A New Political Truth: Exposure to Sexually Violent Materials Causes Sexual Violence

The Meese Commission gave this nation a new political truth that in years to come will undoubtedly play an important role in federal or state efforts to restrict or suppress speech having pornographic content. Legislators, policymakers and the general public will quote and rely upon the Commission's key finding that exposure to sexually violent materials "bears a causal relationship" to acts of sexual violence, unaware that the principal drafter of the Report played down this confidence in a separately published academic essay. Tags: Pornography, Sexual violence, Meese Commission, Attorney General’s Commission on Pornography, Schauer, First Amendment, Freedom of speech, Suppression of speech [pg575]** The Meese Commission gave this nation a new political truth that in years to come will undoubtedly play an important role in federal or state efforts to restrict or suppress speech having pornographic content. In 1986, the Report of the Attorney General's Commission on Pornography reached a "unanimous and confident" conclusion: "[S]ubstantial exposure to sexually violent materials as described here bears a causal relationship to antisocial acts of sexual violence and, for some subgroups, possibly to unlawful acts of sexual violence." FN1 The key phrase is "bears a causal relationship." It is an extraordinarily significant claim, a milestone in the history of the first amendment. Busy courts, lacking time to scrutinize the evidence and considering the Report an authoritative finding by a Presidential Commission, may cite it as evidence in cases involving the suppression of speech. The rhetorical power of the Commission's use of causality is underlined by considering that if the Commission had employed the term "correlation," its finding would have been humdrum. A "correlation" might simply signify that people who are predisposed to committing acts of sexual violence also enjoy seeing sexually violent materials. Such an unnewsworthy finding would hardly have justified the ballyhoo and expense associated with Meese's effort. Instead, the finding of a causal relationship may, in years to come, encourage legislators, policymakers and bureaucrats who want to restrict access to sexually violent materials. FN2 They will cite [pg576] the Commission's finding of causality as a fact, without need of further proof. Because the Commission's finding was the result of a political process and not, strictly speaking, a legal process, lawyers may underappreciate its significance, and law journals may discount its importance. But a "finding" of a "commission" is apt to carry considerable weight with courts that despair of listening to "expert witnesses" on the question of whether exposure to the sexually violent materials complained about causes acts of sexual violence that are outside the protection of the first amendment. Courts may conclude that if such exposure actually causes acts of sexual violence, the materials themselves are outside the scope of the first amendment. FN3 Hence, examining the Commission's reasoning to see whether its "finding" is intellectually and morally supportable is of critical importance. This Article undertakes that examination. How did the Commission justify its finding of "causation"? One searches its Report in vain; nothing indicates what "causation" means or whether any of the vast amount of cited evidence, mainly scientific papers, actually supports a finding of causation.FN4 To be sure, the