lawyer appealed on the grounds that 1) the film in question was not obscene, and 2) that Jacobellis thinking this did not then knowingly exhibit an obscene film. 

The original conviction in Jacobellis was affirmed by the state supreme court, and they appealed to the Federal Supreme Court.

The content

The obscene material in question was the 1958 french film Les Amants (The Lovers). 

Unlike the difficult-to-find material in Roth, this film is part of the Criterion Collection and thus available in full online.

The Lovers is the classic story of a depressed woman who thinks happiness will be found when she finds the right man, so she keeps impulsively going through lovers and doesn’t understand why she’s still miserable. 

That’s my summary, at least. Criterion bills it as “A deeply felt and luxuriously filmed fairy tale for grown-ups.”

Tbh I found it extremely boring. 

I’m not a fan of old movies in general, and the ~75 minutes of build up to the sex scene did a poor job of holding my attention. The “romance” aspect hasn’t aged as poorly as other old films I’ve seen, but it’s still not great, and there’s some very uncomfortable “token resistance/playing hard to get” moments.

The “obscenity” at the center of this case is, unsurprisingly, very tame by modern standards. At the end of the film, the main character (Jeanne) and her new boytoy (Bernard) make out in a boat, then go back to her room to have sex (in the same house where her husband and other lover are also staying, which made me feel so anxious). 

https://emmanuelleriva.tumblr.com/post/616322892361351168/the-lovers-1958-dir-louis-malle

After they make out a bit and disrobe they lay on the bed and we get the only truly scandalous-by-modern-standards moment, where you can briefly see an exposed “female nipple.” (gasp)

In modern America, exposed female nips in a sexual content are usually enough to force an ‘R’ rating for a film (although remember this is a French movie, a country that is generally more friendly to that sort of thing).

The sex is artistically shot and the geometry seems to indicate that he’s going down on her, which is always nice to see represented in media, especially classic media. It never shows anything below the waist, and focuses mostly on the expressions of pleasure on Jeanne’s face.

At the end of the scene Jeanne flings a hand up in ecstasy and slides it along the sheets. The camera pans away from her face to focus on her hand, which is then grabbed by Bernard (this is where the still for the modern version of the movie poster comes from). 

The scene then skips ahead to the afterglow and overly romantic pillow talk, and we’re out of obscenity territory. The whole thing is maybe three minutes.

The only other item of particular note in this movie is that the upper-class high-femme lead has visible underarm hair in multiple scenes, something I would dearly love to see more of in modern media (this is another thing the French have a friendlier attitude towards).

The Ohio Supreme Court had this to say about the movie when they confirmed Jacobellis’ conviction (cases concerned with state law appeal to the state’s supreme court, and if someone still isn’t happy with the outcome they can then appeal up to the Federal Supreme Court).

“This court viewed Les Amants (The Lovers). The film ran for 90 minutes. To me, it was 87 minutes of boredom induced by the vapid drivel appearing on the screen and three minutes of complete revulsion during the showing of an act of perverted obscenity. Les Amants (The Lovers) was not hard-core pornography, i.e., filth for filth’s sake. It was worse. It was filth for money’s sake.”

I’m not sure how “filth for filth’s sake” would differ from “filth for money’s sake” under capitalism, but ok.

The court

The Supreme Court didn’t change a ton between Roth in 1955 and Jacobellis in 1964 (other than color photography becoming commonplace).

Imagine those nine old white men in a room watching Les Amants together, notepads to hand and clerks assembled behind them.

Warren (middle of photo) was still Chief Justice and only three justices had left the court since Roth, none of whom were opinion authors, so I won’t bother naming them here. 

Justice Brennan (fourth from left in photo) authored the majority opinion for both Jacobellis and Roth. Brennan is a big player when it comes to obscenity rulings, and will appear in later cases as well.

Justice Harlan (far right in above photo), author of one of the dissenting opinions in Roth, is also still around and will be heard from again to dissent in Jacobellis. 

This was the same court that unanimously upheld the Civil Rights Act of 1964 (when it was immediately challenged in court), and confirmed that voting was a fundamental right in Reynold v. Sims.

The Jacobellis case was overturned 6-3, with the three dissenters scattered across the political spectrum according to Oyez’s ideology scale. This meant Nico Jacobellis was declared not guilty, and didn’t have to pay the fine.

Justices in favor of overturning:

1. Black
2. Douglas
3. Brennan
4. Stewart
5. White
6. Goldberg

Justices in favor of affirming:

1. Warren
2. Clark
3. Harlan

The consequences

As I mentioned at the beginning, the Jacobellis decision didn’t matter a whole lot (except for Nico Jacobellis himself of course, for whom it mattered a great deal). 

The actual outcome of the case can be summarized very quickly by this quote from the first paragraph of the decision:

“We conclude that the film is not obscene, and that the judgment must accordingly be reversed.”

Justice Brennan, writing for the majority opinion

The famous quote comes from Justice Stewart’s concurring opinion, which is quite short (only 141 words) so I’ll present it here in full: (emphasis mine)

“It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.”

Chief Justice Warren, who called the desire for erotic materials a “morbid and shameful craving” in his Roth opinion, dissents on the Jacobellis decision, asking “who can define ‘hard core pornography’ with any greater clarity than ‘obscenity’?”

Which, really, is a great question, and the whole point of this investigative series.

However he goes on to say that while the Court is arguing over definitions, “those who profit from the commercial exploitation of obscenity would continue to ply their trade unmolested.” Personally I think it’d be great if not molesting people was the goal of the Supreme Court. 

Warren also doubles down on the Roth definition, disagreeing with the majority opinion in saying that the “community standards” therein don’t imply a national standard, but should be left up to the states, even if those states won’t agree with each other. 

This particular line of argument is moot in the age of the internet, but it makes up much of the hand-wringing in early obscenity cases. It is the entire basis for Justice Harlan’s dissent here in Jacobellis, as well as his dissent in Roth. 

None of the three dissenting justices argue that the content is obscene. Their arguments are almost all about ‘should it be our job to make this decision.’ 

Ironically, two of the concurring justices also don’t think the Supreme Court should be making decisions on what is obscene, but rather than leaving it up to the states they take a more pure free speech stance and don’t think anyone should be deciding what is obscene, so they’re happy to join in overturning this case. 

The conclusion

Other than a new catchy quote, not much was changed by the Jacobellis decision. However, Chief Justice Warren in his dissenting opinion foreshadows the next big fight in American obscenity law: context. 

“In my opinion, the use to which various materials are put — not just the words and pictures themselves — must be considered in determining whether or not the materials are obscene. A technical or legal treatise on pornography may well be inoffensive under most circumstances, but, at the same time, ‘obscene’ in the extreme when sold or displayed to children.

In the instant case, for example, the advertisements published to induce the public to view the motion picture provide some evidence of the film’s dominant theme: ‘When all conventions explode . . . in the most daring love story ever filmed!’ ‘As close to authentic amour as is possible on the screen.’ ‘The frankest love scenes yet seen on film.’ ‘Contains one of the longest and most sensuous love scenes to be seen in this county.’”

There will be much more discussion of context and marketing in the next edition of this series, which – I pinky promise this time – will cover Memoirs v. Massachusetts and the infamous Fanny Hill.