Fleming also said Assistant Blue Earth County Attorney Mike Hanson allowed the videos to be taken out of context as the case progressed. He pointed out that Hanson used a well-known legal quote that U.S. Supreme Court Justice Potter Stewart used in a 1964 decision about obscenity. Whether or not Hoffner’s videos were illegal depended, in part, on them being obscene or lewd.
When Hanson used Potter’s quote in his argument against Fleming’s motion to dismiss the charges, he cut it short. This is how Hanson concluded his written argument:
“Potter Stewart described his threshold test for obscenity as such: I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description (hard-core pornography); and perhaps I could never succeed in intelligently doing so. But I know it when I see it ...”
“Your honor, the state has provided the evidence to you. You will know it when you see it . . .”
Fleming pointed out Friday that Jass didn’t see it — and Hanson used an ellipsis to leave out an important part of the famous quote in his filing.
“Like much of this case, it was taken out of context,” Fleming said.
The full sentence at the end of Stewart’s quote said: “But I know it when I see it, and the motion picture involved in this case is not that.”