Issues Bearing on the Legal Regulation of Violent and Sexually Violent Media

JOUrMl of Social Issues, Vol. 42, No. 3, 1986, pp. 171-193

Issues Bearing on the Legal Regulation of Violent and Sexually Violent Media

Daniel Linz University of California. Los Angeles

Steven Penrod University of Wisconsin-Madison

Edward Donnerstein University of California, Sanra Barbara

In this article we consider a number of legal responses to the problem of media violence. We underscore the tension between evidence collected by social scientists and traditional First Amendment Cfree speech) protections, noting several criticisms of media violence research that challenge the use of this research to establish legal harms. The second half of this article covers legal actions against sexually violent materials to which social science research may be relevant. One legal alternative that has been suggested includes establishing liability for a range of social harms sustained to certain groups of persons, namely women, as a result of the proliferation of sexually demeaning images. Even though the courts give some credence to social science evidence concerning the harms of exposure to sexual violence, they are most concerned with balancing the harm done to women as a class against the harm done to the rights of free speech. The courts are currently unwilling to remove First Amendment protections for materials other than those that fall within traditional categories (e.g., obscenity). We suggest that social science research may be most useful in establishing liability for individual injuries sustained indirectly through media portrayals of sexual violence subsumed by traditional definitions of obscenity.

Correspondence regarding this article should be addressed to Daniel Linz, Department of Psychology, Franz Hall, University of California, Los Angeles, CA 90024.

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0022-4537/86/owO-0171~5.00/l 0 1986 The Society for the Psychological Study of Social Issues

172 Linz, Penrod, and Donnerstein

Does Social Science Research on Media Violence Demonstrate Legal Harm?

Several years ago the courts were confronted with an important and novel case involving violence in the media, Olivia v . National Broadcasting Company, Inc. (1978). In Olivia a minor brought a civil suit against NBC claiming that a television drama, Born Innocent, had stimulated certain juveniles to inflict injury on her by an “artificial rape” with a bottle. The suit alleged that the juveniles had viewed a similar artificial rape scene in the television drama and the scene had caused them to decide to perform a similar act against the minor girl. The plaintiffs sought to convince the court that the producer of the media violence should be held legally responsible for a victim’s injury.

The defense attorneys for NBC argued that while it was true that certain forms of speech are not protected by the First Amendment-such as speech directed toward inciting or producing imminent lawless action-the television broadcast of a rape scene did not qualify as speech of this type. Eventually the case was dismissed on the grounds that the violent television depiction was protected speech and thus there were no grounds for the plaintiffs suit.

Ofivia is interesting from a legal standpoint because it raises two provoca- tive questions: (1) When can media portrayals be considered to have incited illegal violent acts? (2) Can social science investigations, such as those summa- rized elsewhere in this issue of the Journal of Social Issues (Huesmann & Malamuth, 1986), be used to establish whether media portrayals incite violence?

In this article we consider a number of legal and policy responses to the problem of media violence. We first note that the evidence collected by social scientists linking media violence to aggressive behavior is probably not sufficient to overturn traditional First Amendment protections. Next, we consider alternative forms of harm such as desensitization to violence through repeated exposure or the development of attitudes following exposure to media violence that facilitate aggressive behavior and the possibility of restricting violent media access for certain groups. We make the point that any decision to ban violent depictions or restrict the viewing of violent depictions to certain persons is a political problem in which the policy maker must weigh the negative consequences of restrictions (limiting personal freedoms) against the benefits (reduced violent behavior). In light of this, we note that the Canadian government is currently involved in a debate about expanding criminal law to encompass more forms of harm and that this is occumng despite limited acceptance of social science research. The second half of this article covers legal actions against sexually violent materials to which social science research may be relevant.

Incitement to Illegal Acts

Over the last 75 years, Supreme Court decisions involving advocacy of harmful or criminal acts have attempted to distinguish between speech advocat-

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ing unpopular ideas and speech actually threatening public safety. During this time the Court has come to reject the idea that any group has the right to suppress speech alleged to have a “bad tendency” to cause “general harm” to that particular group or institution. The final result is that the Court now permits the government to punish speech only when it falls within narrowly defined limits.

In Schenck v . United States (1919)-one of a series of cases arising from prosecution of public speeches advocating opposition to U.S. participation in World War I in which the defendant Charles Schenck published antiwar leaflets urging young inductees to join the Socialist party and work for the repeal of the selective service law-Supreme Court Justice Oliver Wendell Holmes pro- claimed that “the question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that congress has a right to prevent” (p. 52). The “clear and present danger test” as originally formulated allowed the government to punish speech that merely had a tendency to produce lawless or otherwise harmful behavior. In the 1927 subversion case of Whitney v. California, involving the violation of a California criminal law that prohibited the advocacy of violence to change control of industry or to bring about political change, Justice Brandeis articulated a narrower interpretation of the “clear and present danger” test, requiring “either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated” (p. 376). The same basic theme was sounded in the 1969 case Brandenburg v . Ohio involving an attendee at a Ku Klux Klan rally charged with violating an Ohio criminal statute when he advocated taking revenge if the government continued to suppress the white race. The Court ruled that advocacy of subversive action fell outside First Amendment protection only if the speech was “directed to inciting or producing imminent lawless action and is likely to incite or produce such action” (p. 447). Similar language can be found in nonsubversion cases such as Bridges v. California (1941). Clearly this language is aimed at speech posing an immediate and highly likely threat of harm.

