Legal Commentary

Defending Obscenity in the Age of Google

By TChris

The idea that obscenity can be defined by contemporary community standards has always been controversial. Why should First Amendment protections differ depending upon the majority viewpoint in one's community of residence?

The idea is even sillier in the age of the internet and satellite broadcasting. What does "community" mean? The internet community spreads across all boundaries. If two people in two different communities are watching the same movie or viewing the same website in the privacy of their own homes, why should one be less entitled to First Amendment protection than the other? Why should your neighbor's opinion make your private activity a crime? How is a person to know if obscenity is accepted in a particular community? Do you need to take a survey of community standards before you crack open Tropic of Cancer?

A creative defense to an obscenity trial in Florida is making use of Google data to show that Pensecola computer users have very low standards indeed (or, at least, that they share the typically raunchy interests of many members of every community). [more ...]

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm....

“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” said Mr. Walters, the defense lawyer. Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” he added.

Just as technology makes the concept of contemporary community standards meaningless, it opens up new avenues to expose the community's hidden standards.

Lawyers in obscenity cases have tried to demonstrate community standards by, for example, showing the range of sexually explicit magazines and movies available locally. A better barometer, [Jeffrey] Douglas said, would be mail-order statistics, because they show what people consume in private. But that information is hard to obtain.

“All you had to go on is what was available for public consumption, and that was a very crude tool,” Mr. Douglas said. “The prospect of having measurement of Internet traffic brings a more objective component than we’ve ever seen before.”

On the other hand, NASCAR won out over orgy in Pensacola, so the data cuts both ways.

Full post as published by TalkLeft on June 24, 2008 (boomark / email).