Google – Determiner of Obscenity?
Who’s to determine what is obscene these days, especially on the web? Do we need a morality handbook for website filtering or should we just rely on our collective conscience? Or perhaps Google can make the call? In a court case in Florida, where operator of a pornographic web site is being tried, the defense lawyer has summoned Google data to show that the Pensacoloan community prefers sexual content in their web searches, that they are “more likely to use Google to search for terms like “orgy” than for “apple pie” or “watermelon.”
The argument that follows is if most of the community wants it, why should anyone stop it? It appears that, in Pensacoloa, the greater good is less virtue, not more. This, of course, relativizes morality based on community, a real postmodern turn. But this communitarian ethic is moving from cultural postmodern mores to actual legal practice. I wonder how Pensacoloans really feel about this, about their burgeoning sex-charged reputation? This might not attract the kind of tourism the city wants!
Trial date is July 1. NY Times reports that: “In the last eight years, the Justice Department has brought roughly 15 obscenity cases that have not involved child pornography, compared with 75 during the Reagan and first Bush administrations…” Supreme court decisions explicitly rely on “contemporary community standards,” along with two other key factors, which seems to beg the case for a greater standard of morality. After all, if the contemporary community standards move from celebrating pornography to endorsing adultery, how are 50% of the spouses going to feel about that? And what if murder gets popular? The slippery slope of communitarian ethics seems to point beyond the community to a need of a greater judge, a greater, divine community who can offer impartial judgments; however, the identity of such a being or god rarely reaches a community-wide consensus.
Creation Project 
Don’t try to extend this too far. The community standard really only applies to First Amendment law, not to other areas of conduct. It is a result of the extensive prosecution of pornographers under obscenity laws in the 1960s and 1970s. The prevailing decision is Miller v. California, in which the U.S. Supreme Court determined that what is is obscene has to be based on community standards, not on some national standard.
It’s a creative argument to try to use internet searches to show that community standards are changing, but the counter to the argument, is that if people are only searching online in the privacy of their home, it might indicate that the community standards do not permit the open display of the material.
Also, don’t forget …. adultery is not criminal behavior anymore. It is merely morally wrong. Obscenity and murder are still illegal.
You are right, this case does point to a need for a higher moral authority than what the community as a whole is willing to look for on Google.
That Christian college in Pensacola (which gets repeatedly potshotted-at in the media for its prohibition of “making eye-babies”) surely would not agree with this so-called community definition. That lawyer should lose this case based on his assumption that a judge or jury would fall for this legal chicanery…