Social Science Evidence and Incitement to Illegal Acts

The question of whether or not the link between viewing television violence and harmful behavior that has been established by social scientists is sufficient to meet the “incitement standard” laid down in Brandenburg has been discussed extensively by Krattenmaker and Powe (1978). Although their discussions of this issue is now nearly ten years old, several points of their critique are still perti- nent. To paraphrase these authors: The social science literature must at least demonstrate the following to be within the bounds of the incitement doctrine: (1) The portrayal of violence must result in an identifiable, particularized, and specific harm. Note that most legal scholars also agree that the perceived harm


has to be more than the “shock value” or offensiveness of the material; instead, the material must incite a “tangible” harm. (2) The likelihood of the harm’s occurrence given the inciting depiction must be relatively high.

Krattenmaker and Powe argue that it would be difficult if not impossible to use social psychological evidence to establish an identifiable and imminent harm because of limitations inherent in most scientific investigations. Many of their criticisms are the familiar ones raised by dissenting researchers within the social science community (e.g., Freedman, 1984; Sears, 1986). They include criticisms of the narrow subject population and the artificiality of the laboratory setting, stimulus material, and procedures. In essence, they believe the courts would not be convinced that laboratory subjects really perceive themselves as inflicting harm and that aggressive behavior is somehow indirectly rewarded (or at least not punished) in the laboratory.

In defense of the social science evidence collected to date, Turner, Hesse, and Peterson-Lewis ( 1986) note that several of the criticisms involving laboratory realism have some validity, but even so one cannot completely discount laboratory experiments. More detailed responses rejecting these criticisms have been published elsewhere (Berkowitz & Donnerstein, 1982; Friedrich-Cofer & Huston, 1986). Furthermore, research conducted in naturalistic settings provides alternative paradigms to test the hypothesis that viewing media violence in- creases violent behavior, without several of the problems inherent in laboratory investigations. Most of the studies employing these methods have confirmed the findings obtained in laboratory investigations (e.g., Berkowitz & Macauley, 1971; Huesmann, 1982; Huesmann, Lagerspetz, & Eron, 1984; Lefkowitz, Eron, Walder, & Huesmann 1977; Phillips & Hensley 1984; Singer, Singer, & Rapaczynski , 1984).

It will be interesting to see how convinced the courts will be by the additional data collected since Krattenmaker and Powe’s original critique. Regardless of what new evidence may be available from laboratory and field studies, though, there may be one other insurmountable obstacle to considering media violence under the “imminent harm” standard. It is probably true that a court applying the incitement doctrine to a law prohibiting violent depictions would have to be persuaded that the producers of the media violence were themselves advocating immediate violence or illegal acts through their products (Note, 1984). It is unrealistic to maintain that the producers of this material actually advocate violent attacks on other persons. In fact, in Olivia the defense lawyers for NBC argued that the network did not advocate or intend rape through its broadcast; thus the incitement standard could not be applied. The judge agreed with NBC and the case was dismissed (Liebert, Sprafkin, & Davidson, 1982).

Alternative Forms of Harm

It is possible that harms other than aggressive behavior may result from exposure to media violence. One less tangible harm (e.g., Geen & Thomas,

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1986; Malamuth & Briere, 1986) may be the numbing of viewers’ ability to feel empathy or a reduction in their capacity to be emotionally aroused at the sight of violence. Another less tangible harm may be changes in behavioral “scripts” or attitudes that indirectly affect aggressive behavior (see Huesmann, 1986; Mal- amuth & Briere, 1986; Rule & Ferguson, 1986). As Geen and Thomas (1986) note, an emerging body of research suggests that initial levels of viewer arousal to violence dissipate with repeated media exposure. For example, a study by Thomas, Horton, Lippencott, and Drabman (1977) has shown that children and young adults exposed to an arousing violent program show reductions in skin conductance responses to subsequent portrayals of real-life violence. Thomas et al. also found a negative correlation between the amount of time subjects reported watching television and their physiological arousal to violence. Other research has replicated and extended such desensitization findings (Linz, 1985; Linz, Donnerstein, & Penrod, 1984).

Health care officials are becoming increasingly concerned about the possibility that audiences are becoming desensitized through repeated exposure to filmed violence. At recent conferences on media violence and pornography (Symposium on Media Violence, 1983; Symposium on Media Violence and Pornography, 1984), the U. S. Surgeon General (Dr. Everett Koop) expressed official concern by calling upon researchers to direct their resources to a better understanding of “the dilemma of the detached bystander in the presence of violence” (Symposium on Media Violence and Pornography, 1984). Dr. Koop drew a connection between desensitization to media violence and a failure to respond quickly or empathically to actual emergencies. This suggestion is especially important in light of social psychological research that strongly suggests that the observation of another’s emergency is subjectively and physiologically arousing to the bystander and that this arousal, in turn, is a primary determinant of the latency of intervention (Byeff, 1970; Gaertner & Dovidio, 1977; Piliavin, Piliavin, & Trudell, 1974; Sterling 1977).

Unfortunately, from a legal point of view the existing research provides little guidance as to which types of violent portrayals result in the greatest desensitization effects; thus is provides little guidance about the types of images to be regulated. It may be that viewers are equally likely to become accustomed to portrayals of person-to-person violence (e.g., scenes showing the mutilation of a victim) as to scenes of surgical operations, crime reports, or news of natural disasters. If so, it would imply that the graphicness of the portrayal should be limited regardless of its content. Perhaps repeated exposure to the graphic portrayals of violence contained in news documentaries would result in the same lowered responsivity to emergencies as continual exposure to ‘‘slasher films. ”

