The Lovers and the Supreme Court

I re-watched The Lovers, after reading something about Justice Stewart's famous "I know it when I see it" line about obscenity. 

Jacobellis v. Ohio (1964) involved a crime arising from possessing and exhibiting the film:

Jacobellis, manager of a motion picture theater in Cleveland Heights, Ohio, was convicted on two counts of possessing and exhibiting an obscene film in violation of Ohio Revised Code (1963 Supp.), § 2905.34.1 He was fined $500 on the first count and $2,000 on the second, and was sentenced to the workhouse if the fines were not paid.

I talked about this film and case around ten years ago (tempus fugit and all that). Justice Stewart's famous line came after he mentioned in a separate opinion that he thought only "hardcore pornography" could be criminalized under First Amendment principles. He drops a "cf" footnote, citing a New York opinion. Stewart clarifies:

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.

I noted last time that Stewart, perhaps being concerned about the response to his statement even back then, later added clarity on the sort of material he meant. I question how much he added by doing so.* 

Doctrinal tests are going to be unclear. What does "beyond a reasonable doubt" mean? Sometimes, the situation is very clear. A person is so clearly guilty (or innocent) that few would disagree. 

And, The Lovers, a French film, fits the bill. It's a serious art film by Louis Malle (he later made some English language films, including Vanya on 42nd Street). It is beautifully shot in black and white. 

The whole "obscene" portion is a late montage, which in total is around three minutes, and has the level of "nudity" that now could be shown on broadcast television.  People might be bored with the whole thing, wondering when the "dirty" parts will come. 

The bored, unhappy wife had an adulterous affair beforehand (no sex) but the Supreme Court had in the 1950s said that is okay.  Almost out of the blue, she and a third man fall in love. Before then, the film is basically talk, and after a while is somewhat boring.

This leads to the final reel. The bored, unhappy wife is suddenly smitten and enamored. The guy rather quickly fell in love with her as well. I will toss in that the wife is the narrator of the film though you have to listen closely since it is spoken in the third person. 

Their love is so strong that after a night together, she leaves her husband and young daughter. The day ends the love daze a tad but the film quickly ends so there is not much time to linger. It is a tad silly. 

Three justices would have upheld the conviction. Chief Justice Warren (with Clark) emphasized that the "use" of a film can help decide the question. For instance, the marketing of this film spoke about how "daring" and "frank" it was. Other than that, they said the state court reasonably applied the current test. 

Harlan, who overall gave states more discretion when the Bill of Rights was involved, argued:

As to the States, I would make the federal test one of rationality. I would not prohibit them from banning any material which, taken as a whole, has been reasonably found in state judicial proceedings to treat with sex in a fundamentally offensive manner under rationally established criteria for judging such material.

On this basis, having viewed the motion picture in question, I think the State acted within permissible limits in condemning the film, and would affirm the judgment of the Ohio Supreme Court.

Justice White concurred without opinion. Black and Douglas concurred with their usual absolutist views on obscenity.  Justice Goldberg concurs to emphasize how silly it is to call this obscene:

I have viewed the film, and I wish merely to add to my Brother BRENNAN's description that the love scene deemed objectionable is so fragmentary and fleeting that only a censor's alert would make an audience conscious that something "questionable" is being portrayed. 

The earlier cases spoke of "material which deals with sex in a manner appealing to prurient interest," which did not have "redeeming social importance." The material had to be judged "as a whole." 

Pandering eventually was clearly something that could cause problems though simply penalizing someone for normal puffery of this sort is a tad absurd. At most, pandering would cause problems in close cases. This film is not close. The three dissenters do not spell out what is so "offensive" about the film itself as compared to many other works. 

My "Criterion Collection" DVD copy (NYPL) had a little booklet with a film essay. The essay notes the striking thing at the time for "conservative" France was the "frank" themes, especially adultery without apology. It also explains the opening credits with a sexy "map" that represents the way to love. 

One other thing that stands out is that Jeanne Moreau does not totally shave her armpits. I am left with the understanding that this was simply the style for French beauty in the late 1950s. 

Again, it is simply silly to call a serious art film that has one risque montage (with some sex and nudity implied and a couple quick flashes that amount to "side boob" which is less prurient than some cleavage shots in other films) "obscene." 

The term roughly means a dirty movie. This is not even much of an "erotic" film. The favorite Stewart quip should not let us avoid the basics -- sometimes the answer is obvious. I put aside my opinion that obscenity is a very dubious exception.

As for the film, it gets a bit tedious after a while. Most of the characters are boring and purposely gauche. Jeanne Moreau is beautiful. Her love interest has a basic normalcy and is more a symbol than a real character. Moreau is the reason to see this film. 

The film is quick enough that you shouldn't be too bored. It's beautiful to look at. And, it has the added value of that special Supreme Court connection. 

ETA: I caught the opening of the season premiere of SNL. It was a not very good political bit that dragged on and on with a tiresome dig at senior moment Biden (played by Dana Carvey). 

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* The later opinion by Stewart (his also quotable dissent in Ginzburg v. U.S.) is never referenced (perhaps except in extended law reviews), probably because it would ruin the moment. 

The ultimate irony is that he argues there is a class of "hardcore" pornography in which the criteria of obscenity are so clear that it is acceptable to prosecute consenting  adults under the First Amendment:

There does exist a distinct and easily identifiable class of material in which all of these elements coalesce.

Not that I know of any case, including one where Brennan was willing to uphold a prosecution, where he found that. Luckily for him, as he suggests, they would be subject to plea deals and not appealed.