In an obscenity trial, in order for a prosecutor to lock up an American citizen for making “dirty movies” or “dirty writings” or “dirty pictures,” he (or she) must convince the jury that the material violates “community standards.” Unfortunately, that tends to be easier than you may think, for jurors will often substitute their personal approval or disapproval of content for their judgment about what the community might think. And, what the community thinks in private is very different from what the community will admit in public.
According to Miller v. California, in order for material to be deemed legally obscene, a court must determine the following:
- Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest,
- Whether the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
- Whether the work, taken as a whole, lacks serious literary and/or artistic, political, or scientific value.
The Miller test was written in 1973 — long before the advent of the Internet. Accordingly, it doesn’t seem to really fit in with the Internet. When you apply “community standards” to your local bookstore — well, it seems relatively simple to apply the Miller test. However, when looking at a global medium, the test starts to lose some of its logical wheels. For a good discussion of this issue, see Lawrence G. Walters and Clyde F. DeWitt, Obscenity in the Digital Age, the Re-Evaluation of Community Standards.
A while back, I started playing with Google Trends while fighting an examining attorney’s determination that one of our clients’ trademarks was “immoral and scandalous,” and that a “substantial composite of the internet-using public” would think so. That research wound up in this brief to the examiner, and this brief to the TTAB.
Essentially, Google Trends lets you find out how often users are searching for certain terms. I compared our client’s trademark to common search terms. Read the briefs for details.
This tool proved itself useful once again in a recent obscenity trial, as reported on in the New York Times.
Judges and jurors who must decide whether sexually explicit material is obscene are asked to use a local yardstick: does the material violate community standards?
That is often a tricky question because there is no simple, concrete way to gauge a community’s tastes and values.
The Internet may be changing that. In a novel approach, the defense in an obscenity trial in Florida plans to use publicly accessible Google search data to try to persuade jurors that their neighbors have broader interests than they might have thought.
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.(source)
By using Google Trends, Attorney Walters hopes to show the jurors that their local area might not be as conservative as they think.
“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.
See What’s Obscene? Google Could Have an Answer for the whole story. Google… the duct tape of the internet.