Restricting Violent Media Access for Certain Groups One alternative to outright bans on certain forms of violent media or the

prosecution of purveyors of such material is restricting access to this material for


certain groups. If policy makers are unconvinced that exposure to media violence is directly linked to aggressive behavior for most people, they may be more comfortable with bans for certain groups, such as those especially susceptible to imitation effects, or bans for children who should be protected from desensitization or negative attitudinal changes following exposure. As current research illustrates (see Huesmann & Malamuth, 1986), it is becoming increasingly ap- parent thatfor some people, some of the rime, exposure to violence will increase the probability of aggressive behavior. Aggressive behavior following a violent media depiction will most often be mediated by an interaction between exposure to the depiction and a mixture of characteristics of the individual viewer and characteristics of the environment. Some of these intervening variables might include prior history of personal aggressiveness (Liebert et al., 1982); approval or disapproval of media violence by fellow observers (Dunand, Berkowitz, & Leyens, 1984; Grusec 1973; Hicks 1968); availability of a victim after seeing violence, and similarity between available targets and victims portrayed in the media event (Berkowitz & Geen, 1967; Donnerstein & Berkowitz, 1983; Geen & Berkowitz, 1966, 1967); subject anger at the time of the exposure to media violence; the degree to which the viewer believes the media depictions to be realistic (Berkowitz & Alioto, 1973; Feshbach 1972; Geen, 1975); and demo- graphic characteristics such as viewer’s age and sex (Cantor, Zillman, & Ein- siedel, 1978; Collins, Sobol, & Westby, 1981). Each of these variables plays a role in determining whether actual violence will ensue after exposure to media violence, and it is important to establish which types of individuals are most susceptible to media effects.

Based on these research findings, policy makers may be inclined to specify that restrictions on exposure to media violence be limited to certain groups of persons. For example, considering previous research, we might speculate that males with a prior history of aggressiveness-those who might be inclined to interpret the violence as realistic, who view such materials in the company of fellow observers who approve of the violence, and who have immediate access to a victim who is unlikely to retaliate-are most likely to behave aggressively after exposure to media violence. There are two problems with this approach. First, at what point could we be certain that we have taken into account enough of the relevant variables to justify limiting access to the media? Second, even if it were possible to come up with a firm set of types and conditions, there are legal or constitutional problems in any approach that attempts to restrict media violence to certain classes of people.

With regard to the first problem, it may be that only after specifying conditions such as those noted in the previous paragraph (and they are certainly not adequate in themselves) would we be correct in concluding that there would be a relatively high probability that exposure to media violence would result in harmful acts. There are undoubtedly a host of conditions as yet unspecified that


would have to be considered before we could increase the probability enough to justify limiting a particular group’s access to media violence.

Second, most attempts to restrict media violence to certain groups of persons have been fraught with legal difficulties. For example, as a result of governmental inquiries that produced documents such as the report by the Surgeon General’s Scientific Advisory Committee on Television and Social Behavior (1972), the Federal Communication Commission (FCC) established guidelines for children’s programming and advertising. These guidelines called upon the networks to provide programming for children, to make clear separations between program material and commercials, and to eliminate other objectionable practices. In addition, the chairman of the FCC persuaded the networks to agree to adopt a “family viewing hour” plan for prime time program scheduling. The key provision of the family viewing hour guidelines were that the networks not provide ‘ ‘entertainment programming inappropriate for viewing by a general family audience . . . during the first hour of network entertainment programijlg in prime time and in the immediately preceding hour” (National Association of Broadcasters, 1973).

An extensive discussion of the fate of the family viewing hour can be found in Cowan (1979) and Rowland (1983). It will suffice to note Rowland’s observation that what first seemed to be a dramatic vindication of the relevance of social science data for policy decision making instead served to illustrate the limitations of social science findings when applied to public policy. When the policy was put to a legal test, the courts ruled that the family hour was “an impermissible product of government action” (Rowland, 1983, p. 242).

The Decision to Control Media Violence I s a Political Problem

Even if it were possible to demonstrate an unequivocal link between media exposure and antisocial behavior for certain groups of persons with sufficient certainty to satisfy the criteria embodied in the incitement standard, decision makers are still confronted with many problems in formulating legal policies regarding media violence. The low base rate of media-induced criminal acts necessarily means that a policy circumscribing the publication and broadcasting of violent depictions could limit the First Amendment rights of vast numbers of viewers while eliminating relatively small numbers of criminal acts. A ban on certain types of media portrayals would require weighing the benefits of reduced crime against the costs of circumscribing free speech.

Elsewhere in this issue, Rosenthal (1986) has tackled the question of whether media research has demonstrated “significant” media effects on antisocial attitudes and behavior. We are in complete agreement with Rosenthal that the relation between media exposure and aggressive behavior may be “small” when examined in terms of traditional measures of effect size such as correlation

Linz, Penrod, and Donnerstein 178

coefficients, but when examined in terms such as his binomial effect size display (BESD), even statistically small effects can possess substantial social signifi- cance. On the other hand, we must not lose sight of the fact that socially significant effects-even when they are much larger statistical effects than those detected in the media violence research-frequently pose difficult policy dilemmas.

It is possible to imagine that at some point in the future social scientists may be able to predict aggressive behavior fairly accurately. Even under optimal conditions, however, it is unlikely they could explain as much as 50% of the variance in violent behavior. In fact, even if their predictions were 95% accurate, they may still encounter enormous difficulties in actually predicting who will engage in unlawful, hannful behavior because of the relative infrequency of these events.

