Over at Slate, William Saletan takes seriously the notion that a community’s Google searches can affect obscenity trials.

Here’s the idea put forth by one lawsuit: Under Supreme Court precedent (Miller), one element affecting speech’s constitutional protection is whether “the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest.” If a lot of people in a given community conduct Google searches for “orgy,” obviously it doesn’t violate their community standards. So a website with orgy films can operate there, without conceding constitutional free-speech protection through Miller.

Saletan’s critique focuses on the difference between public and private morality, a valid point. But an argument I haven’t seen anyone make is this: The test isn’t whether a community thinks certain material is bad, or something you shouldn’t search for. It’s whether the community thinks the material “appeals to the prurient interest.” If a bunch of people are searching for “orgy,” but for prurient reasons (which, no doubt, just about everyone who searches for “orgy” does), that’s no argument that the material isn’t obscene.

Am I missing something?