I think this point and Zack’s argument are pretty compatible (and both right).
Rules don’t have to be formally specified, just clear to humans and consistent and predictable in their interpretation. Common law demonstrates social tech, like judicial precedent and the reasonable-person standard, for making interpretation consistent and predictable when interpretation is necessary (discussed in Free to Optimize).
I don’t think this is relevant and endorse Nick Tarleton’s sister comment.
The thing about Jacobellis v. Ohio is that, even if Justice Stewart had to make a judgement call on whether Les Amants constituted an obscene film, at least Ohio did have a law banning obscene films. That law was written down, such that people considering distributing pornography in Ohio could reason about what the law said was allowed, rather than having to proactively infer and conform to Ohio law-enforcement officials’ personal preferences about how they want citizens to behave.
Quetzal_rainbow’s comment points out that how much you want to rely on authority vs. rules depends on what social system you’re talking about: for example, public libraries should be more rule-based than a private company.
In the case of, say, a public web forum, I think you clearly want it to be more like a public library, because all sorts of people might have something interesting to say about the forum’s topic. There’s no good reason to expect loyalty or mission-orientedness the way you would at a company.
So if, say, the administrators of a web forum want to make sure that authors feel comfortable using their moderation tools, and they’re worried that authors won’t feel comfortable if banned users retaliate for being banned by complaining on their shortform, they should make a rule that says, “Don’t complain about being banned,” so that users can reason about what the rules say are allowed, rather than having to proactively infer and conform to moderators’ personal preferences about how users should behave.
It’s true that we don’t have a hand-coded Python program that classifies whether a comment constitutes a “complaint”, much as we don’t have a hand-coded Python program that classifies whether an image contains a bird, but that level of rigor just isn’t what’s being asked for. It’s okay if the rules have to be written in English instead of Python, but for clarity’s sake just make a rule!
The thing about Jacobellis v. Ohio is that, even if Justice Stewart had to make a judgement call on whether Les Amants constituted an obscene film, at least Ohio did have a law banning obscene films. That law was written down, such that people considering distributing pornography in Ohio could reason about what the law said was allowed, rather than having to proactively infer and conform to Ohio law-enforcement officials’ personal preferences about how they want citizens to behave.
This observation is insufficient to prove the conclusion you’re using it for. This is because there’s yet another layer of abstraction/reasoning involved, namely the constitutional one. Justice Stewart was not making a local comment about the scope of a specific state law.[1] He was interpreting and judging state law in light of the Constitution.
It’s worth it to be precise about all the layers involved:
The relevant part of the 1st Amendment to the federal Constitution says “Congress shall pass no law [...] abridging the freedom of speech, or of the press”
Despite the text of 1st Amendment literally saying only Congress, its protections are incorporated under the 14th Amendment against actions by state governments under Gitlow v New York.
Despite the text of 1st Amendment literally saying only “speech” or “press,” it also covers films under Joseph Burstyn, Inc., v. Wilson.
Despite the text of 1st Amendment literally saying “no law abridging,” it is in fact constitutional to pass laws restricting freedom of speech as long as they belong to one of a few categories.
Notably, these categories are not written down anywhere in an authoritative and conclusive manner; they are instead a somewhat ineffable part of custom and history. SCOTUS has literally described them as “historic and traditional categories long familiar to the bar,” i.e., the sort of thing lawyers are taught as more of an art than a precise science.
It was also unclear at the time what the list of exceptions was, and what precisely it covered, and whether “new” items could be added. It took until 2010 for the latter question to be answered in the negative.
It was terribly unclear what the meaning of “obscenity” was at that time. It’s still unclear today! For example, former Justice Scalia once said that, for him, all of pornography is obscenity and thus capable of being constitutionally outlawed by legislatures.