For the last 30 years, social scientists attempting to predict criminally violent behavior have found it is virtually impossible to predict “low base rate” events without at the same time erroneously identifying many “false positives” (Meehl & Rosen, 1955). Livermore, Malmquist, and Meehl (1968) provide an example of this prediction problem when attempting to predict an extremely violent act such as murder:

Assume that one person out of a thousand will kill. Assume also that an exceptionally accurate test is created which differntiates with 95 percent effectiveness those who will kill from those who will not. If 100,OOO people were tested, out of the 100 who would kill, 95 would be isolated. Unfortunately out of the 99,900 who would not kill 4.995 people would also be isolated as killers. In these circumstances it is clear that we could not justify incarcerating all 5,090 people. If, in the criminal law, it is better that ten guilty men go free than one innocent man suffer, how can we say in the civil commitment area that it is better that 54 harmless people be incarcerated lest one dangerous man be set free?

This problem illustrates the difficulties encountered when base rates are low. Even when predictive accuracy is high, the decision maker can vastly overpredict the number of people who will engage in the undesirable behavior. This problem is most acute in situations where there is pressure to apply sanctions to everyone thought to be “at risk”-whether this means preventively locking up people who are thought to be dangerous or depriving large numbers of people access to the media.

It should also be noted that low base rates complicate analyses of effect sizes. Rosenthal’s BESD is predicated on the assumption that one can make median splits in “independent” variables such as media exposure and “depen- dent” variables such as criminal behavior. This assumption is violated when one considers low base-rate behaviors such as criminal violence. In such circumstances even high rates of classification accuracy can yield small effect sizes (because the variance in one or both of the variables is attenuated). For example,

(P. 84)


in the low base-rate hypothetical illustration given by Livermore et al. above, the 95% level of accuracy yields a correlation (+) of .13 compared to the correlation of .90 reflected in a BESD with a 95% correct classification rate (see Rosenthal, 1986, Table 1). In one sense the attenuation of effect sizes when base rates are low underscores Rosenthal’s overall point. Small effect sizes can imply socially significant effects. However, the critical problem with low base-rate behaviors is not the magnitude of the relationship between the predictors and the predicted behavior (whether indexed by effect sizes or classification accuracy), but the rates of overprediction. Overprediction problems can arise even without low base rates.

Consider the example offered by Rosenthal (1986, Table 5), which reflects an r of .12 between childhood aggression and adult criminality, and assume that half the sample of 200 will be arrested for a crime. We still must question what sanctions we would be prepared to invoke against the 100 individuals whose childhood aggression scores are above the median. Are we prepared to deny all 100 persons access to selected media in order to prevent 56 arrests? Are we prepared to deprive all 200 individuals in order to prevent 100 arrests? The problem is further compounded if we abandon the unrealistic assumption that half the exposed individuals will be arrested and examine a more realistic base rate for violent criminal behavior.

When we talk about invoking “protective” actions (including criminal sanctions against purveyors of certain messages) that might deprive persons of the freedom to listen or watch whatever they choose, we must also recognize that we deprive many persons of their rights while helping only the relatively few individuals who would be harmed by the individuals imitating violent media. Even if we assume the courts would eventually tolerate regulation of media on broader grounds than preventing criminal violence-such as blunted emotional sensitivity or the formation of antisocial attitudes-policy makers will still be confronted with balancing the social benefits of regulation against the social costs (the loss of the right to view a wide variety of media depictions). Policy makers have to make a political decision about which harms will be tolerated in American society. Social science evidence may be informative about the causal relationships between media exposure and antisocial behavior, and may help to identify the magnitude of those relationships, but the research does not help decision makers to determine the proper weight to give to the social costs and benefits of policies designed to regulate media exposure. This is especially evident in recent rulings concerning the Indianapolis antipornography ordinance discussed in the following section. In this case, the courts were faced with the possible harms accrued to women-both as a class and individually-by the presence of pornography in American society, against the harms arising from limitations of freedom of speech.

180 Llnz, Penrod, and Domerstein

The Canadian Approach

In contrast to the legalistic approach in the United States, which has empha- sized defining the harm that results from speech as narrowly as possible, at least some Canadian officials seem willing to extend the scope of criminal law into the regulation of violent media despite the lack of conclusive empirical evidence of “physical harm effects.” It should be noted that, until recently, Canada did not have a national constitution and to American-style First Amendment that specifi- cally prohibits abridgments of speech. This may be one reason why discussions of legal actions concerning alternative forms of harm that might result from media exposure are somewhat more common in Canada than in the United States. For example, the Fraser Commission, formed several years ago to study the effects of and make recommendations concerning explicit sexual materials, has considered a number of legal solutions to the problem of violence in the media (Special Committee on Pornography and Prostitution, 1985).

Although it was suggested to the Fraser Commission that the term obscene as used in the Canadian Criminal Code could easily include more than just sexual material, the commission refused to add yet another meaning to the already confusing term. Instead, they recommended that the federal government of Can- ada ‘ ‘should give immediate consideration to studying carefully the introduction of criminal sanctions against the production or sale or distribution of material containing representations of violence” regardless of sexual content (Special Commission, 1985, p. 262). The commission’s political position was a compro- mise between a staunchly conservative position that holds that there “should be a complete identification of the criminal law of the state with the ‘moral law’ [and] the extreme libertarian view that the criminal law should intrude only when physical harm had been caused by one person to another” (p. 22).

