PENSACOLA, FL — First Amendment attorney Lawrence Walters is trying a new approach to convince a jury the material at issue in Ray Guhn’s obscenity trial meets one prong of the Miller Test: It does not fall outside the bounds of the local community’s standards of decency. Walters said he plans to call Google Trends as a virtual witness in the trial, scheduled to begin July 1st.Google Trends allows users to determine how popular search keywords are compared to other search keywords. According to a front-page story in the New York Times, sexual terms like “orgy” are more popular in Pensacola than “apple pie” and “watermelon.” Since Pensacola residents more often search for sexual subjects than garden-variety everyday terms, his client’s sexually explicit imagery does not fall outside the norm, Walters contends.
“We tried to come up with comparison search terms that would embody typical American values,” Walters told the Times. “What is more American than apple pie?” According to Google Trends, however, “people are at least as interested in group sex and orgies as they are in apple pie.”
It is worth noting that attorney Jeffrey Douglas employed a similar technique earlier this month in the Max Hardcore obscenity trial, which took place in Tampa, FL. Douglas set up a computer in the courtroom and demonstrated that Web searches for sexually explicit topics returned many more results than searches for locally popular topics like University of Florida quarterback Tim Tebow. Hardcore nonetheless was convicted on all counts. Walters’ approach, however, is more specific: He intends to show the jury what Pensacola residents are searching for, not a combined result from all searches worldwide.
“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” Walters told the Times<.i>. The Google Trends data allows him to “show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed.”
Of course, prosecutor Russ Edgar begs to differ with Walters’ assessment of the data, saying the volume of internet searches about any topic does not necessarily indicate a community’s values. Even the Times pointed out that search terms like “Nintendo” and “surfing” were more popular than “orgy” in the Pensacola area.
To make his point clearer, Walters last week served Google with a subpoena seeking numbers of searches performed by Pensacolans for specific sexual terms. A Google spokesman said the company’s legal team is reviewing the subpoena. Edgar said he may ask the judge to block Walters’ use of the Google Trends data.
Pundits are loving the new way of thinking about internet porn consumption, though.
“The ‘community standards’ test, which was reinforced in Miller vs.
California (1972) and subsequent decisions, has always struck me as bizarre,” James Joyner wrote at OutsideTheBeltway.com. “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,” Joyner concluded. “It’s not at all clear that it does.”
Other pundits believe allowing Google to be held up as the moral compass of society is asking for trouble. According to Barry Schwartz at Search Engine Land, practices like “linkbaiting” have introduced false information into Google, and evidently expunging the incorrect data is nothing short of a nightmare — if victims even can get Google’s attention about the problem.
On the whole, though, the issue raised by Walters bears consideration. In the past, attorneys defending clients against charges of obscenity typically attempted to define “community standards” by using as evidence magazines and other items that might be purchased in the local area. The problem with that approach, according to modern-day First Amendment attorneys, is that no matter how discreetly consumers attempted to purchase such items, they were required to buy in them in public places. Mail-order sales would be a much better measure of the true audience for sexually explicit materials, according to First Amendment attorney Jeffrey Douglas, but those statistics aren’t easily available. The Google Trends data, on the other hand, speaks to a much more private level of consumerism: purchases made inside the home, where people usually feel they can “let down their hair” and really be themselves without worrying about their neighbors’ opinions.
“The prospect of having measurement of internet traffic brings a more objective component than we’ve ever seen before,” Douglas told the Times.
Guhn, whose real name is Clinton Raymond McCowen, faces charges of racketeering and prostitution in addition to creating and distributing obscene material. Walters said the entirety of the prosecution’s case rests on proving the obscenity charges.
