1 John Mackie, The Cement of the Universe (Oxford: Clarendon Press, 1974).Google Scholar

2 Consider, for example, the relationship to the concern about danger to human life that is presupposed by a total ban on handguns. Some say that a society should not be concerned about the proliferation of handguns per se, but should be concerned with and should punish only the dangerous use of a handgun. Others, while admitting that the possession of a handgun is not itself dangerous, see attempted diminution of the widespread possession of handguns as a legitimate regulatory means toward the end of reducing injury and death. Central to this debate is the causal connection between the incidence of handgun possession and the incidence of unlawful injury and death.Google Scholar

3 United States Department of Justice, Final Report: Attorney General's Commission on Pornography (Washington: United States Government Printing Office, 1986) (hereinafter referred to as “Report”).Google Scholar

4 Id., at 326.Google Scholar

5 I should note, however, that I do not consider this the occasion for disgorging all of my views about all of the Report. As most readers will know, I was one of the eleven commissioners of the Attorney General's Commission on Pornography. (Because, along with almost all of the other commissioners, I was contacted about participation when William French Smith was Attorney General of the United States, and because it was Attorney General William French Smith who created the Attorney General's Commission on Pornography, and because at no time during the activities of the Commission was Attorney General Edwin Meese III involved in any of our hearings, processes, or deliberations, I will refrain from using the term “Meese Commission,” a term I first heard when it was part of the testimony before the Commission of the attorney for Penthouse magazine. In addition to the factual inaccuracy of using Attorney General Meese's name in this connection, I also avoid it because I think it unfair to him that his name is besmirched by being associated with the Attorney General's Commission on Pornography.) And as many readers will know, 1 was the principal drafter of Part II of the Report, containing the Commission's analysis and conclusions. (This part is Part I of the edition privately published in 1986. The description of the part as “overview” in the privately published edition is the work of the editor of that edition and not of the Commission.) With respect to the balance of the Report, largely staff-written without specific Commission approval of actual language or detailed substance, I will say nothing further here. With respect to Part II, I will deal with some but not all of what is contained in it. As a consensus document, it is not necessarily an accurate rendition of what I personally think about each and every issue. But it is a document to which I willingly subscribed as the product of a collective deliberative process of which I was a part. This article can be taken in part as a less collective explanation of a collective document, and in part as a statement of my own views. Where these two differ, I will attempt to explain the differences.Google Scholar

6 See Catherine MacKinnon, Feminism Unmodified: Discourses on Life and Law (Cambridge: Harvard University Press, 1987); Laura Lederer (ed.), Take Back the Night: Women on Pornography (New York: William Morrow & Co., Inc., 1980); Andrea Dworkin, Pornography: Men Possessing Women (New York: Perigree Books, 1981); Andrea Dworkin, Against the Male Flood: Censorship, Pornography, and Equality, 8 Harv. Women's L.J. 1 (1985); Catherine MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv. C.R.-C. Lib. L. Rev. 1 (1985); Catherine MacKinnon, Not a Moral Issue, 2 Yale L. & Policy Rev. 321 (1984); Cass Sunstein, Pornography and the First Amendment, 1986 Duke L.J. 589; Melinda Vadas, A First Look at the Pornography/Civil Rights Ordinance: Could Pornography Be the Subordination of Women?, 84 J. Philosophy 487 (1987); Note, Anti-Pornography Laws and First Amendment Values, 98 Harv. L. Rev. 460 (1984). The most prominent legal embodiment of this definition is the Indianapolis Anti-Pornography Ordinance (defining pornography as “the graphic sexually explicit subordination of women, whether in pictures or in words, that also includes one or more of [various specific forms of subordination or humiliation]”), declared unconstitutional in American Booksellers Ass'n v. Hudnut, 771 F.2d 323 (7th Cir. 1985), aff'd without opinion, 106 s. Ct. 1172 (1986).Google Scholar

7 This is all made clear in the Report, at 227–232. The Commission could not and did not choose its own name, and as a result the Report should be read not through the lens of what the Commission was called, but instead in light of what the Report actually says.Google Scholar

