I Know it When I See It<\/p>\n\n\n\n
Supreme Court Justice Potter Stewart, a son of Cincinnati, struggled to reach some legal definition of obscenity.\u00a0\u00a0In the 1960\u2019s, as the boundaries of the First Amendment freedom of expression clause were tested, the Court pondered the question:\u00a0\u00a0when is a pornographic film free speech, and when it is beyond the standards; obscene and legally banned.<\/p>\n\n\n\n
Eventually the Court would come to a \u201ccommunity standards\u201d decision, allowing individual communities to make their own call about decency. Oddly enough, Cincinnati would become a \u201chotbed\u201d of legal action over obscenity, with the Hamilton County Prosecutor testing exactly how much he could ban in the early 1970\u2019s. He went from films to magazines (Hustler) to art exhibitions (Maplethorpe) and made himself the \u201cking of censorship.\u201d<\/p>\n\n\n\n
But before that decision, Miller v California<\/em>in 1973, the nine justices of the Supreme Court had to decide film by film. About once a month it was \u201cmovie day\u201d in the theatre in the basement of the Supreme Court building. There, some of the justices, and many of the clerks (it was a mostly male club then) would watch movies. Justices Black and Douglas took the position that there was no boundary and that all movies were protected under free speech. They didn\u2019t attend. The rest ate popcorn and watched porn.<\/p>\n\n\n\n While the clerks developed \u201cstandards:\u201d guessing that if a certain action appeared then Justice so-and-so would call it obscene, ultimately it was a completely subjective decision. And out of that process came what was known as the \u201cPotter Stewart standard.\u201d In the case (this time Cleveland Heights) Nico Jacobellis v Ohio<\/em>, 1964; Justice Stewart concurred with the decision finding the film shown (Les Amants) <\/em>not to be obscene. In his opinion, Justice Stewart put forward his honest if subjective standard for obscenity:<\/p>\n\n\n\n \u201cI 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,\u00a0and the motion picture involved in this case is not that.\u201d<\/em><\/p>\n\n\n\n \u201cI know it when I see it<\/em>:\u201d a legal standard written in a Supreme Court decision.\u00a0\u00a0Today the obscenity level of porn films is less of an issue, probably due to the internet where there are no barriers at all.\u00a0\u00a0But that phrase can well be applied to the seminal issue of our time, the looming impeachment of Donald J Trump.<\/p>\n\n\n\n The standard for impeachment is clearly written in the Constitution, \u201c\u2026treason, bribery, or other high crimes and misdemeanors<\/em>.\u201d \u00a0(US Constitution, Article 2, \u00a74.)<\/em><\/p>\n\n\n\n Treason is \u00a0defined in the Constitution:\u00a0\u00a0\u201cTreason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort\u201d (US Constitution, Article 3, \u00a73.)\u00a0\u00a0<\/em>Bribery is not defined Constitutionally, but has an accepted definition of taking money to influence a decision.\u00a0\u00a0<\/p>\n\n\n\n But \u201chigh crimes and misdemeanors\u201d is not so easily defined. In our current use of the term misdemeanor, should the President be removed for \u201cjay-walking\u201d or having a joint? That doesn\u2019t fit with the seriousness the authors of the Constitution placed on the impeachment process. And \u201chigh crimes\u201d today is being equated with the criminal term \u201cfelonies.\u201d But was that the actual intent of the Constitution?<\/p>\n\n\n\n The basis for impeachment and removal of the President, as for much of the legal system of the United States, was English Common Law.\u00a0\u00a0In Common Law, there were two types of crimes:\u00a0\u00a0those against the king (the state) and those against commoners.\u00a0\u00a0For example, “petit treason” would be to go against your brother, “high treason” would be go against the king (the state.) \u00a0 A \u201chigh\u201d crime wasn’t necessarily so much a legal \u201cfelony\u201d as a crime against the country.<\/p>\n\n\n\n And it is possible for a President to commit a \u201chigh crime\u201d without committing a felony.\u00a0\u00a0Neal Katyah, former Acting Solicitor General under the Obama Administration, made an interesting point.\u00a0\u00a0If the President decided that he was going to take a six-month vacation in Spain, abandoning his post as President, it would not be a \u201cfelony\u201d offense.\u00a0\u00a0But clearly his dereliction of duty would be impeachable.<\/p>\n\n\n\n