The New York Times has an interesting – and somewhat amusing – article today about a novel defense being tried in an online obscenity case. The Supreme Court has decided that definitions of obscenity must be based on contemporary community standards. Now, the defense lawyer in an obscenity case in Pensacola, Florida is presenting his evidence of contemporary community standards: Google searches.
Using data from Google Trends, the defense attorney, Lawrence Walters, has shown that “orgy” is searched for more in Pensacola than “apple pie” or “watermelon.” The Times quotes Walters as saying, “Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” adding that he intents to “show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed.”
Though Walters’ defense points out the hypocrisy of the application of the community standards test, it also demonstrates the test’s inherent oddity. Why should it be permissible to regulate speech that the rest of the residents of your town find obscene? How can status quo mores be challenged and reformed if material outside of them can be banned?
As surprising as it may be to individual Members of this Court, some parents may actually find Mr. Carlin’s unabashed attitude towards the seven “dirty words” healthy [ . . . ] Such parents may constitute a minority of the American public, but the absence of great numbers willing to exercise the right to raise their children in this fashion does not alter the right’s nature or its existence. Only the Court’s regrettable decision does that.
The right to express oneself should not depend on whether a majority or a minority find the content of one’s speech wholesome or obscene. It should not depend on whether more people in Pensacola search Google for recipes for apple pie or recipes for orgies.