Looking to Google to Help Us Define Obscenity

Back in 18th century New England, what was considered "obscene" was determined often by the leader of the local community church. Beginning in New York City in the 19th century, the Courts were put in charge of defining obscenity for us. Courts had to consider a mish-mash of local customs, notions of free speech and criminal libel, access to appropriate medical information on sex, where and whom was writing the "obscene" material, etc..** But a lot has changed, and where are we now to find the local customs to help the courts determine what the community--not one special interest group or another--determines to be obscene? The NYTimes points today to a case in Pensacola, FL where an enterprising attorney thinks Google search could help us figure out community thinking regarding the nature of obscenity...

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.

This is pretty ingenious. By using Google Trends, Walters hopes to demonstrate the accessibility and interest in "obscene" material in the jurisdiction of the First Circuit Court for Santa Rosa County, where the trial is taking place. This supports the notion that Pensacola folks are looking for obscene material at a certain rate determined by search results, and thus have voiced a community opinion on what they think is obscene.

However, it does raise concerns about the collection of personal data, how that data might be used, and if that data could, in another context be used against someone in, perhaps, a divorce proceeding (search results mined for the ISP of a particular person to "prove" unfitness or "cheating.)

Florida state prosecutor Russ Edgar believes that the popularity of sex-related websites has no bearing on whether or not Mr. Walter's client violated community standards. "How many times you do something doesn’t necessarily speak to standards and values,” Mr. Edgar said.


I would think, though, that a high number of search results for particular terms could indeed show what a community wants to know about a subject. In some ways, a parallel could be drawn between the selling of obscene materials in 20th century stores and search results. Think about it: in the 19th century, one would only go to a particular shop and ask for particular books if one was going to buy. There little regular "browsing" of obscene materials. However, with the rise of porn shops in the 20th century, lots of (mostly) men could go in and "browse" various titles, movie boxes, products, etc. The fact that many shops could stay in business--regardless of whether we like them or not--in some way demonstrates that there's a market for obscene materials. Nowadays, rather than going into some skeevy pornshop located in a very bad part of town to view obscene material we can "browse" the Internet for obscene materials in the privacy and safety of our homes.

That we have privacy and safety to view obscene material may indicate a broader tacit acceptance of obscene material than what people are willing to admit to in openly and publicly. If we think about it, this kind of harkens back to the private and public "face" ideal of Victorian England (slightly different from 19th c. America.) Are we, through search, revealing far too much of our private "face"--and could this end up impacting our laws?

Think about it though: do Google Search Results really see into the minds of men and women? Or are we getting some sort of false positive or narrow world view by considering Google Search results? Perhaps search results should be considered along with other factors and information, as a way of dealing with the private and public faces of a community to help determine what a community deeply thinks is obscene.

Just as long as they don't reveal our ISPs....






**See Helen L. Horowitz's explanation of sex and the courts in her book "Rereading Sex: Battles over Sexual Knowledge and Supression in Nineteenth-Century America."