But Do They Have To See It To Know It? the Supreme Court's Obscenity and Pornography Decisions

That the area of obscenity and pornography is a difficult one for the Supreme Court is well documented (e.g., Sunderland 1975; Woodward and Armstrong 1979: 192-204, 244-53; Nowak, Rotunda, and Young 1983: 1008-10; McGuire 1990). Justice Brennan makes this point quite clearly: As a result of our failure to define standards with predictable application to any given piece of material, there is no probability of regularity in obscenity decisions by state and lower federal courts (Paris Adult Theatre I v. Slaton, 413 U.S. 49, 92 [1973], Brennan, J., dissenting). Despite the Court's numerous attempts to define obscenity (see Roth v. United States [1957], Redrup v. New York [1964], and Miller v. California [1973]), its obscenity and pornography decisions are made on a case-by-case basis (see Jenkins v. Georgia [1974]) and left to the subjective preferences of the justices. Perhaps Justice Stewart put best when, after refusing to define obscenity, he declared, But I know when I see it (Jacobellis v. Ohio, 378 U.S. 184, 197 [1964]). The vagueness of the Court's obscenity guidelines as laid out in Miller,' force us to look elsewhere for a determination of the factors affecting the Court's obscenity decisions.