Written by: Brady Iandiorio
Researched by: Tracy Frazier
Edited by: Jeff Hinman and Dean Micknal
Managing Editor: Mary Anne Nash

Apparently life in these United States has changed dramatically; orgies are more popular than apple pie. At least that’s what the defense attempted to show in a recent Florida trial. Using “Google Trends,” which shows the popularity of individual search terms in geographical areas, the defense found that several sexually explicit terms were searched more often than generic terms such as “apple pie,” “ethanol” and “boating.” By introducing this information, the defense hoped to prove that the defendant’s adult website was not considered obscene by contemporary community standards.

Currently, obscenity is measured under the “Miller Test,” which relies on the amorphous concept of “contemporary community standards,” as laid out by the U.S. Supreme Court in Miller v. California. To determine whether material is obscene, the court examines the local community affected by the alleged obscenity and asks whether the “average person, applying contemporary community standards,” would find the material to be lascivious in nature. The court next looks at the material under the applicable state law to determine if it demonstrates any sexual conduct and if it lacks value. The use of “Google Trends” data in obscenity cases would cause the concept of “community standards” to shift from the more puritanical standards most people support publicly to the more liberal ideas betrayed by their community’s private habits. For some, the idea of internet search habits helping define decency norms may make them long for the days when apple pie was truly more American than Paris Hilton’s latest sex tape.

Historically Obscene

The United States has a long history of regulating obscenity, starting with the Comstock Act of 1873. Originally passed to stop obscenity from being disseminated through the U.S. mail, the federal law made it a crime to sell or deliver items that could be used for abortion or contraception. The Comstock Act was initially popular but fell out of public favor when prosecutors attempted to expand upon its reach by charging art gallery owners under the Act for selling paintings of inadequately clothed women.

Despite rising opposition, many states enacted their own statutes mimicking and often expanding upon the original Comstock Act. The U.S. Supreme Court continued to uphold the law and its state-level analogues well into the Sixties. The tide slowly turned after the Court decided the Miller case, but the idea of overarching “community standards” had been planted long before Miller.

In 1891, Moses Harman published a weekly newspaper entitled Lucifer the Light-bearer. Harman hoped to educate people on the inequalities of current sexual mores and how these mores brutalized women. Many of the paper’s first articles were simple questions or recounts of sexual abuses that women had suffered at the hands of their husbands. Despite Harman’s attempt to get the court to look at the entirety of Lucifer as an educational dissemination of free speech, the court followed the prosecutor’s lead and found that Harman’s paper simply pandered to the lowest of man’s desires; opening the door for obscenity to be defined by the public. Judge John F. Phillips’ opinion includes such broad phrases as “common consensus of the people” and “hurtful to the public morals” in describing how Lucifer was categorized as obscene.

After Lucifer, obscenity jurisprudence slowly evolved through a number of legal challenges before culminating in the Miller Test. The Hicklin Test, born from English common law, asked whether the material under question tended to corrupt the minds of those open to immoral influences. While the Hicklin Test provided a basis for the Comstock Law, the Supreme Court overturned it in 1957 in Butler v. Michigan, noting that the state of Michigan’s attempt to ban all materials that might corrupt youth overreached to the point of “burn[ing] the house to roast the pig.”

In that same year, the Supreme Court decided Roth v. United States, introducing “contemporary community standards” as the appropriate test for obscenity. The court believed it could discern whether material, taken as a whole, was obscene by asking if the average person within a community viewed it as invoking lascivious thoughts. In 1964, the Court added two other important prongs to the “contemporary community standards” test in Jacobellis v. Ohio. The first prong required the allegedly obscene material to be “utterly without redeeming social importance.” The second defined the “contemporary community standards” used to measure obscenity not as those of the local community giving rise to the case but those of the nation as a whole.

In 1973, Miller v. California overturned Roth and Jacobellis but retained “contemporary community standards” as the guideline for determining obscenity. In Miller, a mass-mailing campaign resulted in a number of brochures featuring pictures and drawings of men and women in explicit sexual positions reaching a restaurant manager, who complained to the police after opening and reading the brochure with his mother. The Court retooled the old standards and came up with the “Miller Test,” which concentrates on whether material offends the sensibilities of the average local community member.

I Know It When I Prosecute It

Despite the Miller decision’s more exacting inquiry into local community standards, there was no immediate discernable reduction in the prosecution of obscenity cases. In fact, the Reagan and George H.W. Bush administrations continued to vigorously prosecute such cases, no doubt bolstered by Attorney General Edwin Meese’s Report stating that the pornography industry was harmful to the general public.

Eventually, the pendulum swung the other direction, and throughout the 1990s, the Clinton administration routinely ignored obscenity cases, only prosecuting four cases during President Clinton’s two terms in office. This occurred despite increased public access to potentially obscene material on the internet. The George W. Bush administration’s strong religious ties brought obscenity prosecutions back with a vengeance. From 2001 to 2005 there were forty obscenity prosecutions and twenty pending indictments. In 2005, President Bush cracked down further by creating the Obscenity Prosecution Task Force for the sole purpose of enforcing obscenity laws. Today, many prosecutors and taxpayers view prosecuting obscenity laws as a waste of valuable resources. Nevertheless, there are still many who wish to see these crimes prosecuted to the fullest.

e-Obscenity

In prosecuting obscenity laws, the internet poses the problem of how to apply local contemporary community standards to a medium that has no discernible geographical location. In a 1996 case against the proprietors of the Amateur Action Computer Bulletin Board System, the self-styled “nastiest place on Earth,” the 6th Circuit measured the bulletin board’s content–which included pictures and discussion of bestiality, oral sex, incest, sadomasochistic abuse and “golden showers”–by Tennessee standards despite the company being based in California. The Supreme Court reinforced and expanded on this proposition in ACLU v. Ashcroft by again stating that there is no national community standard, and no need to adopt a new standard to fit characteristics unique to the internet.

Which brings us back to the Google Trends case, where Florida brought a “RICO” charge against Clinton McCowen for profiting from the distribution of allegedly obscene materials. The judge determined that the “community” in this case was comprised of the four county area over which the court presided. The defense team discovered that “Google Trends” tracked data from Pensacola, Florida, the largest city located in the four counties. This information gave the defense a unique view into what exactly the greater Pensacola “community” viewed as standard. For instance, the defense compared “bukkake,” “group sex” and “orgy” against “apple pie,” “ethanol” and “boating.” Had there not been a settlement, the court’s acceptance of this comparison might have set a very low bar for community standards.

This idea however, might have some imperfections. First and foremost, the total number of times a term is searched doesn’t necessarily equate to community values. Second, the defense didn’t take into account that other generic terms appeared more often than the sexually-explicit terms, e.g. “nascar,” “surfing” and “nintendo.” Finally, the “Google Trends” defense doesn’t take into account those who aren’t searching or the purpose of each search. After all, not everyone in the community has access to the internet and not everyone is searching for pornographic reasons-and for that matter, not everyone uses Google. Additionally, the number of searches for a familiar term like “apple pie” could be lower because its definition is general knowledge within the community, whereas a term like “bukkake” might elicit more searches because of its unfamiliarity. [Editor’s Note: The unfamiliar terms used in this article are for illustration of the underlying legal issues, and inappropriate for search on a work or school computer.]

While the “Google Trends” defense is an interesting and inventive attempt to define “contemporary community standards,” it more likely measures what people choose to view in the privacy of their own home rather than the values we all agree should be openly displayed in our community…but that won’t stop us from searching.