We could produce search results for individuals serving on the jury. Or not. That would be wrong. Wouldn't it? I mean, you don't even need a warrant for that.

I hope the lawyer, by the luck of the draw, is able to empanel the mayor, the school board president, the head of the county commission and a few ministers.

Anonymous... better than search warrants, just take pictures of license plates outside certain establishments.

A few years ago a video rental store owner in Utah was charged with distributing obscene material. His lawyer asked the judge to enter his client's rental records into the public court record to establish what community standards were. The charges were dropped with amazing alacrity.

I may not be able to define Porn,but I know when I've googled it!

In the trial of a pornographic Web site operator, the defense plans to show that residents of Pensacola are more likely to use Google to search for terms like "orgy" than for "apple pie" or "watermelon."...."

Oh, come on. "Obscene" doesn't mean "obscure" or "unknown." It doesn't mean no one will ever think to look it up.

The average person already knows everything he or she is likely to ever need to know about apples or watermelons by the time he or she reaches the age of 5.

Orgies, on the other hand, are something few Americans have seen or experienced. Therefore, if they're bored or curious, they might turn to the most obvious and convenient information-getting source for info about stuff they know nothing about and their neighbors probably don't either. So "orgy" is likely to score more hits than "apple," but then so is "condom" or "birth control" or "abortion" which aren't obscene.

Oops!

And after getting the judge to believe that, then they'll have to convince the judge that because searching for the word "orgy" isn't obscene, pictures or orgies aren't obscene!

Here's my ruling on an objection to the evidence on the grounds of relevance if I'm a judge: Irrelevant! Objection sustained! Doesn't tend to make a fact in controversy either more or less likely to be true!

Worst legal argument ever. The judge could really hand it to this guy in an opinion appealing the exclusion of the evidence. There should definitely be a pre-trial hearing to determine whether the evidence should be presented, and the ruling should be "no," and that ruling should be upheld on any appeal. A better and more honest tactic would just be something like a survey to see if people think the material is obscene. I have no opinion on whether they should win the case on the merits, since I don't feel like reading the article, but this strategy for proving community standards is truly, absolutely terrible.

I wrote:

pictures or orgies

Supposed to be "of".

Or pictures of Swan?

Reminds me of something I read somewhere that every generation does openly what the previously generation enjoyed behind closed doors.

Orgies, on the other hand, are something few Americans have seen or experienced.

Speak for yourself on that one buddy.

And as for your other argument? I regularly search for things that I have seen and experienced, not limited to porn, but also doctors offices, restaurants, clothing, apple pie and watermelon.

Search is not just used for things we know nothing about. I use it to find things I've found before. To get addresses and price comparisons. To find reviews and the latest news items.

."Community standards" is the current Supreme Court-approved yardstick

Just to be clear, community standards is one third of the yardstick used. To be obscene, something must be

Offensive to community standards
Appealing to prurient interests (yes, it must be offensive and appealing)
Must be COMPLETELY without Literary, Artistic,Political or Scientific value

Just sayin' ;>

I find one has to be careful when googling melons at work.

God help you if your kid has to research cougars.

I recently spent a night in a Marriott hotel in Connecticut where they practically force you to buy porn on their hotel TVs.

You're tired, you turn on the TV before going to sleep and there's no free broadcast TV to catch the late news. All they offer is expensive pay channels, including about 15 channels of porn, each costing $34.95, and each with a different theme -- "Orgies," "Straight to The Sex," etc. etc. And they promise not to show the titles of your purchases on your room or credit card bill.

So one way to select a jury pool in a porn trial is to ask someone if they have stayed in a Marriott Hotel in the last 12 months. If yes, ask to see their room bill. Any charges in the range of $35 means immediate disqualification.

* Actually there was one free channel on the hotel TV offering what looked to be 20-year-old interviews of Jack Nicklaus by a chubby golf commentator asking Jack what he must have been thinking strolling up the 18th fairway at blah blah blah zzzzzzzzzz. Strictly for the lime green pants crowd.

So... your argument, Swan, is that when people search for "orgy" on Google it is strictly for scientific purposes. Merely to educate themselves on this unexperienced but most certainly obscene subject.

Not just because they **like** looking a pictures of people having orgies.

Doesn't pass the laugh test.

