Defendant to use Google porn search data as evidence in obscenity case

posted at 1:15 pm on June 24, 2008 by Allahpundit
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Use it for what, you say? Per Miller v. California, here’s the current First Amendment test for obscenity:

The basic guidelines for the trier of fact must be: (a) whether “the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest…; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Contemporary community standards are usually whatever the jury says they are. Until now?

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…

In a federal obscenity case heard this month, Mr. Douglas defended another Florida pornographer. In the trial, Mr. 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.

Brilliant, but also kind of stupid. For one thing, criminal law’s aimed at how people should behave, not how they necessarily do behave — e.g., jaywalking — so interpreting “contemporary community standards” to hold members of the community to a standard higher than what they typically observe in practice isn’t out of left field. For another thing, unless I’m misreading part (a) of the Court’s test, the jury’s not supposed to apply community standards to decide whether the material’s offensive but merely whether it’s prurient, i.e. meant to arouse the viewer/reader. You can imagine juries in different parts of the country coming to different conclusions about that vis-a-vis an erotic sculpture or a D.H. Lawrence novel (which is why the Court included part (c) of the test, as a safe harbor for artists), but the prurience of most porn is an easy call and the Google data would have no relevance to it. If there’s any part of the test that the data should affect, it’s part (b), whether the material is “patently offensive.” If everyone’s, er, “reading” it, then how offensive can it be? Although even that’s beside the point since the real goal here, obviously, is to replace the Court’s test with a more familiar one in hopes of shaming the jury into an acquittal. Slick. I hope it works.

Exit invitation: Here’s the data set. Go crazy! (And note the annual Thanksgiving spike for “apple pie.”)

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