BROOKE GLADSTONE:
July was supposed to mark the start of an intriguing obscenity trial, one that would demonstrate, once again, the revelatory power of Google. Alas, it was not to be. The prosecution settled.

It all began in June 2006, in a little town outside Pensacola, Florida, where Clinton McCowen owned, operated and filmed vignettes for his extremely adult website, the initials of which are COHF. If you need to know what that stands for, look it up on Google.

We know people do lots of naughty searches in, for instance, Pensacola, and it is on that knowledge that McCowen’s case turned. All obscenity trials turn on a few key issues set in a 1973 Supreme Court case called Miller v. California, the first of which is — and I'm quoting here — “whether the average person applying contemporary community standards would find that the work taken as a whole, appeals to the prurient interest.”

Since so much of this stuff is designed with prurient interests in mind, the operative phrase seems to be “community standards” and whether the material exceeds them. But how do you determine that?

McCowen’s lawyer, Lawrence Walters, used a new widget called Google Trends to see what Pensacolans search for online and found that such terms as “orgy” and “group sex” were searched far more than “apple pie” or “ethanol” or “boating.”

Slate’s Will Saletan recently wrote that when it comes to community standards, the prosecution had a clear definition of standards but the community part, not so much.
WILLIAM SALETAN:
The defense’s argument is, you know, you can't prosecute this pornographer by the supposed standards of the local community, 'cause, in fact, if you look at Google you can see how the local people actually behave. They were searching for “orgy” and other naughty terms. So those are their real standards. They shouldn't be held to their hypocritical standards that they claim in public.

The prosecution’s position on this is basically a defense of hypocrisy. Wait a minute. Yeah, these people were, you know, looking for naughty words online, but that’s not their standards. That’s their behavior.
BROOKE GLADSTONE:
[LAUGHS]
WILLIAM SALETAN:
And [LAUGHS] their standards are they expect better of themselves and others, and you know what? I think the prosecution is right about that. You can't judge standards by behavior because we all aspire to be better than we are.
BROOKE GLADSTONE:
So you agree with the prosecution, but the action that they take is where you part company. Because you say since Google shows us that human beings are dual creatures, or maybe multiple creatures, they shouldn't have to follow a single rule, the rule based in the non virtual world.
WILLIAM SALETAN:
That's right. And the linchpin for making that argument legally is the other half of the phrase, “community standards” — community. What is the community? Now, the prosecution is treating this case as though the community is Pensacola and the surrounding area where this pornographer was officially headquartered. And if you’re talking about the offline world, what we think of as the real world where people walk around, that’s technically true.

But the smut is being purveyed online. And that 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, [LAUGHS] fetishes.

So you can't really judge the smut that is being peddled to that community by the standards of the geographic community in which the pornographer is technically located.

BROOKE GLADSTONE:
You know, it’s just fascinating. We have done a lot on this program about Second Life and role playing online, but you’re saying that really anybody who does a search that they wouldn't admit to in their ordinary life is, in a sense, playing a role, inhabiting a different person.
WILLIAM SALETAN:
Yeah. And it’s not even clear which one of those is the real person. And I don't even think we need to settle that question. And now we have, with the age of the Internet, this gray area where you’re sort of acting privately. Your spouse doesn't know you’re online searching for the word, “orgy.” But you’re also sort of in public in the sense that you are communing with other people in this anonymous online world.

And now, thanks to Google, we can track you. We may not know who you are exactly, but we know that you people in Pensacola, you’re searching for the word, “orgy.”
BROOKE GLADSTONE:
You know, for years, some members of Congress have tried to craft a Communications Decency Act to ride herd on some of the chaos that goes on online. It keeps getting defeated on First Amendment grounds. But you’re offering a whole new argument against it.
WILLIAM SALETAN:
Yeah. I'm sympathetic to Congress. They really are trying to figure out how to legislate in the world of new media. I think they see the Internet as this frightening new means, for example, for predators to track down children. And, you know, that is a legitimate worry. For some people it is a means of getting to a physical crime. Once there’s a physical crime, you can prosecute it that way.

But for other people, it’s just not. It’s like blowing off steam or it’s where they can live in a fantasy world. It’s like they're living in their own head.

So I think Congress has had trouble just reining itself in and treating this world in a way that it can be perhaps monitored, it can be surveilled, but not prosecuted the way that you would prosecute a tangible crime.

You know, do we want to prosecute virtual crime? Are you then on your way to prosecuting what Orwell called “thought crime?” This is a very difficult world that we need to figure out legally and morally.
BROOKE GLADSTONE:
You also have some more advice to legislators, which amounts to, don't confuse pictures with the real thing and essentially, accept our dual nature, accept hypocrisy.
WILLIAM SALETAN:
This case that we're talking about is just one of a number of cases where we're getting into things that aren't quite real, and they're all of a sexual nature. We have this case. We have the recent case of a federal judge who had a file share and somebody hacks into his family’s computer and finds some dirty pictures. But, you know, he’s treated as though he’s done something when, in fact, it’s just something that’s sitting on a computer.

And then we have a worldwide trend, basically, of legislating against fake child pornography, purely digitally produced stuff. It’s just not real, and it’s being legislated against and prosecuted as though it’s the real thing.

We need to step back. We really need to step back from this and ask ourselves whether we want to treat virtual reality as though it’s the real thing.
BROOKE GLADSTONE:
Will, thank you so much.
WILLIAM SALETAN:
Thank you, Brooke.
BROOKE GLADSTONE:
Will Saletan is national correspondent for Slate.
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