PS: I like looking at pictures of people having orgies (at least if they are beautiful people).

The more interesting thing to me is that the defense attorney would be able to get Google to tell them what sites people in Pensacola go to........

They already make it pretty easy - http://www.google.com/trends?q=orgy%2C+watermelon&ctab=0&geo=US&geor=usa.fl&date=all&sort=1 . Number 8 on the list is Pensacola.

But the defense should really use this one: http://www.google.com/trends?q=two+girls+one+cup%2C+watermelon&ctab=0&geo=US&geor=usa.fl&date=all&sort=1 . Two girls one cup is more searched in Pensacola than watermelon.

Oh, come on. "Obscene" doesn't mean "obscure" or "unknown." It doesn't mean no one will ever think to look it up.

It doesn't mean that no one will ever think to look it up, but "obscene" does mean "offensive to community standards", which does mean that the average member of the community would not actively seek it out.

So "orgy" is likely to score more hits than "apple," but then so is "condom" or "birth control" or "abortion" which aren't obscene.

Well, yes. Neither is "orgy", evidently.

And after getting the judge to believe that, then they'll have to convince the judge that because searching for the word "orgy" isn't obscene, pictures or orgies aren't obscene!

Um, first, you didn't present anything that they needed to get the judge to believe before to refer back to with the "after", and, second, obscenity of particular material is a question of fact, so unless its a bench trial they'll need to convince the jury, not the judge, and third, yeah, exactly, they'll have to convince the trier of fact that the pattern of searching (along with whatever other evidence they present; if they've got data on where people go specifically after they do those searches, that could be the perfect followup) indicates that material like the ones at issue are not offensive to the relevant community standards. Its not necessarily a slam dunk, based on knowing one piece of evidence that will be presented, but that piece of evidence certainly has probative value.

Here's my ruling on an objection to the evidence on the grounds of relevance if I'm a judge: Irrelevant! Objection sustained! Doesn't tend to make a fact in controversy either more or less likely to be true!

Well, a favorable ruling would be better for the defense, but I'm sure they'll take reversible error as consolation prize.

I'm surprized that Thersites hasn't responded to Swan yet. He must be busy googling his handle this morning.

Who needs pictures of orgies? Check out WeeniesGoneWild.com for some real optical fun.

A couple of decades ago, there was a movement to put anti-porn initiatives on the ballot and let the people in their righteous wrath ban the sex shows. One early one in California was so vaguely worded that even John Wayne (a noted conservative) came out against it and made ads in opposition.

The all time champ was in Maine, where local religious groups put an anti-porn measure on the ballot. I recall CBS piously reporting that opinion in the state was bitterly divided, according to the polls, with the antis slightly ahead as the vote lommed. Then came the election, and the measure lost by 70 - 30.

Nothing could be clearer. No matter what gets said to pollsters or in public forums, in the privacy of the voting booth, people will not vote to, shall we say, limit their entertainment options.

The prosecutor is not combating crime in Pensacola, but using county or city resources to publicize his moral credentials for higher office to the Philistines he thinks are the real constituency. The voters of Pensacola should be judged obscene for electing such scum to a powerful office.

Swan,

The theory is that community standards is what the community actually *does* and not what they say they do, so how much porn there is in the community is clearly relevant and admissible.

However, it can backfire as well. I have a friend who used that same tactic on an obscenity case for a strip club. He went to some of the local 'adult' bookstores and bought some of their wares and flopped them out on the table for the jurors to see. I don't remember all that he had, but he had some of the more 'out there' items and magazines to show that some sexy dancing wasn't any worse than a lot of other things going on in the community. Nearly identical lines as the one in here.

But it backfired on him. Most of the jury, while they may or may not have something against strip clubs, weren't too familiar with the adult bookstore materials and were sort of freaked out about buttplugs the size of coffee cans, huge double ended dildos and the like. They decided they couldn't do anything about *that*, but could so something about the case in front of them and found the people guilty.

Oops. In this case, overkill didn't show people how innocent (or accepted) the practices were. The overkill caused a backlash and a feeling of wanting to stop/punish excessive behavior.

Of course, this was before widespread internet use. Who knows, it might be different today.

(That's another reason to always use focus groups and test out how 'good ideas' actually work. But that's a story for another day).