Despite judges and justices usually reading laws in light of their clear, unambiguous text, there is also a doctrine known as constitutional avoidance, where laws are usually interpreted to be constitutional if there’s any plausible way of narrowing them to stay within the bounds of the Constitution (i.e., even if the most natural/intended meaning of a law makes it unconstitutional, judges/justices will bend over backwards to find a different, plausible-but-less-likely interpretation that keeps it constitutional).
So the question the Court was facing wasn’t “is Les Amants obscene according to the Ohio law?”
The question they were actually facing was “is Les Amants obscene according to an judicially-created re-interpretation of what Ohio law means by the word ‘obscene’ that makes it the most constitutional, so that it can fit into a poorly defined category that we deem an exception to the literal text in the Constitution because of our unwritten understanding of history and tradition?”
This is all interesting, but let’s recall that Jacobellis v. Ohio was not the last Supreme Court ruling on this! The important subsequent case was Miller v. California:
the Court acknowledged “the inherent dangers of undertaking to regulate any form of expression”, and said that “State statutes designed to regulate obscene materials must be carefully limited.”[1] The Court, in an attempt to set such limits, devised a set of three criteria which must be met for a media item to be legitimately subjected to state regulatory bans:
whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;
whether the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law; and
This test clarified the definition of obscenity originally set out in the Memoirs precedent.[6] This three-part analysis became known as the Miller test.[2]
The Miller ruling, and particularly the resulting Miller test, was the Supreme Court’s first comprehensive explication of obscene material that does not qualify for First Amendment protection and thus can be banned by governmental authorities with criminal charges for those who distribute it. Furthermore, due to the three-part test’s stringent requirements, very few types of content can now be completely banned, and material that is appropriate for consenting adults can only be partially restricted per delivery method.[13]
I recommend reading the linked page in its entirety. In short, the conclusion of later Supreme Courts was that Justice Stewart’s standard does not suffice, and that there need to be actual rules. Those rules have been created, and have greatly improved the state of free speech protections in the United States, precisely by both limiting the scope of what sorts of actions are out of bounds, and by creating greater clarity about what sorts of actions are out of bounds.
And while we gain little by spelling out the “actual rule” in these “complex and/or illegible exception-judging criteria” situations, nevertheless we do gain something—namely, making explicit (and therefore salient) the fact that unexpected exceptions (driven by irreducible judgment) are a possibility. What is explicit, can be better prepared for, and can be discussed, and problems addressed; so this is a benefit, if not a very great one.
(Of course, to the degree that “unexpected exceptions (driven by irreducible judgment)” are expected—or known!—to be frequent occurrences, the above is a proportionally greater benefit.)
Why did the early computer vision scientists not write succeed in writing a formal ruleset for recognizing birds, and ultimately it took a messy cludge of inscrutable learned heuristics to solve that task?
I disapprove of Justice Potter in many respects, but “I know it when I see it” is indeed sometimes the only practical[1] way to carve reality.
(This is not meant to be a robust argument, just a couple of pointers at countervailing considerations.)
For humans.
I think this point and Zack’s argument are pretty compatible (and both right).
Rules don’t have to be formally specified, just clear to humans and consistent and predictable in their interpretation. Common law demonstrates social tech, like judicial precedent and the reasonable-person standard, for making interpretation consistent and predictable when interpretation is necessary (discussed in Free to Optimize).
I don’t think this is relevant and endorse Nick Tarleton’s sister comment.
The thing about Jacobellis v. Ohio is that, even if Justice Stewart had to make a judgement call on whether Les Amants constituted an obscene film, at least Ohio did have a law banning obscene films. That law was written down, such that people considering distributing pornography in Ohio could reason about what the law said was allowed, rather than having to proactively infer and conform to Ohio law-enforcement officials’ personal preferences about how they want citizens to behave.
Quetzal_rainbow’s comment points out that how much you want to rely on authority vs. rules depends on what social system you’re talking about: for example, public libraries should be more rule-based than a private company.
