This isn’t news exactly, although it was to me when I saw it on Bluesky yesterday and thought it was one of the funniest things I had ever read:

All of these legal tests, however, are quite vague. And the question of whether a particular film or photo has serious artistic value is rather obviously in the eye of the beholder. Hence Justice Potter Stewart’s infamous statement that he may not be able to come up with a coherent legal framework to determine what sort of material should be banned [for obscenity], “but I know it when I see it.”

The result was that, for much of the 1970s, the justices literally had to meet in the basement of the Supreme Court to watch pornographic movies that were the subject of prosecutions, in order to make subjective calls about which movies should be protected by the First Amendment.

Those movie days, as described by Bob Woodward and Scott Armstrong in The Brethren, were thoroughly humiliating experiences. Justice John Marshall Harlan, for example, was nearly blind during many of these screenings, so one of his law clerks had to describe what was happening on the screen to him—often prompting Harlan to [exclaim] “By Jove!” or “extraordinary!”

I haven’t read The Brethren so I don’t know whether that means Harlan was outraged by what he was hearing or just amused that his clerk was being forced to describe it out loud, but I find it hilarious either way. “Great Caesar’s Ghost, young man! I must not have heard you correctly. Please begin again.”

The excerpt is from an article on Vox by Ian Millhiser (sub. req’d) discussing last Friday’s 6-3 ruling in Free Speech Coalition v. Paxton. The opinion—written by Justice Thomas, a fact that itself is amusing for reasons I won’t get into—held that Texas’s law requiring “certain commercial websites” to verify ages doesn’t violate the First Amendment. The law is almost identical to one the Court struck down in 2004, and the Court did not overrule the earlier decision. Justice Thomas spends at least a dozen pages arguing that the legal standard hasn’t changed, though it seems like it shouldn’t take a dozen pages to say that nothing happened. Anyway, Millheiser’s point is that the outcome means judges will again have to get more involved in making determinations such as whether challenged expression “lacks serious literary, artistic, political, or scientific value.” And that, presumably, means more extremely awkward “movie nights.”

Those considering clerkships might want to be sure the relevant justice’s eyesight is good before taking the job, in case this becomes a reality.