That's really the first big question I have. I enjoy watermelon. I really do. And I never search for it on the internet. I've looked up 'fruit carving' to see some exotic art people have managed to make with watermelon, but even if I wanted to plant watermelon, I wouldn't go search for that. I'd look up Burpee, the seed company.

I just don't think you can measure community interest in watermelon by the internet search frequency. Yes, Google trends can reveal a change in search frequency that will correlate with a change in interest in the term, but that doesn't necessarily mean that there isn't some completely unnoticed interest that was never captured by Google.

So, people turn to the internet when they want porn. We knew that already. They may not when they want watermelon. They tend to when they want a recipe. They download one or more, try them, write them down and file them away - if they worked. They don't search for apple pie every time they want to bake one (at least, people I know don't).

In short, the entire methodology is ludicrous. Some people may search for the same porn term over and over - daily, perhaps - and that says nothing about the people who eat watermelon or bake pies every day.

This isn't to oppose the notion that there are different communities with different standards. Many websites claim to be 'not safe for work' for various reasons - the sole real reason is that the workplace has certain standards that the local KKK meeting may not, or the local strip club, or the local convenience store magazine rack. So yes, community standards vary from place to place in the community, and from community to community. Semi-public, semi-private, adults only, racially segregated, gender segregated, etc.

What it is to say is that measuring internet search words is a useless strategy for comparing apple pie and watermelons.

I may be misunderstanding your post (which is very possible), but I think that the reason Mr. Saletan used watermelons and apple pie are that they are prototypical examples of "wholesome Americana" (ie: "as American as apple pie") and then comparing that to porn as a prototypical example of "American obscenity". I think a better example would be the searches for "cute puppy pictures" (which can be, and sometimes is, a daily search).

To address your other point, while I do agree with you that different communities have different moral standards, I think the article is talking more directly about the differences (and sometimes hypocrisies) between public and private morality.

Yes, the lawsuit and the article are both trying to make Americans, particularly Floridians, look like hypocrites because, apparently, they search for porn more than watermelons on Google.

My point, if you happened to miss it, is that just because I look for feces in a toilet, I wouldn't mean that I look for feces more than I look for salad - I keep salad in the fridge. If you go around looking at a whole community, there might be someone who always checks the toilets, for various reasons, some of which may be unsavory - but nobody checking the toilet for salad. In short, the entire enterprise of demonstrating communities standards this way is more than tainted or flawed - it is rediculous.

If you want to find hypocrisy, it isn't hard. We can find it. To be a troublemaker, I might suggest starting with local Democrats. ;) But this 'Google' based method isn't the right way and actually doesn't say much about the activity in the community, let alone community standards - or in fact the standards of the people who may be porn addicts, who may be very well disgusted by themselves. The relative search frequency is in itself irrelevent on so many scales.

BenK really enjoys his watermelon.

BenK wrote the following post at 06/27/2008 12:29 PM:

"My point, if you happened to miss it, is that just because I look for feces in a toilet, I wouldn't mean that I look for feces more than I look for salad - I keep salad in the fridge. If you go around looking at a whole community, there might be someone who always checks the toilets, for various reasons, some of which may be unsavory - but nobody checking the toilet for salad. In short, the entire enterprise of demonstrating communities standards this way is more than tainted or flawed - it is rediculous."

This, in my opinion, is a form of semantics. You are making a point, and it seems to me correctly for what it is, that has little to do with Saletan's argument overall - he may have used a lousy analogy here, but his point, as more clearly defined at the end of the article, is that "community standards" for porn on the net are vastly and provably different from those standards within the community in the real world.

Point being, he is not comparing apples to oranges, he is stating strongly that we should not be comparing apples to oranges (what people do on the "internets" versus what they do out in public). Since without looking furthur into the details of the case being used in the article I am assuming he was not perusing this porn in public (maybe he was?) the real point here is not so much one of hypocrisy as it is of different community standards for different kinds of actions (viewing porn on the net, viewing porn in public).

They are thoroughly different (though of course both probably triggering some similar emotions) - they should be considered differently, and we actually do know via Google that the "community standards" are different for each version.

No?

(So I do think Saletan used a couple of bad analogies ...)

The Watermelon argument is both clever and amusing. But it also only considers one perspective. So frequency doesn't work? Fair enough, but that is not all the data we are capable of gathering. And, when you are going to punish someone in a court of law for something, it needs to be a crime. It seems to me that whether or not the defendant is guilty of a crime is the real argument his lawyer is making. If everyone is doing it, then it is unjust to prosecute just one person and call it a day. Calling an everyday activity in a community a crime allows prosecutors to choose whomever they like from the populace and incriminate them. If the practice is that wide spread, then alternate steps need to be taken to remove it from the community as a whole. The ability to choose anyone from a majority of the populace and convict them of a crime is, unsettling. It is also a big part of what the constitution is geared towards preventing.

Agreed.

We need, as a society, to make some decisions about what should and shouldn't be prohibited. It can't be an abortive decision like many libertarians would prefer - 'oh, everything should be allowed, unless it directly causes fleshwounds on the neighbors' - or the alternatives that many liberals or conservatives might imagine - 'anything that fits our idealized view of human nature making assumptions about people being good and nothing that makes people feel badly' or 'anything that was traditionally allowed and nothing that was by some tradition banned.'

