Empirical Lawyering: Community Values and Google Searches
Ever since the Supreme Court's landmark 1957 ruling in Roth v. United States, obscenity trials involve the question of "contemporary community standards." As Justice Brennan wrote in his majority decision:
However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. ...It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.
The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.
Lawyers in obscenity cases have long turned to social scientists to try and answer the question of just what does offend "contemporary community standards." My father, William Simon (1930-2000), a sociologist who worked at the Kinsey Institute and studied sexual behavior, did his share of testifying as an expert in such cases.
Today lawyers are getting directly into the game of empirical research, turning to google searches as a handy measure of just what folks in the actual community where the case is being brought, might or might not consider offensive. As described in reporting by by Matt Risen in today's New York Times, the online search engine has become a medium for lawyers to pursue the question of community standards with far greater precision than in the past.
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.