Obscenity trial?

American attorney Lawrence G. Walters explains his revolutionary tactic of using Google Trends to pr

Since June 2006, prosecutors in and around the southern hamlet town of Milton, Florida, have vigorously pursued obscenity-based criminal racketeering and money laundering charges against Clinton McCowen, based on his ownership and operation of an adult website.

The State of Florida, like many other American states (and the federal government) authorises the use of racketeering or “RICO” laws against businesses profiting from the distribution of allegedly obscene materials.

“RICO” charges are much more serious than standard obscenity offenses, since the former can result in up to 30 years in prison along with hefty fines and forfeitures. In comparison, obscenity offenses are usually misdemeanors, often resulting in a fine or possibly a term of probation. Thus, when RICO is used to prosecute an obscenity case, the stakes increase exponentially for the defendant.

McCowen was, through June 2006, the owner of a successful website, titled cumonherface.com. (“COHF,” for short). COHF focused its efforts primarily upon delivering to its paying customers “facial content”.

Shortly after his arrest, McCowen engaged our law firm as his defence counsel. One of the first tasks necessary to defend an obscenity case is the development of competent evidence of the “contemporary community standards” in the area where the prosecution is brought.

The “community standards” phrase is an important one; under the prevailing “Miller Test” applicable to obscenity cases in the United States, the jury must find (among other things) that the obscene material violates the current standards of the local community.

In the McCowen case, the nature of the “community” was a blurry one. After all, the COHF website is located on the World Wide Web; essentially, the “community” is global or, at least for purposes of a US-based prosecution, national in nature.

Despite the defence’s legal arguments to the contrary, the presiding judge determined that the “community” in this case would consist of a four county area which comprises the First Judicial Circuit of Florida.

Importantly, this Circuit includes the mid-sized city of Pensacola, which is one of the cities on which Google Trends keeps search engine data, so its inclusion in the relevant “community” turned out to be critical for the development of this evidence.

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.

Both men and women claim to be much more conservative and prudish than they really are when forced to openly talk about sexual conduct. A courtroom is the last place that 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 neighbours are just as interested in a wide variety of sexual practices as they are.

With such evidence, the jurors begin to feel more ‘normal’ and inclined to accept media depicting sexual activity that might not be discussed in polite company. Without such evidence, a juror might condemn certain material as obscene, even if that same individual might privately consume similar media on a regular basis.

In previous obscenity cases, the defense was limited in its ability to demonstrate the community’s acceptance of sexually explicit materials to showing what might be available in the local ‘brick and mortar’ establishments that distributed erotic media.

Unfortunately, the mere availability of such material does not necessarily demonstrate the community’s ‘acceptance’ of it. That can usually only be shown by sales records relating to material of similar nature and character to that which is alleged to be obscene by the prosecution.

However, most local video and book stores do not want to be dragged into criminal obscenity litigation, so obtaining such sales statistics can be difficult. Even co-operating establishments may not keep records by category of adult media, so these records are usually just not available.

To make matters worse, in the McCowen case, the local Sheriff had sent representatives around to the area’s video stores and threatened them with obscenity prosecutions if they did not agree to remove a substantial amount of sexually explicit DVD’s, just prior to our client’s arrest.

So the material that was available in these local establishments, was not representative of the community’s consumption desire, but was more reflective of the Sheriff’s personal morality standards.

Given this dilemma, our law firm was tasked with the need to develop evidence of the local community’s sexual interests, without relying on the traditional methods of doing so.

Fortunately, online computer users establish a geographic “footprint” for Internet word queries. Indeed, Google has revolutionized online searches with the development of software designed to chart the relative popularity of given search terms within a geographic area, called “Google Trends.”

This device allowed McCowen’s defense team to hone in on the Pensacola area, and compare search terminology relating to the type of content published by our client on the COHF website, compared to other seemingly more innocuous, generic and popular terms.

The ultimate purpose for this analysis was to demonstrate that “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.

Specifically, McCowen’s defence team compared terms such as “bukkake,” “group sex,” and “orgy,” versus “apple pie,” “ethanol” and “boating.”

The results were, to say the least, a bit astonishing – at least for the prosecution. “Orgy” was a more popular search term than any non-sexually related term used in the analysis. “Group sex” beat out almost all non-sexual terms to which it was compared. “Bukkake” (referring to facial content taken to a much more heightened level), although certainly not a commonly-known phrase outside of a sexually-related context, was searched more frequently in the Pensacola area than in all but three other areas within the State of Florida.

The defence was in the process of obtaining the raw data underlying the above-referenced searches from Google, Inc., through a subpoena served on the company, when the case came to an abrupt halt shortly after this defence strategy became public.

The prosecutor offered a settlement of the criminal charges that was substantially more favorable than had ever been tendered previously, and the client accepted the plea bargain. Therefore, the Google Trends evidence was never introduced, and Google, Inc. was not required to divulge the raw search data. Therefore, the success of this method of proving community standards will have to be measured in the next obscenity case.

Google Trends adds one more weapon to the defence arsenal in obscenity-related prosecutions. Often, as in the McCowen case, these prosecutions are politically-motivated, and initiated based on something other than the quest for “justice.” Analysis of the Google Trends data permits for the defense to access 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.