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Document Type

Article

Publication Date

3-2008

Publication Citation

60 Federal Communications Law Journal 157 (2008)

Abstract

This Article argues that legislators today that want to suppress First Amendment-protected images of sexual and violent conduct conveyed on a specific medium face a steep two-step evidentiary burden. First, they must prove actual harm caused by the speech in question as it is conveyed on a specific medium--not the aggregate injury from viewing all media generallythat is sufficient to overcome free-speech rights. Second, even if sufficient harm from viewing violent or sexual content on a particular medium is proven by social science research, the government then must prove that its legislative remedy-its censorship of the harmful expression conveyed via a specific medium-actually causes the problem to be ameliorated in a significant way. This Article concentrates on the under-explored implications of the second step (proving efficacy of the remedy) and, specifically, on the key problem of underinclusiveness that courts increasingly identify with medium-specific remedies. In addition, the Article analyzes the puzzle of precisely how much (and what kind of) evidence must be demonstrated in order to satisfy courts that the problems medium-specific laws are designed to address are, in fact, materially remedied.

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