I know it when I Google it.

A defense attorney in a Florida obscenity trial is going to try to persuade a judge that trends reflected in local Google search data are relevant to prove a community’s standards and values as a defense to criminal charges. Lawrence Waters represents Clinton Raymond McCowan, an alleged pornographic website operator. Waters plans to show a jury that Pensacola residents are more likely to search for terms like “orgy” than for “apple pie”. Therefore, he will argue, that Mr. McCowan’s website is not obscene because it does not offend local standards of decency. The prosecutor may object to the admissibility of the Google data on relevance grounds and may argue that search data does not necessarily reflect the values of a community. The persistent and creative Mr. Waters has nevertheless served Google with a subpoena for specific search data on sexual topics web surfed by local users. The trial is scheduled for early July.

Although former United States Supreme Court Justice Potter Stewart’s famous statement that he knows obscenity when he sees it is not the law of the land, a community’s standard of decency is an illusive concept. Miller v. California requires that a prosecutor must prove beyond a reasonable doubt that the material in question offends the local standards of the community. Kathleen A. Bergin, an Associate Professor at South Texas College of Law, has covered this case in her First Amendment Law Prof Blog. She says she’s “not sure which is more concerning – the pervasiveness of web pornography or being reminded of Google’s ability to track my personal habits”.

I have to say that as a resident of Sodom by the Sea, I am much more concerned about the big brother implications of Google’s ability to slice and dice my personal habits than I am about the proliferation of porn on the internet. You mean to tell me that the internet wasn’t invented as the premier vehicle for the delivery of pornography into American homes?

As a lawyer, I am impressed with the imaginative theory of defense posited by Mr. Waters in this Florida smut case. Certainly a jury can best be entrusted to decide whether evidence of Google search trends reflects community attitudes. Whether they know obscenity when they see it or Google it should be for twelve citizens to determine. This potential evidence seems relevant to me. CR