The commission maintained that criminal laws regarding media depictions should not be confined to tangible harms caused by one individual to another. Instead, a criminal law aimed at media violence should be a reflection of the values of society. Thus, the commission explicitly endorsed the view espoused by an earlier law reform commission (Law Reform Commission of Canada, 1977) that

the criminal law serves partly to protect against harm but more importantly to support and bolster social values. Protection against harm it seeks to achieve through deterrence, rehabilitation and-most successfully-prevention. Support of social values it manages through “morality play” technique-by reassuring-by educating and above all by furnishing a necessary response when values are threatened or infringed. (Special Com- mission on Pornography and Prostitution in Canada, 1985, p. 23)

Legal Responses to Violent Pornography

Many of the problems in establishing legal control over the dissemination of violent materials would not be encountered if the violent materials were also


sexually explicit. Many of the depictions of sex and of sex paired with violence discussed in this volume (see Malamuth & Briere, 1986) could theoretically be handled through existing state obscenity statutes. Under the Miller standard (Miller u. California, 1973), if a constitutionally adequate state statute prohibiting the distribution of obscene materials is used as the basis for prosecution, and if the local jury is prepared in light of community standards to judge the seized materials obscene and to convict the defendant, it is plausible that a community can stem the flow of these materials. However, such scenarios may require the presence of highly assertive district attorneys and juries. One example of this combination of an aggressive prosecutor and supportive juries was reported in Atlanta, Georgia, where a local prosecutor successfully closed nearly all X-rated movie houses and adult bookstores (Beck & Smith, 1981). Nonetheless, the Atlanta experience appears relatively unusual. A post-Miller survey of prosecutors found that fewer jurisdictions were prosecuting for obscenity after Mif - fer, and the overall number of prosecutions had declined (Leventhal, 1977). At the same time the majority of prosecutors reported that obscene materials were increasingly available in their communities.

In fact, dissatisfaction with the relative ineffectiveness of current state obscenity laws in curbing the proliferation of pornographic materials was one of the factors that spawned the recent Attorney General’s Commission on Pornogra- phy, which has recommended tightening existing state obscenity statutes. The commission, established in 1986, considered testimony from social scientists, clinicians, and citizens (Attorney General’s Commission on Pornography, 1986). In its final report the commission concluded that depictions of violence in a sexually explicit manner are likely to increase the incidence of sexual violence. These conclusions were primarily drawn from the consideration of empirical evidence collected by social scientists. Among the many recommendations for the justice system and law enforcement agencies recommended by the commission were: all states should amend their obscenity statutes so as to conform to the more strict standard outlined in Miller v . California, states should make second obscenity offenses punishable as a felony, and the Department of Justice should create an obscenity task force to assist U. S. attorneys in the prosecution of obscenity cases.

Pornography as a Civil Rights Issue

Dissatisfaction with the ineffectiveness of current obscenity standards has movitated other antipornography actions. Feminists in Minneapolis, bolstered by the research findings on sexual violence (see Donnerstein 1980a, b; Donnerstein & Berkowitz 1981; Donnerstein, Linz, & Penrod, in press; Linz, Donnerstein, & Penrod, 1984; Malamuth & Briere, 1986), by testimony from incest and domes- tic abuse victims, and by testimony from social workers and clinicians, urged the


city council to declare pornography a violation of women’s civil rights. The measure ultimately failed in Minneapolis but was passed by the City-County Council of Indianapolis. The Indianapolis Council made the following declaration:

Pornography is a discriminatory practice based on sex which denies women equal opportunities in society. Pornography is central in creating and maintaining sex as a basis for discrimination. Pornography is a systematic practice of exploitation and subordination based on sex which differentially harms women. The bigotry and contempt it promotes, with the acts of aggression it fosters, harms women’s opportunities for equality of rights in employment, education, access to and use of public accommodations, and acquisition of real property; promote rape, battery, child abuse, kidnapping and prostitution and inhibit just enforcement of laws against such acts; and contribute significantly to restricting women in particular from full exercise of citizenship and participation in public life, including in neighborhoods. (Indianapolis and Marin County, ordinance. 1984)

Based on these findings, the city-county council passeda general ordinance that amended the “Human Relations and Equal Opportunity” code of Indianapolis and Marion County, Indiana, so as to give “victims” of pornography (including “any woman acting on behalf of all women”) the right to bring civil actions against distributors of pornographic materials (see Appendix).

The Legality of the Indianapolis Ordinance

Almost immediately after the Indianapolis ordinance was passed, a group of plaintiffs, which included the American Booksellers Association and the Asso- ciation of American Publishers, filed suit against the major of Indianapolis in the U.S. Southern District Court of Indiana, claiming that the law would unconstitutionally restrict free speech (American Booksellers Association v. Hudnut, 1984). The Southern District Court ruled that the Indianapolis ordinance was indeed an unconstitutional restriction of free speech. The court noted that while speech such as “the lewd and obscene [Miller v. California, 19731, the profane, the libelous and insulting or ‘fighting’ words [Chaplinsky v. State of New Hampshire, 19421 or child pornography [New York v . Ferber, 19821” does not receive First Amendment protection, the ordinance was attempting to restrict speech that falls outside these categories (American Booksellers Association v . Hudnut, 1984). Consequently, the court ruled the ordinance unconstitutionally vague and overbroad. Furthermore, the district court ruled that the establishment of a governmental committee to make findings and conclusions, including the requirement that a defendant cease distributing or publishing while the decision is being arbitrated, is an unconstitutional form of “prior restraint” (e.g., Freed- man v. State of Maryland, 1965). In September of 1985, the U.S. Court of Appeals for the Seventh Circuit affirmed the Southern District Court’s decision. In February 1986, the U. S. Supreme Court upheld the Seventh Circuit Court’s ruling that the ordinance was unconstitutional.


What Harms Is Society Willing to Tolerate?

What is especially interesting about these decisions is that the courts did not disagree with the premise of the legislation, founded partly on evidence from social psychological experiments on sexual violence, that pornographic depictions of violence toward women and depictions of subordination of women tend to perpetuate subordination. In fact, as the Seventh Circuit Court noted, “this subordination [may in turn lead] to lower pay at work, insult and injury at home or even battery and rape on the streets” (American Booksellers v. Hudnut. appeal, 1985, p. 8). In this regard, they likened pornography to other forms of speech that promote hatred and bigotry such as manifestos by the Ku Klux Klan or even violent programming on television.

