Outside the Beltway

Obscenity, Google, and ‘Community Standards’

James Joyner · Tuesday, June 24, 2008 · 2 comments

In the landmark 1954 case Roth v. United, the Supreme Court set forth a series of guidelines to help gauge whether a law against obscenity violated the First Amendment. The first and most famous prong was whether “to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.” A series of cases followed in ensuing years but figuring out precisely what “contemporary community standards” were has always been vague, leading to Justice Potter Stewart’s famous statement that he couldn’t define obscenity but “I know it when I see it.”

Well, an enterprising Florida attorney may have hit on a solution using the Google.

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.

It is not clear that the approach will succeed. The Florida state 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.

But the tactic is another example of the value of data collected by Internet companies like Google, both from a commercial standpoint and as a window into the thoughts, interests and desires of their users.

“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.

The “community standards” test, which was reinforced in Miller vs. California (1972) and subsequent decisions, has always struck me as bizarre. Saying that marriage should be reserved for “one man and one woman” would offend local sensibilities in San Francisco and proclaiming that “there is no God” would be outrageous in rural Alabama but that doesn’t strip those expressions of their protection under the First Amendment. Nor do we attempt to apply the “community standards” test in cases of child pornography; we simply agree that the exploitation of minors, who lack the legal ability to consent, is not protected.

Still, given that the test has been around more than half a century, Walters’ approach is interesting. For the first time, we have a pretty good way of figuring out what people do in the privacy of their homes. The question, though, is whether the fact that a large number of people in the community do something in secret necessarily means that the community approves. It’s not at all clear that it does.

Correction: The original attributed Stewart’s statement to William Brennan.