Photo by Flickr user Robert Crum. Used under a Creative Commons license.

A 1973 Supreme Court ruling set the ground rules for obscenity prosecutions in the United States based not on an absolute or nationwide definition (since, Justices agreed, such a definition isn’t practical and might not be possible) but on “contemporary community standards.”

At the time “obscenity” might have been a vague concept but “contemporary community” was pretty easily defined. Large swatches of the now-ubiquitous interstate highway system were still under construction, airplane tickets were scarce and bloody expensive, even cable stations rarely had more than five or six channels and most of those were just local stations with better reception, long-distance phone calls were also bloody expensive, there was “top 40” radio and syndicated news but most stations were strictly local, and a bookstore magazine rack was considered huge if it offered more than 40 titles. Most people lived within a day’s drive of their parents, and very often never moved from the towns they were born in. Outside of a handful of metropolitan areas, in 1973 “contemporary community” in other words meant “within the city or county limits.”

More particularly, if a prosecutor was going to bring an obscenity charge he (most lawyers and almost all prosecutors were men back then) could be pretty sure a) what “contemporary community” and b) “community standards” meant in his community.

Twenty two years after that, in approximately the summer of 1995, the internet happened. Airlines had been deregulated and flights to Europe could be had for the cost of a 1973 flight in the same state. The nationwide telephone monopoly had been broken up and long-distance calls became so cheap that cell phones, then “no bigger than” a soda can, threw in long-distance for free. Newspapers were already in decline but “boutique” magazine publishing had exploded. Car mileage was way up, the 55-MPH national speed limit had been lifted, the economic upheavals of the 1970s — “stagflation,” union busting, the near irrelevance of factories and therefore factory jobs, Ronald Reagan’s infamous admonition to say “fuck you” to your family and community and “vote with your feet” — made Americans more mobile both in terms of travel and relocation. Pressure from Ted Turner’s cable empire had finally broken down the broadcast/rebroadcast oligopoly and now hundreds of channels were available, many never “originally” broadcast over airwaves at all. The definition of “contemporary community” was becoming a lot more fluid.

Some thirteen years after that, here in 2008, the internet is ubiquitous and “contemporary community” may be even more ambiguous than “obscenity” was in 1973.

As we may or may not be about to find out… Via non-sex blogger Kevin Drum of The Washington Monthly it looks like Defense attorney Lawrence Walters has an idea for an obscenity trial in Pensacola, Florida.

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.”....“Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” said Mr. Walters, the defense lawyer. Using the Internet data, “we can show how people really think and feel and act in their own homes, which, parenthetically, is where this material was intended to be viewed,” he added.

Read the quote in context here.

I’m not sure Walter’s strategy is going to work — prosecutors in the case evidently plan to argue “how many times [community members] doesn’t necessarily speak to standards and values” and therefore that the popularity of sex-related web searches in the local community has no bearing on whether the defendant was in violation.

And it’s possible the prosecutors might prevail. Many similar self-described “Bible belt” communities have standards, church dicta, and often laws against alcohol sale and consumption… while overall consuming no less alcohol than communities with nominally “lower” standards.

My strong feeling, though, is that those kind of two-tone “standards” are set so high not in hopes that anyone will stick to them but in order to cover up what’s actually… pretty normal activities with the consequence that, too often, the scandal isn’t the activities themselves but the sometimes extraordinarily brutal attempts to a) punish and b) circumvent and c) avoid punishment for circumventing and d) so on.

I happen to believe there probably are contemporary community standards for Pensacola. Google just happens to be just one inadvertent but universal demographic tool for determining what those standards actually are!

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Oh yeah, quick anecdote: Also back in 1973 there was approximately one well-known manufacturer of specifically-designed running shoes: Adidas. A few years later then-upstart Nike, which believed itself a hopeless niche player in the running-shoe market. Then at a trade show Adidas, in a confident show of clout, announced their annual running shoe sales worldwide… which the Nike execs in attendance realized was barely equal to their own monthly sales! Nike, who had been playing defensively and afraid they’d be crushed, had been the world leader in sales.

Rather than continue trying to follow Adidas’s genteel, Eurocentric, and slightly leisure-class-activity footsteps Nike began aggressively pushing their own everybody-can approach. (For better or worse considering their occasional forays into gangbagger fashions and sweatshop manufacturing, but also positively their active promotion of exercise as a universal recreation.)

And my point being that if Pensacola, or any other community, based their policy on what is and, especially, what policies work instead of what they wish was and what policies make them feel really good** there might wind up being far less overall harm. And a lot fewer silly prosecutions.***

I’m obviously not a lawyer, and the contingencies of bringing prosecution can necessarily resemble watching sausage being made. So there may be more to this case than meets the eye, even in Pensacola. This post, however, isn’t about the merits of the particular case but about determining, acknowleging, and therefore establishing actual community standards so we can create more grounded-in-reality policies that match those standards.

[** Hmm, reactive policy as porn… sounds about right —fl]

[*** Evidently the pornographers in question “had to be” charged under racketeering statues because… um… the statute of limitations on what they’d actually done had expired. And what they’re charged with actually doing was paying actors and models which in Florida is evidently considered misdemeanor prostitution. As is, evidently, hosting routine non-child porn. Conspiring to pay actors and models and then posting the results, on the other hand, is a felony with a longer statute of limitations and so… that’s what they’re being prosecuted for. —fl]