Though the courts recognized that harmful effects are likelx to arise from materials such as these, they concluded that the materials are nonetheless all protected by the First Amendment. According to the Seventh Circuit Court:

Racial bigotry, anti-semitism, violence on television, reporters’ biases-these and many more influence the culture and shape our socialization. None is directly answerable by more speech, unless that speech too finds its place in the popular culture. Yet all is protected speech, however insidious. Any other answer leaves the government in control of all of the institutions of culture, the great censor and director of which thoughts are good for us. (p. 9)

In other words, what the courts have made clear is that the harms resulting from exposure to sexual violence in the media are not as devastating to society as harms that might be incurred if the government were to attempt to regulate it in any manner other than through existing obscenity laws. The courts conclude that the harm done to society as a whole by restricting additional forms of speech is greater than the harms to the individual groups of persons who are suffering discrimination.

The danger, according to the courts, of accepting sex discrimination as a more compelling state interest than First Amendment protections, is that it may open the door for any legislative body to regulate speech concerning nearly any group in society. Thus, the Southern District Court maintains:

If [this court] were to accept the defendants’ argument-that the State’s interest in protecting women from the humiliation and degradation which comes from being depicted in a sexually subordinate context is so compelling as to warrant the regulation of otherwise free speech to accomplish that end-one wonders what would prevent the City-County Council (or any other legislative body) from enacting protections for other equally compelling claims against exploitation and discrimination as are presented here. Legislative bodies, finding support here, could also enact legislation prohibiting other unfair expression-the publication and distribution of racist material, for instance, on the grounds that it causes racial discrimination, or legislation prohibiting ethnic or religious slurs on the grounds that they cause discrimination against particular ethnic or religious groups, legislation barring literary depictions which are uncomplimentary or oppressive to handi- capped persons on the grounds that they cause discrimination against that group of people, and so on (American Booksellers Association v. Hudnut, 1984, p. 43)


What the social scientist contemplating the value of research on violent media effects must bear in mind is the fact that, no matter how compelling the data linking violent pornography to antisocial attitudes and behavior, the courts view the question as a legal and political-moral one, and only tangentially as an empirical one. The Southern District Court makes this point quite clearly in its discussion of the social psychological evidence entered as evidence in the Indi- anapolis hearings:

[The] defendants argue that there is more than enough “empirical” evidence in the case at bar to support the City-County Council’s conclusion that “pornography” harms women . . . it is not the Court’s function to question the City-County Council’s legislative finding. The Court’s solitary duty is to ensure that the ordinance accomplishes its purpose without violating constitutional standards or impinging upon constitutionally protected rights. (p. 46)

Even if scientists could agree that there is unequivocal empirical evidence that exposure to particular forms of pornography would result in a recognizable harm, the U.S. courts may still not decide that additional regulation beyond the traditional restraints contained in the criminal obscenity statutes are permissible.

It is instructive in light of these recent American decisions to compare the policies for the regulation of violent pornography being considered by the Cana- dian government. The Fraser Commission has come to a very different set of conclusions about the regulation of this material, although it considered exactly the same evidence concerning a link between exposure to violence against women and harmful behavior.

The Fraser Commission recommended that pornography be regulated according to a three-tiered system. The first tier of regulation would criminally sanction child pornography. For this material the purveyor could not defend himself by claiming that the material had artistic, scientific, or educational merit. The second tier of regulation would involve material in which physical harm or abuse is simulated in a sexually explicit context-material that the commission has labeled “sexually violent and degrading pornography” (p. 265). Finally, the third tier of material, consisting of “visual pornographic material” defined as material that includes portrayal of vaginal, oral, or anal intercourse, masturba- tion, touching of breasts or genital parts of the body, or the “lewd” exhibition of genitals would merit criminal sanction only in “very narrow” circumstances (p. 270); these circumstances would be primarily ones in which the material was displayed without proper warning or sold to minors.

The commission’s justification for sanctions involving the second tier of material-violent pornography-is important, because within it there is a broader recognition of the types of “harms” that violent pornography may cause, and perhaps a more equitable balance between these alleged harms and those that may arise from the restricting of free speech.

As we noted above, the Fraser Commission has seriously considered that


criminal law may extend beyond sanctions against demonstrable tangible harms to individuals, into the protection of social values. Additionally, the commission maintains that the Canadian Charter of Rights and Freedoms ‘‘expressly recog- nizes that certain social values and policies, in particular, equality ‘before and under the law’ and ‘equal protection and equal benefit of the law’ are entitled to both constitutional affirmation and protection, and take their place alongside the traditionally protected freedoms such as freedom of conscience, religion, thought, belief, opinion, and expression” (emphases added). In other words, according to the commission, it may be argued that the right to freedom of expression is protected only in so far as it does not interfere with rights of equality of all persons under the law. If violent pornography promotes the sexu- alization of mistreatment of women its distribution may be criminally sanctioned without significant damage to freedom of expression.

This position has received judicial support in at least one provincial court case (Regina v. Keegsfra, 1984). In this case it was argued that the “hate propaganda” section of the criminal code was unconstitutional because it limited freedom of expression. In rejecting this argument, the court noted that the Charter placed a heavy emphasis on the right to equality and that it did not necessarily provide “an absolute freedom permitting an unbridled right of speech or expression. ” Consequently, the ‘‘promoting hatred” provision of the Criminal Code constituted a reasonable limitation on freedom of expression.

