[Avodah] Misleading Paraphrase of Jacobellis v. Ohio, 378 U.S. 184 at 197

[Jay F Shachter]

The Avodah mailing list is currently hosting a discussion on the
interesting phenomenon that everyone knows that electricity is
forbidden on Shabbat and Yom Tov, but no one seems to know exactly
why.

In v27n14, rabbirichwolpoe at gmail.com contributed to this ongoing
discussion, and wrote, inter alia:

> 
> And we can punt to Potter Stewart's -- "I know it when I see it"
> thinking.
> 

Rabbirichwolpoe at gmail.com was trying to make the point that we can
know that something falls into a forbidden category, even if we cannot
define the forbidden category precisely.

This reflects a significant, and, I will allow myself to say,
pernicious, misunderstanding of what Justice Stewart was saying, in
his minority opinion.

Justice Stewart was not saying that he could recognize obscenity when
he saw it; he was speaking in the negative, saying that, at least in
the case before him, he could recognize that something was not
obscenity.  To make this distinction is more than pedantry: it is a
supremely important distinction.  To say that you cannot define a
crime, but you can recognize that the person before you is innocent of
it, is worlds apart from saying that you cannot define a crime, but
you can recognize when someone is guilty of it.  The latter is, alas,
generally what is meant by the people who misquote Justice Stewart,
but it would have been very, very frightening if a Justice of the
United States Supreme Court had ever actually expressed such a notion.


			Jay F. ("Yaakov") Shachter
			6424 N Whipple St
			Chicago IL  60645-4111
				(1-773)7613784
				jay at m5.chicago.il.us
				http://m5.chicago.il.us

			"Quidquid latine dictum sit, altum videtur"