Empirical Lawyering: Community Values and Google Searches

Ever since the Supreme Court's landmark 1957 ruling in Roth v. United States, obscenity trials involve the question of "contemporary community standards." As Justice Brennan wrote in his majority decision:

However, sex and obscenity are not synonymous. Obscene material is material which deals with sex in a manner appealing to prurient interest. The portrayal of sex, e. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. ...It is therefore vital that the standards for judging obscenity safeguard the protection of freedom of speech and press for material which does not treat sex in a manner appealing to prurient interest.

The early leading standard of obscenity allowed material to be judged merely by the effect of an isolated excerpt upon particularly susceptible persons. Some American courts adopted this standard but later decisions have rejected it and substituted this test: whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest.

Lawyers in obscenity cases have long turned to social scientists to try and answer the question of just what does offend "contemporary community standards." My father, William Simon (1930-2000), a sociologist who worked at the Kinsey Institute and studied sexual behavior, did his share of testifying as an expert in such cases.

Today lawyers are getting directly into the game of empirical research, turning to google searches as a handy measure of just what folks in the actual community where the case is being brought, might or might not consider offensive. As described in reporting by by Matt Risen in today's New York Times, the online search engine has become a medium for lawyers to pursue the question of community standards with far greater precision than in the past.

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.” The publicly accessible data is vague in that it does not specify how many people are searching for the terms, just their relative popularity over time. But the defense lawyer, Lawrence Walters, is arguing that the evidence is sufficient 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.

Liberty and Security can be Reconciled

That is the best rhetorical take away point from Justice Anthony Kennedy's majority opinion in BOUMEDIENE v. BUSH No. 06–1195, decided yesterday 5-4.

The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a part of that framework, a part
of that law.

Yes the constitution survives in extraordinary times, but if its to be a tool to surviving those times there has to be a positive role of law in creating security. It is here that Justice Kennedy moves strongly in a direction that has been emphasized by human rights lawyers for some time. Due process is security.

Security depends upon a sophisticated intelligence apparatus and the ability of our Armed Forces to act and to interdict. There are further considerations, however. Security subsists, too, in fidelity to freedom’s first principles. Chief among these are freedom from arbitrary and unlawful restraint and the per­sonal liberty that is secured by adherence to the separation of powers. It is from these principles that the judicial authority to consider petitions for habeas corpus relief
derives.

The Safety Net: Why are we still losing the strands?

One of the background themes in the 2008 Presidential (a theme providing significant help to the Democrats) is the growing national consciousness of how frail the metaphoric "safety net" is that protects ordinary Americans against both routine and extraordinary hazards.

Since the late 1970s a popular revolt against taxes has been promoted on the ground that government wastes your money giving people who don't deserve it, help they don't need. Perhaps the flooding of New Orleans when the levy system failed and government at all levels abandoned the people marks the point where denial was no longer possible.

Yet in the midst of this growing consciousness, and in the most progressive of American cities we are still losing vital pieces of the remaining safety net. Case in point is the St. Anthony Foundation's Marian Residence for Women in San Francisco. As reported in today's SFChron by Marisa Lagos, residence, providing shelter and transition housing for homeless women, is about to close in the face of what the Foundation expects will be the severe challenge of budget cuts and increasing demand.

The shelter opened in 1983, as the first great recession of the Reagan era (and the steepest drop since the 30s) rocked America and revealed the visible homelessness that has been a feature of our urban streets ever since. Resources like the Marian residences are rare. Women, who make up a relatively small fraction of the homeless population, are often the most vulnerable in ordinary shelters. Trapped by poverty, domestic violence, and the appeals of drug escapism, such women increasingly end up being pulled into our jail and prison systems.

According to Lagos this gem of a program is being slashed not because need for it is declining, but because its likely to grow;

The program is just the latest victim in a long line of social programs being cut across the nation because of the worsening economy and the worldwide food shortage.

Francis Aviani, a spokeswoman for the 57-year-old St. Anthony Foundation, said it was a difficult decision for the nonprofit's leaders. By next spring, St. Anthony's also will shutter and sell the Farm, an organic dairy farm in Petaluma that is run by 42 men recovering from drug and alcohol addiction.

St. Anthony's board of directors, faced with more demand, higher food prices and other rising costs, decided in April to shutter Marian Residence and the Farm so the foundation can focus on its core mission - offering basic services such as meals and clothing. "Marian Residence is a very beautiful program," Aviani said, "but it also takes money to run a program of that caliber. We have to brace ourselves for what is around the corner."

Resources like the Marian center stand at the center of a complex web of social problems including mental illness, homelessness, violence against women, over incarceration. If you want to make progress on any of those issues you need to be multiplying the number of Marian centers, not slashing them.

Is it Multiculturalism or just Liberalism?

Elain Ganley of the AP reported last week on a controversy in France over a judge's decision to nullify a marriage base on the wife's lack of virginity.

The bride said she was a virgin. When her new husband discovered that was a lie, he went to court to annul the marriage - and a French judge agreed.

The ruling ending the Muslim couple's union has stunned France and raised concerns the country's much-cherished secular values are losing ground to cultural traditions from its fast-growing immigrant communities.

Much of the controversy seems to arise from the implication that a court in this avowedly secularist country would seem to be giving the force of law to a Muslim social norm. However, the judge seems to have been seeking to apply the spirit of the 19th century French Civil Code.

Article 180 of the Civil Code states that when a couple enters into a marriage, if the "essential qualities" of a spouse are misrepresented, then "the other spouse can seek the nullity of the marriage." Past examples of marriages that were annulled include a husband found to be impotent and a wife who was a prostitute,...

So where does classic (and advanced) liberalism end and multiculturalism (and legal pluralism) begin?

Prop 13: From Public Wealth to Private Excess

When I arrived in California as an 18 year old "Cal" freshman, from my home in Chicago, I could not believe how prosperous and dynamic the state appeared. The landscape was cluttered with gems of the built (and unbuilt!). Situated in the urban metropolis created by San Francisco, San Jose, Oakland, and Berkeley (all of which seemed less tired then my hometown of Chicago), I saw amazing infrastructure, great universities, endless freeways, gleaming rapid transit systems. Beyond the city, an archipelago of jewel like parks beckoned.

At the end of my first year, on June 6, 1978, California voters enacted Proposition 13, the now famous tax cutting initiative that permanently limited the state's ability to raise funds through the property tax (taxes were rolled back slightly and then capped at 2% growth no matter how high the property values soared until the property actually changed hands). [Read John Wildermuth's reporting on the 30 year anniversary in the SFChron) It was like a switch being thrown. Nothing sudden of course, but over the next thirty years that robust public California would shrivel and shrink (accept prisons but thats a story for my other blog). Our public infrastructure, whether freeways or universities, has at best remained frozen (only 1 new UC in 40 years).

The state has not become poorer in aggregate, but more of that money remains in private hands (just as intended by the anti-tax crusaders). The result is a landscape brimming with over-built houses, endless big box stores, and giant SUVs. Thirty years later the present is not only more garish, but the the future economy we are creating is one based on low wage service and construction jobs.