8 See generally Frederick Schauer, The Law of Obscenity (Washington: BNA Books, 1976); Schauer, Frederick, Speech and “Speech”—Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, 67 Geo. L.J. 899 (1979); Frederick Schauer, Response: Pornography and the First Amendment, 40 U. Pitt. L. Rev. 605 (1979); Frederick Schauer, Reflections on “contemporary Community Standards”: The Perpetuation of an Irrelevant Concept in the Law of Obscenity, 56 N. Car. L. Rev. 1 (1978).Google Scholar

9 395 US. 444 (1969) (per curiam) (holding, in a case involving racist and anti-Semitic utterances by a member of the Ku Klux Klan, that such utterances may be regulated consistent with the First Amendment only when they “are directed to inciting or producing imminent lawless action and [are] likely to incite or produce such action”).Google Scholar

10 432 U.S. 43 (1977) (per curiam). See also Collin v. Smith, 578 F.2d 1197 (7th Cir.) (upholding First Amendment right of American Nazi Party to march in Skokie, Illinois), stay denied, 436 U.S. 953, cert. denied, 439 U.S. 916 (1978).Google Scholar

11 466 U.S. 429 (1984) (unanimously holding that taking the existence of an interracial remarriage into account in a custody determination violated the equal protection clause of the Fourteenth Amendment).Google Scholar

12 I mean that the themes are plainly depicted, not that there is necessarily any sexual explicitness involved. Thus, Luke's rape of Laura on General Hospital is clearly an act of sexual violence, even though the depiction displays neither penetration nor sexual organs.Google Scholar

13 In her contribution to this volume, Professor West observes, quite rightly, that the Report far too easily puts sadomasochistic material into the category of the sexually violent. Robin West. The Feminist-Conservative Anti-Pornography Alliance and the 1986 Attorney General's Commission on Pornography Report, 1987 Am. B. Found. Res. J. 681. Her point is well taken. There are powerful arguments for treating such consensual material as fundamentally different in kind, and the Report should have explored this issue. But although West's observations are quite plausible, there are arguments that would go in the other direction. It could be argued, for example, that depictions of even consensual sadomasochistic activities represent an admixture of sex and violence that in today's world is hardly likely to be gender-neutral in impact. That is, the hypothesis that endorsing a close connection between sex and violence will bear more heavily against women than against men is not one I would want to reject out of hand. This aside, however, it is clear that the issues are much more different than the Report indicates. West, however, takes this issue to be of great importance, because to her it is the smoking gun that exposes the feminist-sounding Report as really being the product of “conservatives.” Putting aside the possibility that even “conservatives” might be truly persuaded by feminist arguments, consider West's only other piece of evidence for this conclusion, the individual statements of the commissioners. Only five individual statements even hint at such “conservative” themes, and although one of those statements (that of Dr. Dietz) attracted the assent of several other commissioners who did not offer their own statements, that statement was written by a commissioner who voted on every issue in a decidedly anti-“conservative” manner, and the statement is itself ambiguous as to whether it condemns anything other than that which is violent or degrading to women. But in any event, the analysis and conclusions of the Report were written by someone who does not share those “conservative” views, and the Report does not endorse those views. Quite simply, West's assertion that the Report talks of or endorses “virtue” is false. I can think of no better evidence for this proposition than the fact that the Report has been castigated by conservatives precisely for its failure to view the issue in terms of virtue or morality. Ernest van den Haag, Outlaw Porn, The American Spectator, July, 1987, at 30–32; Terry Teachout, The Pornography Report That Never Was, 84 Commentary (no. 2) 51 (August 1987). Only by assuming, from where I do not know, that the Report does not mean what it says can it in any way be taken to adopt the view that virtue, or anything like that, should be the principle on which we decide whether to be concerned about some sexually explicit material. To read the views of some of the commissioners into the Report of the Commission, and to confuse the Report's attempts to describe different points of view with the conclusions of the Commission, is simply bad reading of the Report. I note in passing, and with some amusement, that Professor Downs finds the Report to be the product of people “deeply impressed with the radical feminist theory of pornography” who nevertheless wrote the Report in conservative language, Donald Downs, The Attorney General's Commission and the New Politics of Pornography, 1987 Am. B. Found. Res. J. 641, and that Professor West finds the Report to be an example of non-feminist views written with feminist rhetoric.Google Scholar

14 On the general question of the inclusion of the sexually violent in art, see Gubar, Susan, Representing Pornography: Feminism, Criticism, and Depictions of Female Violation, 13 Critical Inquiry 712 (1987). On the relationship between portrayals of sexual violence and particular political stances, see Diana Russell, On Pornography, 4 Chrysalis 12 (1977).Google Scholar