Dave (A lawyer)

Swan,

I don't think that argument is made to the judge. First it is made to the prosecution. If the prosecution persists then it is made to the jury and becomes public record.

As Dave points out, I think it would be much more effective to simply list the search terms or porn urls that community members visited and let the jury's imagination fill in the blanks. That way they imagine the worst without having to be explicit.

God help you if your kid has to research cougars.

Or beavers.

How's that job hunt going, Swan?

How's that job hunt going, Swan?
Posted by: shortstop

Swan Dive

You go, Larry.

Of course, to the SCOTUS, "community" means a bunch of tight-assed fundamentalist ReThugs, so you probably won't go all the way, if you know what I mean.

Aw, everybody knows you can't compare apples and orgies.

And what of those of us who really, really like watermelon orgies?

PJ in Jesusland, the Mormons own a chunk of Marriott, too. Too bad Mitt Romney didn't get grilled about this, eh?

It isn't truly obscene until you've fucked a whole country. Or the next generation. Or Schrödinger's cat.

One of my employer's customers is selling a product based on our technology from a website with an easy-to-remember name.

Unfortunately, we have since learned that an easy-to-remember variant of that name takes you right to a page full of hardcore porn.

And I will bet anyone $50 that Thersites mis-remembers the client customer's name on a daily basis.

Christopher, you're totally fouling up my argument. I didn't say that people never search for things they've seen and experienced. My point was that they have more reason to search for things they don't know about-- regardless of whether the thing is obscene or not. That is, the fact that you search for something may just be because it's something you need to find information on because you're ignorant about, not that you don't consider it obscene and wouldn't look it up it if you considered it obscene.

Tripp the Crazed:

I'm not sure what you are talking about when you say "First that argument is made to the prosecution." A defense attoreny doesn't have to convince a prosecutor of anything, unless it's to give him/her a more favorable plea bargain. Judges decide issues of law in proceedings, and juries decide issues of fact in trials. If the defense attorney insisted on trying to present this evidence, the prosecutor would make some kind of a motion or objection to try to exclude it, and the defense attorney would eventually have to argue for the validity of the evidence, just as I mentioned.

The retired medical librarian must weigh in here.

One of the reasons that medical libraries resist putting filters on their public workstations is that legitimate medical research requires using words like breast and penis.

Also many words have multiple contexts. Some years back I was putting together a menu for a banquet to be held in conjunction with a convention which my library was hosting. The banquet was held at Trail Dust Town in Tucson, said locale tarted up to supposedly look like a town of the Old West. So I wanted to have the menu appear "Old West". I decided to surround the text with either a rope or even better, a whip. I googled these terms, hoping to find a gif or jpeg I could download and manipulate. Try searching either on Google, and see the porn sites that you get.

Also, people can get very creative about bypassing Internet filters. I read a while back about teenagers frequenting a public library (probably in Pensacola) with Internet filters on its public workstations. The teens found "obscene" words in foreign dictionaries, and googled those, and voila! juicy sites.

I personally have always regarded this community standards thing with a jaundiced eye. While I would not want my children seeing orgy scenes, or even worse, bondage photos, I don't believe they would be permanently harmed by seeing such things, provided that parents discuss them reasonably with their children and why these behaviors are not the most optimum.

How's that job hunt going, Swan?

Said the maggot to the lion.

Well, as usual, it's a good day to be a lion walking on the earth and not a maggot fidgeting in the mud.

... lion walking on the earth ...

Aha! Swan's been reading Norman's blog instead of sending resumes out.

Maggots fidget in the decaying flesh of Iraqis killed by Americans.

Well, as usual, it's a good day to be a lion walking on the earth and not a maggot fidgeting in the mud.

Not a single callback there in the den, huh? That's really surprising, guy.

So I wanted to have the menu appear "Old West". I decided to surround the text with either a rope or even better, a whip. I googled these terms, hoping to find a gif or jpeg I could download and manipulate. Try searching either on Google, and see the porn sites that you get.

Using Google image search with Moderate SafeSearch on, and searching for "rope", I get one piece of arguable porn in the first 20 pages (420 images). With "whip", in the first 20 pages, I don't see anything even arguably pornographic, though there's quite a number of suggestive, PG-13-ish images.