Which are your sexual morals: the ones you preach in public, or the ones you practice in private?
Thanks to Internet search monitoring, we can now investigate private morals. If we can’t do it household by household, we can do it community by community. This has a direct bearing on obscenity law. It’s turning hypocrisy into a verifiable legal issue.
A case scheduled for trial next week shows how. The defendant is accused of purveying obscene material from a Florida Web site. To be judged obscene, the material has to be found patently offensive or prurient by “contemporary community standards.” According to Matt Richtel of the New York Times, the defense attorney in the case, Lawrence Walters, will use Google Trends to argue that the community’s standards are lower than advertised. Walters “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,’” Richtel reports. (Evidence here.) The point is “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.”
It’s a clever argument. But it assumes that morality is what people do, not what they say. “Time and time again you’ll have jurors sitting on a jury panel who will condemn material that they routinely consume in private,” Walters tells the Times. Thanks to Google, “we can show how people really think and feel and act in their own homes.”
The prosecutor in the case rejects this definition of morality. According to Richtel, he thinks online searches are “not necessarily an indication of, or proxy for, a community’s values.” In the prosecutor’s words, “How many times you do something doesn’t necessarily speak to standards and values.”
That’s a fair point, too. We’re all hypocrites. We want our kids to avoid the mistakes we’ve made and to become better people than we are. We also want improvement from ourselves. Morality’s purpose is to prescribe, not describe. It aspires to something better than our current behavior.
Human reality is complicated. There’s no single you. There’s the you that searches Google for “orgy,” and then there’s the you that condemns Eliot Spitzer. You don’t want adultery and prostitution overrunning your community, even if you like to look at them online.
That’s why the Florida case is more than a titillating gimmick. It’s an early attempt to think through human duality in the age of the Internet. In the old days, there was a private you that lived in your head, a semi-private you that lived in your house, and a public you that lived in your community. You could commit adultery in your fantasies, try bondage with your spouse in the bedroom, and sing about purity in church. The Internet has confused these distinctions. Now the private you can sneak around the semi-private you and become semi-public. (I doubt those folks in Pensacola have talked to their spouses about orgies.) Your fantasies are no longer confined to your head. They’re visible, in the aggregate, on Google Trends.
Which is the real you? Two years ago, when Rep. Mark Foley (also of Florida—what’s with that state?) was forced out of Congress for soliciting teenage boys online, I argued against prosecuting cybersex as though it were “the real thing.” Now I think reality is a bit more complicated. The online world has its own kind of reality, somewhere between private and public. Typing “orgy” into a search engine is less than doing. But it’s more than thinking.
The various levels of activity—the various versions of you—are connected. Picture the guy in Pensacola typing “orgy.” What’s his next step? Does he click on one of the sites that come up? Does he touch himself? Does he find a forum and start chatting? Does he make friends? Does he pick up the phone? From a culture and policy standpoint, it’s sensible to worry that one kind of activity will lead to another. In some cases, that may be a good argument for surveillance. But for prosecution?
Here’s my advice to the courts: The Internet has fundamentally altered the meaning of community. The guy in Pensacola visits international Web sites and belongs to interstate online forums. He lives in multiple communities and follows different standards in each. Maybe he says things in forums that he’d never do in the flesh. Maybe he looks at pictures of things he’d never talk about in forums. Maybe he imagines things in his head that he’d never look for in pictures.
Respect these differences. Don’t equate fake child pornography with the actual use of children. Don’t condemn a judge for “unacceptable behavior” because somebody peeked into his family’s file share and found a few dirty pictures. And don’t judge a porn site operator by the open-air standards of his geographic community. That’s not where he peddles his smut. He peddles it online, where the standards, as we now know from Google, are different.