15 Some material of this variety would be included in the Report's category of “nonviolent materials depicting degradation, domination, subordination, or humiliation.” Report, at 329. This category, with which I will not be centrally concerned in this article, has, like all categories, fuzzy edges and problems of boundary maintenance and line-drawing. See generally Frederick Schauer, Slippery Slopes, 99 Harv. L. Rev. 361 (1985). The category, suggested by some of the scientific research and by people such as Dr. Edward Donnerstein and Dr. Neil Malamuth in their oral or written testimony before the Commission, was designed to include depictions such as those of three unclothed and standing men urinating into the mouth of a woman lying on the ground, of women being vaginally penetrated by objects and animals, and of women performing sexual services as part of the job description of, for example, nurses and secretaries. Although there may be definitional problems at the edges (and bear in mind that no legal consequences turn on this category), these and similar examples seem quite clear instances of degradation or subordination or humiliation of women in circumstances lacking nonconsensual violence or the threat thereof.Google Scholar

16 David Hume, Inquiries Concerning the Human Understanding (Selby-Bigge edition. Oxford: Oxford University Press, 1946).Google Scholar

17 Although I do not make repeated forward or backward uses of these designations, they serve as heuristically useful passages between one conception and the next.Google Scholar

18 This is what Hume referred to as “constant conjunction.”Google Scholar

19 For example, Barry Lynn of the American Civil Liberties Union (as reported in USA Today, July 9, 1986), quipped that if exposure to depictions of sexual violence causes those exposed to commit acts of sexual violence, then why didn't the commissioners commit such acts? The answer to Lynn's silly question, of course, is that his question incorporates an absurd view of causation never even hinted at by the Commission, however effective a one-liner for mass media consumption it might be.Google Scholar

20 John Stuart Mill, A System of Logic Ratiocinative and Inductive (London, 1843).Google Scholar

21 Report, supra note 3, at 306–312.Google Scholar

22 H. L. A. Hart and Tony Honore, Causation in the Law (Second Edition. Oxford: Clarendon Press, 1985).CrossRefGoogle Scholar

23 A conclusion stressed at numerous places throughout the Report. E.g., Report, at 361 (referring to legally obscene material as “little more than the tip of the iceberg” in terms of area of concern); Report, at 362 (“thin slice”).Google Scholar

24 Calabresi, Guido, Concerning Cause and the Law of Torts, 43 U. Chi. L. Rev. 69 (1975).Google Scholar

25 id., at 106 (causation in the law serves “to identify those pressure points that are most amenable to the social goals we wish to accomplish”). See also Landes, William and Posner, Richard, Causation in Tort Law: An Economic Approach, 12 J. Leg. Stud. 109 (1983); Shavell, Steven, An Analysis of Causation and the Scope of Liability in the Law of Torts, 9 J. Leg. Stud. 463 (1980).CrossRefGoogle Scholar

26 Moreover, the Calabresian perspective invites us to consider the possibility that some forms of societal pressure will likely bring greater results than others, and that some forms of societal pressure might cost less, in dollars or other terms, than others. Thus, if it were thought that changes in current deficiencies in sex education were more easily remediable and more likely to produce changes in the amount of sexual violence than would reduction in the prevalence of sexually violent messages (and I believe that to be the case), deficient sex education would be considered a cause of sexual violence and the prevalence of sexually violent images would not.Google Scholar

27 413 U.S. 15 (1973).Google Scholar

28 I would worry, for example, about any account of causation that denied the ability to say that no harm was caused to the properly unsuccessful plaintiff in Ocala Star-Banner Co. v. Damron, 401 U.S. 295 (1971).Google Scholar

29 Martin v. Struthers, 319 U.S. 141 (1943).Google Scholar

30 Which is not to say that they do not exist. A good example is Richards, David A. J., Pornography Commissions and the First Amendment: On Constitutional Values and Constitutional Facts, 39 Maine L. Rev. 275, 301–309 (1987).Google Scholar

31 The Report of the Commission on Obscenity and Pornography (New York: Bantam Books, 1970), at 32.Google Scholar

32 Michael Goldstein and Harold Sanford Kant, Pornography and Sexual Deviance (Berkeley: University of California Press, 1973), at 11.Google Scholar