In the case of, say, a public web forum, I think you clearly want it to be more like a public library, because all sorts of people might have something interesting to say about the forum’s topic. There’s no good reason to expect loyalty or mission-orientedness the way you would at a company.
So if, say, the administrators of a web forum want to make sure that authors feel comfortable using their moderation tools, and they’re worried that authors won’t feel comfortable if banned users retaliate for being banned by complaining on their shortform, they should make a rule that says, “Don’t complain about being banned,” so that users can reason about what the rules say are allowed, rather than having to proactively infer and conform to moderators’ personal preferences about how users should behave.
It’s true that we don’t have a hand-coded Python program that classifies whether a comment constitutes a “complaint”, much as we don’t have a hand-coded Python program that classifies whether an image contains a bird, but that level of rigor just isn’t what’s being asked for. It’s okay if the rules have to be written in English instead of Python, but for clarity’s sake just make a rule!
This observation is insufficient to prove the conclusion you’re using it for. This is because there’s yet another layer of abstraction/reasoning involved, namely the constitutional one. Justice Stewart was not making a local comment about the scope of a specific state law.[1] He was interpreting and judging state law in light of the Constitution.
It’s worth it to be precise about all the layers involved:
The relevant part of the 1st Amendment to the federal Constitution says “Congress shall pass no law [...] abridging the freedom of speech, or of the press”
Despite the text of 1st Amendment literally saying only Congress, its protections are incorporated under the 14th Amendment against actions by state governments under Gitlow v New York.
Despite the text of 1st Amendment literally saying only “speech” or “press,” it also covers films under Joseph Burstyn, Inc., v. Wilson.
Despite the text of 1st Amendment literally saying “no law abridging,” it is in fact constitutional to pass laws restricting freedom of speech as long as they belong to one of a few categories.
Notably, these categories are not written down anywhere in an authoritative and conclusive manner; they are instead a somewhat ineffable part of custom and history. SCOTUS has literally described them as “historic and traditional categories long familiar to the bar,” i.e., the sort of thing lawyers are taught as more of an art than a precise science.
It was also unclear at the time what the list of exceptions was, and what precisely it covered, and whether “new” items could be added. It took until 2010 for the latter question to be answered in the negative.
It was terribly unclear what the meaning of “obscenity” was at that time. It’s still unclear today! For example, former Justice Scalia once said that, for him, all of pornography is obscenity and thus capable of being constitutionally outlawed by legislatures.
Despite judges and justices usually reading laws in light of their clear, unambiguous text, there is also a doctrine known as constitutional avoidance, where laws are usually interpreted to be constitutional if there’s any plausible way of narrowing them to stay within the bounds of the Constitution (i.e., even if the most natural/intended meaning of a law makes it unconstitutional, judges/justices will bend over backwards to find a different, plausible-but-less-likely interpretation that keeps it constitutional).
So the question the Court was facing wasn’t “is Les Amants obscene according to the Ohio law?”
The question they were actually facing was “is Les Amants obscene according to an judicially-created re-interpretation of what Ohio law means by the word ‘obscene’ that makes it the most constitutional, so that it can fit into a poorly defined category that we deem an exception to the literal text in the Constitution because of our unwritten understanding of history and tradition?”
Undergoing this endeavor is generally the province of state court judges/justices, except for constitutional avoidance purposes… more on that below
This is all interesting, but let’s recall that Jacobellis v. Ohio was not the last Supreme Court ruling on this! The important subsequent case was Miller v. California:
I recommend reading the linked page in its entirety. In short, the conclusion of later Supreme Courts was that Justice Stewart’s standard does not suffice, and that there need to be actual rules. Those rules have been created, and have greatly improved the state of free speech protections in the United States, precisely by both limiting the scope of what sorts of actions are out of bounds, and by creating greater clarity about what sorts of actions are out of bounds.
See also:
(Of course, to the degree that “unexpected exceptions (driven by irreducible judgment)” are expected—or known!—to be frequent occurrences, the above is a proportionally greater benefit.)