The Fraser Commission endorsed this interpretation of the Charter with regard to certain forms of pornographic representations, in particular “those cases in which the pornographic representation depicts a particular group, typ- ically women, as less than human and their mistreatment as a legitimate subject of sexual stimulation” (p. 267). Canadian society, according to the Commission, has committed itself to values and policies directed toward the equality of the sexes in all political and economic spheres. Violent pornography runs counter to this commitment by communicating the message that one half of the Canadian population is entitled to nothing more than violent abuse for the sexual gratifica- tion of the other half.

Demonstrating Incitement and Instructional Effects in a Civil Case

As we have seen, the primary legal problem with the civil rights approach to pornography (e.g., the Indianapolis ordinance) in the United States is that is operates on the premise of a “sociological harm”--that is, on the premise that pornography harms all women as a class rather than on the premise of individual tangible harms. The Indianapolis ordinance sought to protect women as a group from discrimination and from diminished social status. The courts have concluded that to rule in favor of such an approach would encourage other legislative bodies to create laws limiting unfair expressions such as racial and ethnic slurs.


Governmental bodies, thus unrestrained, would ultimately come to limit many forms of expression now protected by the First Amendment. On the other hand, the Supreme Court and state supreme courts have repeatedly confirmed the constitutional acceptability of state obscenity statutes, so long as they are pat- terned after and do not exceed the Miller prototype. This suggests that if (1) the notion of harm was limited to an individual woman and was physical in nature (rather than based on the proposition that all women are harmed through discriminatory practices), and (2) the material implicated in the harmful act could be considered unprotected by the First Amendment because it was legally judged to be obscene, then some form of civil liability might apply and the recovery of damages might be possible.

In order to undertake such a suit, several legal hurdles would have to be overcome. First the victim or plaintiff (presumably a woman who has been the victim of a violent rape) would have to establish that a harm or injury has occurred (Hilker, 1979; Wade, 1973). This would not be a significant problem if there has been a criminal trial in which it was proved that the victim was raped and the defendant was found guilty. Presumably, this is a harm that society wishes to redress. Next, a defendant must be named. While it would be possible to name the rapist himself as a defendant in a civil suit, the primary defendants in the suit could be the creators, producers, and distributors of particular films.

Any tort suit requires that the plaintiff demonstrate to the jury that there is a causal connection between an ‘‘individual instance (depiction) of damage and an individual instance of damage-causing behavior” (Hilker, 1979, p. 531). For a particular case it is necessary to demonstrate that there is a relationship between a particular message, portrayal, or movie scene, and the harm done to the victim. It is not sufficient merely to assert that since these materials are widely available in the culture, or that because the rapist had access to a wide range of these materials, that an aggressive tendency is built up in people in general and that the rapist’s act was a reflection of this process. This would imply that all or at least an unmanageable number of film producers or directors are liable. Instead, tort liability is most reasonably established where an identifiable message or messages can be located in a particular film or films, and that specific film and persons associated with these materials be named in the suit (Prosser t Wade, 1971).

It is doubtful that the social psychological research or an expert social psychologist witness could help establish the link between a specific movie or scene and a specific harm. One alternative is for the plaintiff to establish general causal links between exposure and behavior, and to demonstrate specific causa- tion in the particular case by satisfying the jury that the harm suffered by the victim closely resembled specific acts protrayed in the film presentation. In other words, it may be sufficient for the plaintiff to demonstrate that the injury resembled in some unique detail a similar rape enacted in the materials to which the


rapist was exposed. This is a difficult task, but as Spak (1981) has noted, the uniqueness of the act is probably the pivotal point for establishing media liability. In Spak’s words, “a relatively commonplace punch in the nose-a gener- ally violent act” (p. 672) can never be directly traced to a specific media presentation. But uncommon acts may be traceable. For example, “murder by means of a ‘magnum’ gun rather than an ordinary gun, assault with a karate blow rather than the more usual punch with a fist, a stabbing with a machete instead of a more mundane knife” (p. 672) may be traceable to a specific media event. [A well-known dramatic example is the incident in which Boston youths doused a woman with gasoline and set her on fire, two days after the presentation of the TV movie Fuzz, which contained a scene involving a “wino” who suffered a similar fate (“Six Youths Burn,” 1973). Conversely, showing that a rape with no unusual characteristics was, in fact, caused by media depictions, could be a significantly more difficult task.

Hilker (1979), in a discussion similar to Spak’s, has observed that claiming a particular harmful act can be traced to a particular media depiction can be thought of as a demonstration of an “instructional” effect. The claim would be that the rapist learned his particular method from certain film materials. The victim might, however, also claim a more general “incitement” effect. It could be asserted that the rapist was compelled or motivated by the materials to more or less reenact what he has learned. Hilker has noted that it may be difficult to prove an incitement effect without first proving an instructional effect. It would probably be very difficult to convince a jury that a rapist derived his provocation to commit a rape from viewing certain materials unless the rape resembled in some unique the way the rape portrayed in the film materials.

The social psychologist could be called to the stand on behalf of the plaintiff to help demonstrate an instructional effect, an incitement effect, or both, provid- ing that there is some causal groundwork laid by the attorney that leads the jury to believe the harmful act and the film depiction were ostensibly related to one another. Of the two effects, however, the social psychologist is probably best able to assist the jury in determining if an incitement effect was present. This is so because none of the data collected to date on the effects of violent pornography, or any violent depictions for that matter, have directly demonstrated that exposure to these materials results in observers learning or mimicking the specific behaviors portrayed in films. Obviously, for ethical reasons, these studies cannot be done. What the research to date has shown is that exposure to these materials may instill in the exposed individual a sufficient degree of motivation to aggress against women in a more general way, and the material may provide the viewer with sufficient psychological means or justification for such aggression. Research on the effects of violent pornography (Donnerstein & Berkowitz, 1981; Malamuth & Check, 1980a, b; Malamuth, Heim, & Feshbach 1980) has provided evidence that a positive victim response will facilitate aggressive be-


havior against females by male laboratory subjects. From these research findings we might begin to construct a profile of what may constitute the most “risky” set of materials-namely, those forms of portrayal that may inspire or instigate an imitation effect.

