The two-step evidentiary and causation quandary for medium-specific laws targeting sexual and violent content: first proving harm and injury to silence speech, then proving redress and rehabilitation through censorship.

• Author: Calvert, Clay

1. INTRODUCTION II. PROVING REMEDY AND REDRESS OF SPEECH-CAUSED HARM THROUGH CENSORSHIP: CAUGHT BETWEEN UNDERINCLUSIVE REMEDIES AND OVERBROAD LAWS III. THE BROADER PROBLEM OF PROVING REDRESS OF HARMS: WHAT--AND HOW MUCH--EVIDENCE WILL SUFFICE? IV. TOO LITTLE, TOO LATE? A CALL FOR THE END OF THE MEDIUM-SPECIFIC REMEDY I. INTRODUCTION

   Buried deep in its June 2007 judicial rebuke and disapproval of the Federal Communications Commission's ("FCC") recent policy decision to punish television broadcasters for airing isolated and fleeting expletives, (1) the United States Court of Appeals for the Second Circuit in Fox Television Stations, Inc. v. FCC made a seemingly minor and inconsequential evidentiary observation. (2) The appellate court wrote that the FCC's edict in 2004 to rein in such language (3) "is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation." (4) Contending that "[s]uch evidence would seem to be particularly relevant today when children likely hear this language far more olden from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech," (5) the two-judge majority of the Second Circuit openly questioned whether there was really any problem to begin with (6) and concluded that the FCC had "failed to explain how its current policy would remedy the purported 'problem' or to point to supporting evidence." (7)

   This reasoning certainly supports the appellate court's conclusion that the FCC's sudden policy shift to fining broadcasters for airing fleeting expletives after many years of having tolerated (if not ignored) them (8) is "arbitrary and capricious under the Administrative Procedure Act." (9) But the implications of the court's logic about the lack of evidentiary support for proving harm or injury caused by speech are far more profound and free-speech friendly than their application either to the narrow facts of Fox Television Stations (10) or to the FCC's general statutory authority to regulate indecent (11) and profane (12) expression. (13) Indeed, this Article contends that the appellate court's thinking about the government's burden of providing evidence of real harm and actual injury caused by offensive messages on television is equally as applicable to several other current efforts to regulate sexual and/or violent content conveyed on other media. For instance, the same evidentiary problems arise repeatedly today when state and local government entities across the nation attempt to legislatively limit minors' access to video games depicting violent images. (14)

   Perhaps more importantly, the Second Circuit's observation regarding the common use of expletives today in society--that "children likely hear this language far more often from other sources" (15)--not only demonstrates the inherent difficulty the government faces on the causation question of parsing out and controlling for factors other than media influences that could cause harm, but it suggests an often fatal problem that plagues the regulation of sexual and/or violent content on any specific medium like video games, the Internet, or television. Specifically, the predicament is that such medium-specific laws directed at censorship of a particular type of content (16)--violent or sexual imagery, for example--are almost by definition underinclusive remedies (17) that fail to materially cure or solve whatever problem supposedly exists. (18) For instance, a statute that regulates and limits minors' access to violent video games because such images and plots ostensibly harm the children who play those games fails to cure whatever problem may exist from viewing violence generally because minors still can watch violent images on television (19) and the Interact, (20) in the movies (21) and, for many kids, in the real world (consider, for instance, child abuse, spousal abuse in which a father batters a mother, schoolyard fights and bullying, street crime, brawls during sporting events, etc.). (22) U.S. District Court Judge James J. Brady, in fact, adopted this underinclusiveness line of reasoning when, in August 2006, he enjoined on First Amendment grounds Louisiana's statute "prohibiting and criminalizing the sale, lease or rental of video or computer games that appeal to a minor's morbid interest in violence." (23) Judge Brady, after observing that video games constitute merely "a tiny fraction of the media violence to which modern American children are exposed," (24) wrote that:

