from www.examiner.com – In 1964 the Supreme Court’s best definition of obscenity was Justice Potter Stewart’s instantly infamous line: “I know it when I see it.”

Stewart, in his concurring opinion in Jacobellis v. Ohio U.S. 184, found that the film in question at the time, Louis Malles’ Les Amants (The Lovers), did not meet that particular threshold. One can’t help but wonder what Stewart, applying the same arbitrary standard, might have thought of Mako’s First Time Scat 2 and Hollywood Scat Amateurs, the coprophilia flicks by Ira Isaacs now at the center of a new obscenity case that may be headed to the Supreme Court amidst complicated concerns over an alleged mistrial in the Ninth Court of Appeals, the departure of Justice John Paul Stevens and conflict of interest concerns surrounding (presumably) incoming Justice Elena Kagan, who has been involved in Isaacs’ case as Solicitor General.

Isaacs, the shock artist best known for his viral web hit 2 Girls, 1 Cup (if you don’t know what I’m talking about here, do yourself a favor and DON’T Google it), has had quite a run of it with his obscenity trial:

In June 2008, the case made headlines when Judge Alex Kozinski gave the go ahead for attorneys to screen hours of fecal fetish footage from the films in question, and again when The L.A. Times broke the story that Kozinski, chief judge of the Ninth Circuit Court of Appeals, was himself a purveyor of pornography as proprietor of a website featuring images suggesting bestiality and BDSM.

Via LATimes.com:

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”

The trial has been suspended ever since, and Isaacs is hoping to push through his petition to have it declared a mistrial by the Supreme Court so he can get back to his life and his… artwork. Key to that hope: Having the trial heard before Justice Stevens’ departure (Stevens’ previous stance on what constitutes a mistrial is deemed favorable to Isaacs’ case) or an assurance that Kagan would not have to be recused from the case if she’s on the bench when it’s heard. If scat porn is headed for the Supreme Court, Isaacs is going to need all the help he can get.

Via Business.AVN.com, “Will Ira Isaacs Be Justics Stevens’ last case?”:

Although Stevens has said that he would resign as soon as the last opinion of the 2009-2010 court term has been announced, that hasn’t happened yet, and Diamond hopes to convince the high court clerk to bring this case to Stevens’ attention so that his vote may decide whether the Supreme Court will accept Isaacs’ certiorari petition for next term.

But that’s not all, because even if Stevens does manage to get Isaacs’ petition accepted, he won’t be there when the court reconvenes on the first Monday in October; instead, it’s highly likely that current Solicitor General Elena Kagan will be—and therein lies another dilemma for Diamond, because the Solicitor General may—but is not required to—reply to Isaacs’ petition for certiorari, and to do so, Diamond argues, might force her to recuse herself from any proceedings involving Isaacs once she’s confirmed as a Supreme Court justice.

“I am respectfully asking the Solicitor General not to do anything that would result in her being recused in October,” Diamond wrote in his letter. “I do not know whether she can avoid participating in this case as the Solicitor General. If there is anything she can do to avoid having to recuse herself in October if she takes any action with respect to this case as the Solicitor General I request that she take such action (e.g., delegating [the] task of responding to [the] Petition to another attorney). To the extent that I am able to do so on behalf of my client, Ira Isaacs, I hereby declare that we prefer to have the Solicitor General Elena Kagan not participate in this case so as to avoid the necessity of her having to recuse herself in October.”

If the Supreme Court refuses to hear Isaacs’ petition for mistrial, the obscenity trial will begin again in the 9th U.S. Circuit Court of Appeal. Earlier this month, Isaacs told XBIZ.com that he was conflicted about either option.

Via XBIZ.com. “Ira Isaacs: ‘I’m fighting for our rights'”:

I’m torn,” Isaacs told XBIZ. “One part of me would like to win and walk away but the other part of me wants my day in court. I’m looking forward to going on trial and if I win, it’s a great victory for the 1st Amendment. If I lose, I’ll go to jail, but at least I said my peace.”