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
60 Federal Communications Law Journal 157 (2008)
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.
"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,"
Federal Communications Law Journal: Vol. 60
, Article 2.
Available at: http://www.repository.law.indiana.edu/fclj/vol60/iss2/2