Relying on Google for Community Standards?

The New York Times reports that in the defense to an obscenity trial in Florida, the defendant will rely on a Google meta-search to show that the residents around him possess broader standards than they may claim in public.

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.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient to demonstrate that interest in the sexual subjects exceeds that of more mainstream topics — and that by extension, the sexual material distributed by his client is not outside the norm.
Mr. Walters is defending Clinton Raymond McCowen, who is facing charges that he created and distributed obscene material through a Web site based in Florida. The charges include racketeering and prostitution, but Mr. Walters said the prosecution’s case fundamentally relies on proving that the material on the site is obscene.

The argument is that "private actions" contradict our "public values," and the information found through Google Trends may support this claim. While this may work for the obscenity portions of the trial, it may not for racketeering and prostitution.

The current legal standard by the Supreme Court is from Miller v. California and involves a three-tier test by former Chief Justice Warren Burger:

(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

This test leaves a lot to the imagination, especially in regards to defining the community in "contemporary community standards" or the "literary," "artistic," "political" or "scientific." Though most people would consider it unreadable, James Joyce's Ulysses was considered obscene because a few passages. In the 1933 court case, United States v. One Book Called Ulysses, a District Court in New York ruled that literature should be excluded from obscenity, even if it contained some foul language and some discussions of sex and sexuality.

I am not sure if the Google Trends argument will work but at least it is creative in the way in which it may reveal the actual rather than the ideal vision of a community.