33 Donald Mosher, Freedom of Inquiry and Scientific Consensus on Pornography, September 11, 1985.Google Scholar

34 Report, supra note 3, at 306–335.Google Scholar

35 Id., at 306–320.Google Scholar

36 Note that probabilistic conceptions deal with types of acts, while traditional deterministic causation theory deals with particular actions. In some sense, the divergence between the conceptions exists in part because they serve different purposes in different domains.Google Scholar

37 Patrick Suppes, A Probabilistic Theory of Causality (Amsterdam: North Holland Publishing Company, 1970). See also Patrick Suppes, Probabilistic Metaphysics (Oxford: Basil Blackwell, 1984); Patrick Suppes, Scientific Causal Talk: A Reply to Martin, 13 Theory and Decision 363 (1981).Google Scholar

38 Cartwright, Nancy, Causal Laws and Effective Strategies, 13 Nous 419 (1979).CrossRefGoogle Scholar

39 Papineau, David, Probabilities and Causes, 82 J. Philosophy 57 (1985). See also Papineau, David, Causal Asymmetry. 36 British J. for the Philosophy of Science 273 (1985).CrossRefGoogle Scholar

40 Hans Reichenbach, The Direction of Time (Berkeley: University of California Press, 1956).Google Scholar

41 Salmon, Wesley, Probabilistic Causality, 31 Pacific Philosophical Quarterly 50 (1980). See also Rosen, Deborah, A Critique of Deterministic Causality, 14 The Philosophical Forum 101 (1983); Deborah Rosen, In Defence of a Probabilistic Theory of Causality, 45 Philosophy of Science 604 (1978).CrossRefGoogle Scholar

42 Good, I. J., A Causal Calculus I-II, 11 British J. for the Philosophy of Science 305 (1961).CrossRefGoogle Scholar

43 And there are many others. E.g., Eels, Ellery, Probabilistic Causal Interaction, 53 Philosophy of Science 52 (1986).Google Scholar

44 See Carl Hempel, Aspects of Scientific Explanation (Glencoe, Illinois: The Free Press, 1965).Google Scholar

45 See Blalock, Hubert, Multiple Causation, Indirect Measurement and Generalizability in the Social Sciences, 68 Synthese 13 (1986); Paul Humphreys, Causation in the Social Sciences: An Overview, 68 Synthese 1 (1986). (These articles are part of a generally quite valuable symposium on probabilistic causation.) See also Blalock, Hubert, Causal Inferences in Nonexperimental Research (Chapel Hill: University of North Carolina Press, 1964).Google Scholar

46 I assume in all of my examples that the relevant populations are divided into experimental and control groups by a random process and that the groups are large enough to justify confidence in the results generated.Google Scholar

47 The dilemma confronting researchers here was foreshadowed in Sinclair Lewis' Arrowsmith. If a researcher hypothesizes that a certain drug can cure a certain disease, and if the researcher discovers a group of people with the disease, can the researcher in good conscience withhold what is hypothesized to be a cure from half of those people in order to satisfy the demands of scientific method, even if in the process some people die who would have lived had everyone been given the drug?.Google Scholar

48 Edward Cleary (General Editor), McCormick on Evidence, Third Edition (St. Paul: West Publishing Co., 1984), at 543.Google Scholar

