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What Do You Get When You Google 'Obscene?'

In the decades since Miller v. California established a test for obscenity, courts have still not managed to establish a hard definition. While Miller's three-prong test is slightly more illuminating than Justice Stewart’s infamous “I-know-it-when-I-see-it” standard, its third prong -- that obscene materials have to be deemed so by community standards -- has continued to vex attorneys.

But according to today's New York Times, community standards might become easier to gauge. Florida defense attorney Lawrence Walters is arguing that Google searches provide insight into these standards, claiming that because Florida residents are more likely to search for "orgy" than they are "apple pie" or "watermelon," the community must not find group sex any more obscene than they do picnic fare.

"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.

His search terms of choice, however, are questionable. Dotcult points out that the Internet is private by nature. As a rule, people are willing to take their views on apple pie into the open. A better test, perhaps, would be to compare other searches that generally occur behind closed doors. Google Trends shows that Pensacola residents are far more likely to search for "weather," which one is likely to look into before leaving the house, than they are "orgy." Widening the potentially obscene search terms, Floridians are still more likely to check weather conditions than to Google the word "porn." Instead of relying on Google, Florida could also go the way of the one state that has found a way to define "community standards." Effectively proving that it has none when it comes to matters of the flesh, Oregon terminated its obscenity laws in 1987.

See also: WSJ Law Blog, Ben Fry, Gawker

Posted by Nicole White on June 24, 2008 at 06:51 PM | Permalink | Comments (0)


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