Movie Day at the Court’s Philosophy of Criticism

By , February 10, 2009 6:38 pm

Movie Day at the Court owes its philosophy to the justices of the Supreme Court who used to sit in the Court’s basement and watch pornos. 


In 1957, the Supreme Court ruled in Roth v.United States that “obscene” speech is not protected by the First Amendment.  The problem, of course, is how to define “obscenity.”  Justice Potter Stewart pretty much waived a white flag at the question, famously declaring in Jabobellis v. Ohio (1964) that as for hardcore pornography, well, “I know it when I see it.” 


Yet Stewart, though he made a joke of the Court’s First Amendment jurisprudence, articulated the intractability of the issue.  The Warren Court was never able to settle on a definition.  Instead, they gave us the Redrup Test, in which the justices, applying whatever definition of obscenity they like, arbitrarily gave a thumbs up or down to each individual work.  Consider it jurisprudence by Statler and Waldorf.   


During the early 70’s, the more conservative Burger Court tackled the definition of obscenity.  Because Redrup required the justices to look at every work individually, the Court’s basement was filled with movies like Memoirs of a Woman of Pleasure, Vixen, and Sexual Freedom in Denmark, which showed, among other curiosities, a penis in the last stages of syphilis.  Having lunch one afternoon during the 1971 term, Justice Thurgood Marshall suddenly announced to his clerks, “My God, I almost forgot!  It’s movie day!  We have to get back!”


As Bob Woodward tells the story in The Brethren, this was the most popular day of the year for the justices and clerks.  The clerks mocked Justice Stewart, yelling “That’s it, that’s it, I know it when I see it!” at full frontal nudity.  Justice Marshall especially loved mock-documentaries about curing nymphomaniacs (“Ah…the redeeming social value!”), and was often disappointed by “soft-core” offerings. 


These seventy-something year old men, along with their twenties-ish clerks, would sit in the dark and watch pornos, not unlike a bunch of Times Square perverts during a XXX matinee. 


To decide the foundational questions of freedom and democracy.   During Movie Day at the Court.



The doctrine that developed out of the Movie Day at the Court is still good law:  The Miller Test.  A work is obscene, unprotected speech if:  1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, 2)  the work depicts or describes, in a patently offensive way, sexual conduct or excretory function specifically defined by the applicable state law, and 3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.


The key is part three, where the Miller Test burdens the artist with showing that his work has artistic merit.  And yes, this is similar to saying “I know it when I see it” with a lot of expensive, important sounding words.  But, there is a key difference:  The Redrup-era “IKIWISI” test sounds ridiculous because the justice doesn’t have to say why she sees it, whereas the Miller Test forces the justice to at least reason her way to the answer.  Just what are these “contemporary community standards?”  Can something be both prurient and seriously political?  How do you measure “serious artistic value?”  Would James Madison still believe in federalism if faced with the collected works of Joe Eszterhas?


In other words, the Redrup is just as arbitrary as another famous Miller Test, this one articulated by Chief Justice Uecker and his associate justices. The Supreme Court’s Miller Test is more like these two guys scrutinizing Rocky V.    



Most people think, not without some merit, that the justices decide cases on political ideology, largely based on which President appointed them.  But that’s not entirely true.  A justice’s political ideology predisposes her to certain outcomes, and her judicial philosophy will guide her to certain outcomes.  But, a sound legal test requires the justice, even if she might already have decided the “Tastes Great / Less Filling” issue, to reason herself to the answer. 


This is the difference between political ideology and jurisprudence.  A politician and a judge may ultimately land at the same destination, but jurisprudence requires the judge to draw her own map.  To illustrate, this is political ideology; this is politics; this is jurisprudence.


Good criticism does the exact same thing:  Criticism is the art of mapping thoughts in any engaging and entertaining way—just as jurisprudence clearly articulates a roadmap of legal reasoning.  Movie Day at the Court is film criticism as cinematic jurisprudence, with the gleeful, absurdist spirit of Justice Thurgood Marshall rushing to the basement of the Supreme Court to watch I Am Curious (Yellow), looking for evidence of serious artistic merit as required by the Miller Test.  That’s what we’ll try to do at Movie Day at the Court, but with multiplex and indie fare.  Because, when it comes to movies, the justice and the critic answer the same question:  Is this crap any good?

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