We need to have a serious discussion about what makes a good person, what makes a bad person, and how people can be encouraged to be good, discouraged from being bad, and restrained from being downright harmful. Things that are to be forbidden should be forbidden everyone; things that are allowed must be allowed everyone. There is bound to be disagreement but either we let majorities in local communities make the local rules (a federal republic) or we let a few people dictate the rules to the entire nation (as we are doing more and more).

Then we need to take steps to enforce the laws evenly, justly, and without any reservation. No punishment should be on the books that is not meted out in virtually every case for which it would be applicable. By similar token, no law should be on the books that isn't enforceable or being enforced.

Our system these days is broken on many levels and quite political because... we can't reach any sort of consensus on these things. As a result, we can't start to discuss things in this sane fashion, so everything gets done via side routes and indirect means, if at all. This creates a host of negative consequences.

Their methodology is flawed, sure. But your methodology is just as bad. You cannot compare watermellon searches to porn searches. If you want a watermellon, you have to go to the grocery store. You cannot receive one online. There is little reason to search for one on the internet. And if someone was to claim that watermellons offended community standards, it would be perfectly legitimate to show watermellon sales at stores in the area. It would even be legitimate to show watermellon advertising and watermellon gardens in the area. So while the defense is somewhat flawed, it's not totally irrelevant.

So, how about something truly, unquestionably offensive? I probably don't need to stretch to find something you might think is offensive, but let's try a lynching of a black man. That's bound to offend the community standards right? But if I go to a KKK meeting, I might find a bunch of people in hoods discussing it...

And how do you see this as conducive to a sane discussion of the issue at hand? No doubt there are a lot of things discussed at a KKK meeting that the community should find offensive. That does not mean those discussions should be illegal.

We need, as a society, to make some decisions about what should and shouldn't be prohibited.

You imply we have not done that. But obviously we have done that. There are many laws on the books that attest to that fact.

What I'm saying is this:

There are some areas geographically located so that they are within a community but effectively marginal to the community. They may include legal institutions like strip clubs, gay bars, KKK meetings, or other places where things that are actually offensive to the community take place. What this may mean about their legality is up for debate - but when we have anti-obscenity laws that make illegal things that are offensive to the community, studying the rate at which they are consumed at those marginal locations where such things would be sought relative to the frequency at which inoffensive things are sought at those same sources is a useless way of going about determining the standards of offense.

Asking 12 people on the street what constitutes community standards is just as useless.

IMO, the whole notion of community standards is dubious. How is it to be defined? What exactly does it mean? You might as well try to define the community's dietary standards and then call those who don't fit exactly under the bell curve as deviants. Posing the "community" as an accuser leaves no actual person for the defendant to cross examine.

"So, how about something truly, unquestionably offensive? I probably don't need to stretch to find something you might think is offensive, but let's try a lynching of a black man. That's bound to offend the community standards right? But if I go to a KKK meeting, I might find a bunch of people in hoods discussing it..."

What, exactly, is "something truly, unquestionably offensive"? Please provide a description that is without ambiguity and understandable to all citizens. You can't do it.

A picture, (We are not talking about reality here. No one is saying that producers of this porn committed a crime by making it - only distributing it. Owning or making the porn in question isn't a crime, distributing it is), of a man being lynched isn't obscene in all instances. The number of photographs in history books of black people being lynched is legion. In a different situation - say, in a poster advertising a KKK rally - it might be considered obscene, although it probably wouldn't rise to the level where it would trigger an obscenity prosecution.

However, there are some people who - through misplaced empathy, lack of historical perspective or whatever - think that just distributing a picture of a black person being lynched is "obscene" and not protected speech covered by the first amendment.

As unrealistic as it is, these examples describe differing "community standards." Within the same community. The government will try to get as many people who think, or are likely to think, that the porn in question is obscene on the jury. The defense will try to get as many people as they can who aren't likely to think the porn in question isn't obscene on the jury.

This is our system of "justice." Or, as one of my attorney says, "The dog and pony show" that substitutes for justice in America.

However, in cases like this, what people say in public and what they do are often quite different. The defendant is entitled to have a jury that follows the law - jurors that will actually decide the case on what they believe to be acceptable, not what they are pressured into, what they think will embarrass them the least or what they think their pastor thinks about the porn.

[The group dynamic is operative here and extremely important. A juror is more likely to "go along to get along" within the jury in cases like this. Who can blame them? When 11 other jurors say something is obscene, do they really want to be the one, lone hold out? Will they hold out, in the face of peer pressure, or will they give in to the group dynamic? This group dynamic is even more present during voir dire - the process of picking a jury - where potential jurors are answering questions in front of, potentially, hundreds of people and don't want to be thought a pervert by the group.]

It is because of the inherent inability of the jury to accurate represent the "community standard" that the search statistics from Google are important. It represents what the community standard REALLY is. What the community does, everyday, when they aren't in a jury. It is evidence of what the REAL "community standard" is. This evidence must be considered, because it is completely unambiguous. There is no pretense and no group dynamic involved. To do less is to deprive the defendant of his right to fair trial.

I know that some people hold the view that there are no 'community standards;' other people think that there may be some but they cannot be determined; still other people think that community standards exist but that following them is evil (fascist or something).

The belief that community standards are slippery but need to be determined as best possible vs the belief that community standards shouldn't be used as a basis for deciding right and wrong, particularly in cases like 'obscenity', appears to correlate, in my observation, with the belief or disbelief in group loyalty and disgust as moral foundations.

This ties nicely into the recent work in moral psychology which gets to the heart of why people on opposite sides of these divides find it difficult to engage constructively on issues like this.