Searching for a Defense

FTR-Searching for a Defense

Making the case for online community standards

In June, defense attorney Lawrence G. Walters walked into a Pensacola courtroom to defend Clinton McCowen, a Florida resident and owner of an adult Web site specializing in "facial content." While it may seem obscene to try to protect a porn site operator from obscenity charges, Walters argues that McCowen is merely supplying the community with something it demands. The defense team used Google Trends, which analyzes Google queries to compute how many searches have been done for specific terms, relative to the total number of searches done on Google over time, and generates a graph illustrating the results. For example, enter the word "hope" and you will see that the search volume was up in 2008 over the previous year (the most searches for hope come from the United States, while Poland has almost entirely stopped looking). Defendants in the McCowen case used Google Trends in an attempt to set a precedent for community standards, comparing the terms "orgy" and "apple pie," and finding, much to the prosecution's chagrin, that orgy came out on top.

Where Larry Flynt could easily show that people purposefully ordered his dirty mags, it is much harder to prove that searchers who land on a prurient site were actively seeking out that particular content. Before the Internet, a kid from the suburbs would likely have had to travel to Bangkok to learn what a ping-pong show was, but now he might stumble across one while he is trying to figure out what the hell table tennis is. The Internet has made exposure to any imaginable perversion accessible from the privacy of one's home or the relative comfort of a roller chair from Office Max.

Community standards have been integral in obscenity cases ever since the 1957 ruling in Roth v. United States, which defined obscenity as: "Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." In an article for the New Statesman, a British current affairs magazine, defense attorney Walters writes, "The ultimate purpose for this analysis was to demonstrate that the 'community' for the McCowen prosecution was quite a bit more receptive to, and accepting of, sexual subjects than the prosecution either suspected or wanted to ever admit."

Defining obscene material has proved to be more difficult than creating it. For years, judges have used the "I know it when I see it" argument employed by Justice Potter Stewart during a trial in the mid-1960s. Then, in the 1970s, Marvin Miller mass-mailed "prominently displayed genitals" to advertise his pornographic books and magazines and was convicted by a California court of "knowingly distributing obscene matter." Thus the "Miller Test" was established, adding to the Roth "community standards" definition that in order for material to be considered obscene, it must depict or describe sexual conduct in a "patently offensive way" and lack any cultural value.
This still leaves a wide swath for lawyers to explore. Says Walters, "The key to winning obscenity cases is to get the jury comfortable with sexual issues. Unfortunately for obscenity defendants, most people - including jurors - do not like to discuss their sexual habits and interests in a public setting."

At a recent screening of the film based on his novel Choke, Chuck Palahniuk discussed how the changing definition of community is playing out in society, specifically for the sexually curious: "Church used to be that place where people could risk going and presenting their absolute worst selves, once a week, and be heard by people who would accept them back, through communion, into the community ... and you were loved despite your worst self. Then church became a place people went just to look good, and you didn't get that release of looking bad once a week. In a way, the support groups and 12-step groups and phone sex chat lines - all these contexts in which people present their worst selves and find a community despite their behavior, these have become the new church. These are the new escape valves where people go and confess and are redeemed by their peers." Subscription-based sites like McCowen's can constitute community. If you think you are weird because you enjoy sitting around in your boxers eating Chinese takeout while watching men in diapers, women with body piercings, and live farm animals engage in threesomes, think again! There are others just like you, so it must be okay!

It has always been difficult, if not impossible, to prove how much pornography a community consumes. The defense has had to get records of magazine subscriptions and movie rentals, both of which are often unavailable, and even when they are, Walters points out that "the mere availability of such material does not necessarily demonstrate the community's 'acceptance' of it." So before the Internet, and more specifically, before Google, what people consumed in private largely stayed that way: Only the mailman and the kid at the video store knew what the Joneses kept under their bed. And, says Walters, "A courtroom is the last place a person feels comfortable admitting to their sexual behavior and proclivities. It therefore becomes important to be able to show the jury, through empirical evidence, that their friends and neighbors are just as interested in a wide variety of sexual practices as they are."

At the time the Miller Test first amended community standards, technology wasn't advanced enough to affect it. Maybe - just maybe, if you had a tremendously savvy IT nerd on staff - you were able to link a couple of computers with blinky green screens together in your office and share a printer. Pong qualified as advanced gaming. The very first cell phone call was made. But this isn't 1973. The global Internet has made community a little vague. McCowen may live and work in Florida, but the "inspirational" material he distributes is available worldwide. "Not all material is obscene from jurisdiction to jurisdiction," writes John F. Wirenius, civil rights attorney and counsel for the National Coalition for Sexual Freedom, in Wired magazine. "Material may be considered obscene in Utah, for example, but not in New York. Whose standards are supposed to be applied to the Internet?"

In the McCowen case, the judge, somewhat arbitrarily, chose a four-county area around the city of Pensacola. In an interview with NPR, William Saletan, a national correspondent for Slate, argues that while Pensacola and the surrounding area may be a community in the "offline world," where "real people walk around," and where McCowen was headquartered, the "online community is completely different. You're getting an audience that is both much broader geographically and much narrower in terms of its tastes, and, in this case, fetishes."

Lee Siegel, author of Against the Machine: Being Human in the Age of the Electronic Mob, argues against Walter's redefinition of community standards. Siegel sees the public indulgence and availability of fetishes as an extension of the marketplace rather than the community. He writes about what he has termed "demassification," or the exploitation of private experiences: "Demassification has made areas of privacy and intimacy that always stood apart from the marketplace part of it. The saddest personal experience, the most outrageous sex act, the most blatant insult, gets 'produced.' Demassification is a more advanced means of allowing mass culture to reach down deeper into life."

Fortunately for the defense, Pensacola was one of the cities that Google Trends tracks. Writes Walters, "Analysis of the Google Trends data permits for the defense access to something inaccessible prior to the advent of the Internet - the personal, private sexual interests and morays of individuals expressed from secure, comfortable locations - the privacy of their home computers."

Not so, according to Bill Tancer, analytics expert, lawyer and author of Click: What Millions of People Do Online and Why It Matters. While he gives the defense "points for creativity," he says the search did not ascertain community values: "The terms chosen by the defense counsel seem arbitrary without getting too graphic. Either side could use this methodology to prove their respective case using selective charting in Google Trends." Tancer recommends looking at overall traffic to adult sites, which is "less prone to selective bias."

We'll never know whether Walter's strategy would have worked. Google was issued a subpoena for the data behind its search results, but then the prosecution offered a deal, and evidently three to five years was too good to refuse. Still, it's highly likely courts will allow search data in the future, so please, for the sake of the community, be careful what you Google.

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