The Lovers, Free Speech, and Knowing It When You See It

I re-watched The Lovers, after reading something about Justice Stewart's famous "I know it when I see it" line about obscenity. Obscenity can be defined in various ways but it basically means a dirty film. I agree with him. This ain’t it.

The Supreme Court spent around fifteen years from the late 1950s to early 1970s trying to define obscenity. They broke into three groups: the absolutists, the moderates, and the conservatives. This film broke the usual way.

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

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 [citation]. 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.

The Lovers is a French art film starring Jeanne Moreau. She’s a bored wife and mother, who is having an affair. Late in the film, she and a third man (an ordinary sort but not phony or shallow like the others and who respects her) suddenly fall in love.

We then get the sexy montage, which is a few minutes long with implied nudity and sexual contact in the last half.* As Justice Goldberg noted:

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. 

I think this might be a tad unfair. The montage is risque and not something you would then find in a typical American film. OTOH, making the whole film obscene because of this one portion is a tad much. Other films, including various B films, were more seedy and sexual as a whole. Plus, this film won awards. It was a superior piece of art.

(It looks great and Jeanne Moreau is wonderful. As a film, I found it a tad boring. The final portion involving the two suddenly falling in love with each other also was a tad bit silly. I understand the symbolism and so on. It still was a bit silly.)

The Supreme Court in the 1950s had declared that the portrayal of adultery alone could not justify a criminal statute. They later determined that “obscenity” was not just the portrayal of sex. It has to be in a “prurient” way, that was as a whole reasonably deemed patently offensive and without social value.

Two dissenting justices referenced the advertising that declared the film “frank” and “daring,” which helped them justify their votes (pandering). Consider this ad:

I don’t like using “pandering” to outlaw speech but there can be some examples that are arguably problematic. Akin to cigarette ads targeting children. The examples provided in the dissenting opinion, however, are rather lame.

The third justice simply noted it could reasonably be found to be a treatment of “sex in a fundamentally offensive manner.” If so, so could many Hollywood films.

(Justice Harlan was not just a prude. He wrote the “F the Draft” opinion, protecting the rights of someone wearing a jacket with an expletive on it.)

Justice Stewart declared that he would only find “hardcore pornography” not protected by the First Amendment. He later added a bit more clarity, but he noted:

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.

Stewart’s comment is often cited — without people noting he later clarified — both as a witty quip and an expression of the truth of the arbitrary nature of drawing lines about art. We can apply that rule generally. What is the true meaning of “beyond a reasonable doubt?” Judges can parse it forever. Juries know it when they see it.

[ETA: Stewart’s clarification is found in his quite quotable Ginzburg v. U.S. dissent.

It is particularly ironic since he claims that there “does exist a distinct and easily identifiable class of material” for which obscenity convictions against consenting adults would be appropriate. People don’t cite that. It sorta ruins the fun.]

The Supreme Court started to depart from its film criticism days after Miller v. California managed to reach a 5-4 judgment on terms, letting local communities have somewhat more discretion in the process. A lot more is allowed these days.

Louis Malle, who directed the film, later came to America. He married Candice Bergen (Murphy Brown) and gave us such films as Pretty Baby and My Dinner With Andre. I recall enjoying his final film, Vanya on 42nd Street.

We are still debating proper line drawing regarding freedom of expression, sometimes in absurd ways. For instance, drag shows have received a good deal of attention.

My position is that obscenity should not be an exception to the First Amendment. We will continue to have debates, including drawing lines involving minors and unwilling viewers. But, sometimes, the case should be easy. You will know it when you see it.

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Note: 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 involved a sexy "map" that represents the way to love.