In the US legal system, judges and juries have to walk a fine line when they weigh the difference between illegal obscenity and content that's protected by the First Amendment. The controlling precedent is the Supreme Court's decision in Miller v. California, but the wording of that decision still leaves those making the ultimate decisions faced with determining what the "contemporary community standards" are. Now, a case in Florida is going to be asking jurors to decide whether Google search terms are an accurate measure of a community's standards.

The Miller v. California decision sets a number of hurdles that have to be cleared before a work can be deemed illegally obscene, most of them subjective. These include a lack of artistic merit, being sexually focused, and offensiveness. But, even if a work is inartistic and offensive, it's not obscene if the community has determined that it's okay. One of the facts that needs to be considered is, "whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest."

This standard has led a lot of lawyers to try to ascertain exactly what the community considers standard. Perhaps the most thorough examination came in a 2000 case, where a video store owner was accused of obscenity for offering sales and rentals of pornographic material in conservative Provo, Utah. His lawyers dug deeply enough to obtain the statistics for the subscriber rates for X-rated channels and frequency of pay-per-view pornography purchases by the surrounding community. After demonstrating that the defendant's rentals accounted for a small fraction of the community's porn consumption, the lawyers earned a quick acquittal.

Now, The New York Times is reporting a case in Florida where the defendant's lawyers are trying to avoid all the hard work done by the lawyers in Utah. They're apparently hoping take a shortcut to community standards: Google search terms.

A new use for Google Trends

The obscenity portion of the case, as detailed by the Free Speech Coalition, may be the least of the defendants' worries, as they were arrested in possession of guns and drugs. Still, those may have been secondary profit centers for the duo on trial, who also ran an online porn business, and kept costs down by recruiting local talent for group sex scenes. This led to charges of prostitution and the manufacture and sale of obscene material.





For those in Florida, an interest in "boobs" trumps more mundane concerns like surfing and orgies.

The defense against the obscenity charges will focus, in part, on the suggestion that interest in group sex fails the community standards test. Google search trends will be used to demonstrate that, except for brief periods near Thanksgiving, searches for "orgy" consistently outrank attempts to find information about "apple pie" in Florida . The rest of the year, orgy searches are closer in frequency to what might be expected to be a common activity in Florida, "surfing." An astute reader at Slashdot also recognized that, among Floridian Internet users, "boobs" has built and then expanded a lead over surfing during the past three years.

The lawyers have subpoenaed Google in an attempt to obtain data specifically for the area where the trial is taking place. It's hard not to view the effort somewhat cynically, namely as an attempt to avoid doing the hard work of digging into the data that was performed by the lawyers in the Utah case. Still, it could be argued that citizens are increasingly finding their communities online, and that search terms provide a more accurate measure of community interest than actual purchases and rentals. Expect those arguments to be made if this goes to trial, which will allow the legal system to decide how compelling it finds them.