Legal News

How to Define ?Obscenity?? Lawyer Looks to Google for Help

By Dan Slater

The test for obscenity, laid out in the 1973 Supreme Court case of Miller v. California, has always vexed lawyers. What’s “patently offensive”? What constitutes “serious literary, artistic, political or scientific value”? Perhaps most difficult of all is the first prong of the test: What does it mean for “the average person, applying contemporary community standards” to find that “the material as a whole appeals to the prurient interest”?

According to a front-pager today in the NYT, a defense lawyer trying an obscenity case in Florida is attempting to give the test some teeth by using results from Google Trends — which allows users to compare search trends in a given area — to show that residents of Pensacola, the community where the trial is taking place, are more likely, as the NYT suggests, to search for terms like “orgy” than for “apple pie” or “watermelon.” According to the NYT, 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, Clinton Raymond, charged with distributing obscene material through a Web site, 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 Walters. 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.”

The Florida prosecutor in the case, which is scheduled for trial July 1, said the search data may not be relevant because the volume of Internet searches is not necessarily an indication of, or proxy for, a community’s values.

In a federal obscenity case heard this month, Jeffrey Douglas, chairman emeritus of the First Amendment Lawyers Association, used a similar technique in another Florida pornography case. Douglas set up a computer in the courtroom and did Internet searches for sexually explicit terms to show the jury that there were millions of Web pages discussing such material. He then searched for other topics, like the University of Florida quarterback Tim Tebow, to demonstrate that there were not nearly as many related Web sites. His client was convicted on all counts.

Full post as published by Law Blog - WSJ.com on June 24, 2008 (boomark / email).