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

I. 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. …