What’s obscene? Supreme Court Justice Potter Stewart famously said, “I know it when I see it.” If Stewart were around today, he could see a lot more of it on the Internet. And in a way, that’s what the defense is arguing in the Florida trial of a pornographer.
Stewart’s comment, of course, is not the current constitutional standard for obscenity. That is defined by the Miller standard, which defines obscenity as appealing to the prurient interest, being patently offensive, and lacking substantial artistic, political or scientific merit.
Prurient interest is defined by “prevailing community standards,” according to the Supreme Court. So the defendant in the case, Clinton Raymond McCowen, is arguing that thanks to Google and the Internet, local community standards aren’t what they used to be.
Using data from Google, defense attorney Lawrence Walters intends to show that people in Pensacola, Fla., search more often for “orgy” than for “apple pie,” The New York Times reports.
“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. 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.
It’s not clear if the strategy will work. The prosecutor in the case said he will argue that locally based Internet searches are not necessarily a proxy for community values. The definition of community values is not necessarily what people do or watch behind closed doors, but what they think is appropriate in public.
Jeffrey J. Douglas, chairman emeritus of the First Amendment Lawyers Association, tried a similar strategy in a federal obscenity case involving another Florida pornographer. He set up a computer in the…