Summary and Conclusions

We have considered the impediments to the legal and political application of social science research on the effects of media violence on antisocial attitudes and behavior, and the feasibility of banning violent materials, under the incitement to illegal acts exception to the First Amendment. We noted that legal theorists have questioned the value of social psychological research for policy making, because of the lack of generalizability of laboratory investigations and the lack of experimental control of field studies. Although these criticisms may be effectively answered, other impediments may be insurmountable-particu- larly the fact that policy makers require evidence that illegal violent behavior follows exposure to media violence, and that the incitement standard requires that an exhibitor of violence have the intention of causing harm.

Even without these problems the application of social scientific findings to legal policy, is difficult. If regulatory laws are designed to prevent criminal acts and if the base rate of criminal acts among regulated groups is low, then prediction models based on social psychological variables will tend to “overpredict” the number of individuals who will commit an illegal violent act. The question that policy makers must then ask is, Are we prepared as a society to deprive all persons, or even some persons, of their right to view forms of violent material if only a very small percentage of these individuals will become criminally violent?

In the case of sexual violence, there are fewer legal impediments to the direct use of empirical research than for violence devoid of sexual content. These materials may already be deprived of First Amendment protection. However, the courts have been unwilling to expand on traditional definitions of obscenity ahd have rejected definitions advocated by many feminists, writers, and legal scholars. Efforts to codify feminist views of pornography as a form of discrimination based on sex have been explicitly rejected by the U.S. courts, on the grounds that society’s concern for women’s equality does not transcend more fundamental concerns about free speech. The Canadian approach, at least as embodied by the Fraser Commission, tries to balance equally the rights of women with the traditional concern for free speech. Note that both the U.S. and Canadian approach are predicated less on social science evidence than on prevailing social values. Ironically, the American courts seem to accept the empirical findings but refuse to yield regarding the First Amendment. In contrast, the Canadian response has been to maintain that the violent pornography “harms” women, despite reserva- tions about the value of the social science data.


Given the legal problems encountered with material not already excluded fiom First Amendment protection in the United States (e.g., obscenity), perhaps the most useful contribution the social scientist can make is to assist in tort liability, in cases where a tangible harm has already been demonstrated (such as a rape case in which a defendant has been convicted). Here social science data on the facilitation of antisocial attitudes and aggression after exposure to violent pornography may be instrumental in helping victim recover damages.

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Appendix

The Indianapolis and Marion County ordinance that amended the “Human Relations and Equal Opportunity” code was signed into law by the mayor of Indianapolis on May 1, 1984. In all likelihood, the Indianapolis City-County Council supported this ordinance because of their dissatisfaction with the in- ability or unwillingness of many prosecutors to pursue pornographers under the already-established obscenity laws. In fact, this ordinance is taken nearly ver- batim from an earlier ordinance that had been vetoed by the mayor of Min- neapolis, which defined pornography as a practice that discriminates against women. The proposed measures were not designed simply to ban materials that would be considered obscene under laws currently instated in Indiana and the rest of the United States. Instead, the ordinance was an attempt to codify the feminist conception of pornography articulated by Catherine MacKinnon (1985) and An- drea Dworkin (1985) as the sexually explicit subordination of women through words and pictures that associate women’s pain and physical abuse with sexual pleasure.

The antipornography ordinance adopted in Indianapolis (Indianapolis, 1984) is as follows:

Pornography shall mean the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of the following:

(1 ) women are presented as sexual objects who enjoy pain or humuliation; or (2) women are presented as sexual objects who experience sexual pleasure in being raped;

or (3) women are presented as sexual objects tied up or cut up or mutilated or bruised or

physically hurt, or as dismembered or truncated or fragmented or severed into body parts;

(4) women are presented being penetrated by objects or animals; or ( 5 ) women are presented in scenarios of degradation, injury, abasement, torture, shown

as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual;

(6) women are presented as sexual objects for domination, conquest, violation, exploitation, possession, or use. or through postures or positions of servility or submission or display.

The ordinance made the following discriminatory practices unlawful: ( 1) “trafficking in pornography,” defined as the “production, sale, exhibition or


distribution of pornography; (2) “coercion into a pornographic performance,” which included “[cloercing, intimidating or fraudulently inducing any person . . . into performing for . . . pornography . . .”; (3) “Forcing pornography on a person,” including “any women, man or child or transsexual in any place of employment, in education, in a home, or in any public place; (4) “[a]ssault, physical attack, or injury of any woman, man, child, or transsexual in a way that is directly caused by specific pornography.”

A woman who is aggrieved by trafficking in pornography has the right under the ordinance to file a complaint “as a woman acting against the subordination of women” with the office of equal opportunity against the “per- petrator(s), maker(s), seller(s), exhibitor(s), or distributor(s)” of the pornography. Once a complaint alleging a discriminatory practice has been filed, the ordinance stipulates that an investigation be undertaken by the governmental office that would normally inquire into discrimination cases. Report of the result of the investigation would then be made to a panel of three persons who would then determine if there was a reasonable cause to believe the respondent had violated the statutes. When a reasonable cause for action is formed, the board may either attempt to resolve the dispute informally or hold public hearings. If a discriminatory practice is found to occur the aggrieved party would be entitled to financial compensation through the courts.

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