   [T]he [Louisiana] Statute leaves these other media unaffected. Under the Statute, for example, a minor could be legally barred from buying or renting an "M"--rated video game containing violent content, but the same minor could legally buy or rent the movie or book on which the video game was based. Courts have noted that this type of facial underinclusiveness undermines the claim that the regulation materially advances its alleged interests. (25) The social reality that underlies such judicial logic is that sexual and violent imagery is pervasive today in our popular culture, (26) and laws that single out for censorship particular forms of media--television, video games or the Internet, for instance--that convey such content are simply futile efforts that fail to resolve anything when other media (and culture more generally) are left unregulated. As the late Justice William Brennan pointed out more than two decades ago, when First Amendment interests are at stake, a "one-step-at-a-time analysis [of a problem] is wholly inappropriate." (27) Similarly, current Justice Antonin Scalia has noted that a "law cannot be regarded as protecting an interest of the highest order, and thus as justifying a restriction upon truthful speech, when it leaves appreciable damage to that supposedly vital interest unprohibited." (28)

   This Article thus contends that the quandary facing legislators today who want to suppress First Amendment-protected mediated images of sexual (29) and violent conduct (30) is twofold, boiling down to proof of causation on two very different levels. First, the government must prove actual harm caused by the speech in question as it is conveyed on a specific medium--not, in other words, the aggregate effect or collective injury from viewing all media violence generally--that is sufficient to overcome First Amendment free speech rights. (31) Second, even if sufficient harm and injury from viewing violent or sexual content on a particular medium can be proven by social science research or some other method, the government then must turn around and prove that its legislative remedy--its censorship of the allegedly harmful expression conveyed via a specific medium--actually causes the problem to be reduced, mitigated, or otherwise ameliorated in a significant way.

   Put more bluntly, two knotty questions now face governmental entities in these circumstances: 1) Proving Harm: Can they prove that a specific form or type of content conveyed on a specific medium actually causes harm, independent of other causal and contributory factors, that is serious enough to overcome constitutional concerns?; (32) and 2) Proving Redress: Can they prove that the censorial remedy they adopt actually reduces or remedies the problem in a material way?

   The importance of these twin questions cannot be overestimated today. In particular, states across the nation seem fixated on limiting minors' access to violent images and plots in video games, (33) with each effort ultimately proving unconstitutional. (34) The FCC, apparently undaunted and undeterred by such growing judicial precedent against regulating images of violence, wants the government to grant it new authority to regulate images of violence on broadcast, cable, and satellite television, (35) and it believes that "developing an appropriate definition of excessively violent programming would be possible." (36) At the same time that it attempts to open up a new front on televised violence, the FCC appears ready to continue its battle on indecent and profane content, regardless of the appellate court's recent ruling in Fox Television Stations. (37)

   But it is more than just video game and television media for which governmental entities want to censor sexual or violent expression. For instance, Congress already has made several flawed and failed efforts to regulate minors' access to non-obscene, sexual content (38) on the Internet. (39)

   All of these medium-specific efforts--targeting media including video games, television, and the Internet--are animated by an alleged (and politically popular) desire to protect children from supposed harms caused by sexual and violent expression, with some members of Congress even calling for tens of millions of dollars in federal appropriations to conduct further research on the potential harms to children from such media content in 2007. (40) The twin questions of first proving harm and then proving redress thus are likely to be repeated again and again in the coming years as legislators keep up their sustained assault on mediated images of sexual and violent content.

   The purpose of this Article is not to resolve whether or not social science research can ever definitively prove via empirical evidence actual harm caused by a particular form of mediated content that is sufficient to survive judicial scrutiny. (41) It also is not the Article's goal to question or quibble with the value of the application of communication research and theory to such questions (42) or to reject the idea that communication research can cast helpful light on legal issues. (43) Professor Alan Garfield of Widener University School of Law, in fact, addressed in an excellent 2005 law journal article both the pros and cons of courts relying on (and requiring) empirical evidence and social science research in attempts to prove harm to minors who watch violent...