""I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it."
-- Judge Potter Stewart, Supreme Court Justice, 1964
In the obscenity trial of Miller v. California, in 1972-3, the Supreme Court ruled that part of what determined whether an item was "obscene" was predicated on "contemporary community standards" -- in other words, what is considered racy in Boston might be different from what is considered racy in Salt Lake City. However, attempting to define what "contemporary community standards" are has always been problematic.
Now, in a Florida lawsuit, the defense attorney is turning to Google Trends search records in an attempt to demonstrate that, in terms of comparative popularity, the subjects of a pornographic Web site are indeed within the norm for that community.
Attorney Lawrence Walters, defending the website operator, plans to show that, in Pensacola, residents are more likely to search for "orgy" than for "apple pie" (as in, as American as...) or "watermelon" -- though they are less likely to search for "orgy" than for "surfing" -- therefore demonstrating that orgies are part of the contemporary community standard (though, perhaps, not as much so as surfing).
This is believed to be the first time that search engine information will be used for this purpose. Previously, attorneys turned to sources such as the types of magazines sold in an area to gauge community standards.
One hastens to point out that information from search engines is not available on an individual level, only on an aggregate, comparative level. In other words, Google can provide how many people have searched for "orgy" but not who.
The attorney has attempted in a previous case to show that the subjects were part of contemporary community standards by showing the availability of web pages discussing the topics, but lost that case.
Now, just because there are more searches for "orgies" than for "apple pie" doesn't mean that orgies are in fact more geared to community standards than is apple pie. After all, people have many sources of information about apple pie but, presumably, not for orgies. Outliers could also be a problem; as one comment to the New York Times story described, "a small cadre of dedicated perverts could be distorting the data for the whole county."
And as another commenter points out, "'[M]urder" is more popular than surfing, orgy and apple pie, but I don't think that means that the Florida community is condoning murder."