49 Linz, Penrod, and Donnerstein allege that “The Commission seemed unable or perhaps unwilling to acknowledge these limitations.”Linz, Daniel, Penrod, Steven D., and Donnerstein, Edward, The Attorney General's Commission on Pornography: The Gaps Between “Findings” and Facts, 1987 Am. B. Found Res. J. 713. That assertion is false (Report, supra note 3, at 318–319). The two-page statement in the Report at pages 318–319 (and there are others as well) is precisely the acknowledgment of precisely these limitations that Linz, Penrod, and Donnerstein claim is not to be found in the Report. The two pages end with the following statement: “With respect to any experiment of this variety, drawing conclusions requires making assumptions between, for example, measured aggression and an actual likelihood of committing offenses. Sometimes these assumptions are justified, and sometimes they are not, but it is always an issue to be examined carefully.” Similar statements are also contained in the Report, supra note 3, at 325, 333. The striking contrast between what is claimed by Linz, Penrod. and Donnerstein not to be in the Report and what is in fact unmistakably there should give the reader reason for caution in considering the relationship between Linz et al.'s descriptions of other parts of the Report and what is actually in the Report. I sympathize enormously with the extent to which Dr. Donnerstein's work has been misrepresented by those who seek to find a connection between sexual explicitness and sexual violence. See Penthouse Interview, infra note 62, at 180. I sympathize precisely because many of the same people who have attacked Donnerstein for rejecting this use of his work have attacked me, either in my own right or for relying on him, in exactly the same way. See David Scott, The Blurred Distinction Between the Effects of Violent and Nonviolent Pornography, submitted to the Attorney General's Commission on Pornography, May I, 1986. But Dr. Donnerstein's legitimate grievances are ill-served to the extent that he and his collaborators misrepresent what is in the Report every bit as egregiously as their opponents misrepresent what their research shows. In order to distance themselves from anything that looks even close to what their opponents might like. Linz, Penrod, and Donnerstein take out of the Report things that are clearly there (“We note only that the Commission should at least have acknowledged a few of the most important of these criticisms [of moving from laboratory experiments to external validity]”), and put into the Report things that are equally clearly absent (“general conclusion that ‘pornography’ is harmful”; “direct relationship between degrading pornography and acts of sexual aggression”). This misrepresentation of the contents of the Report is a bit surprising, because as the Report itself actually reads (and it has been misread, just as Dr. Donnerstein is misread, by those who would use it to help them make the unsupportable connection between sexual explicitness and sexual violence), it is hardly something that did or would please Donnerstein's opponents.Google Scholar

My irritation with Linz, Penrod, and Donnerstein, even while I continue to admire their work, is exacerbated by the extent to which they themselves have gone far beyond anything the Commission did in generalizing from their controlled experiments to statements about real-world consequences. Not only is Donnerstein an explicit proponent of such generalization, see Leonard Berkowitz and Edward Donnerstein, External Validity is More Than Skin Deep: Some Answers to Critiques of Laboratory Experiments, 37 Am. Psychologist 245 (1982), but he has been quite willing to make generalizing statements considerably less restrained than those made by the Commission. See, e.g., Edward Donnerstein and Leonard Berkowitz, Victim Reaction in Aggressive Erotic Films as a Factor in Violence Against Women, 41 J. Personality and Social Psychology 710, 722 (1981) (aggressive materials “probably more dangerous” than pure erotica); Edward Donnerstein and Daniel Linz, Sexual Violence in the Media: A Warning, Psychology Today, January 1984, at 14–15 (“Researchers have shown … that exposure to even a few minutes of sexually violent pornography, such as rape and other forms of sexual violence against women, can lead to antisocial attitudes and behavior: … If a brief exposure to sexually violent pornography can have these effects, what are the effects of exposure to hours of such material?”). Perhaps most dramatic is the statement that “We have now seen that there is a direct causal relationship between exposure to aggressive erotica and violence against women.” Edward Donnerstein, Erotica and Human Aggression, in Russell Geen and Edward Donnerstein (eds.), Aggression: Theoretical and Empirical Reviews (New York: Academic Press, 1983). Moreover, Linz and Penrod have been particularly active in moving from their scientific conclusions to making recommendations for legal change. Steven Penrod and Daniel Linz, Using Psychological Research on Violent Pornography to Inform Legal Change, and Daniel Linz et al., Bases of Liability for Injuries Produced by Media Portrayals of Violent Pornography, in Neil Malamuth and Edward Donnerstein (eds.), Pornography and Sexual Aggression (New York: Academic Press, 1984). In light of all of this, the nature of Linz et al.'s current charges might have suggested at least as much mea culpa as sua culpa. Alternatively, the nature of their charges might suggest something about what happens to academic inquiry and academic debate when it is too tied up in trying to choose the right side in a public controversy.Google Scholar

50 I refer, for example, to ideas about the underdetermination of theory by evidence (see Williard van Orman Quine, Word and Object [Cambridge: M.I.T. Press, 1960]), The problem of theory-laden observation (see Norman Hanson, Patterns of Discovery [Cambridge: Harvard University Press, 1958]; Mary Hesse, Revolutions and Reconstructions in the Philosophy of Science [Bloomington: Indiana University Press, 1980], the problems involved in searching for a language of scientific observation and theory (see David Papineau, Theory and Meaning [Oxford: Clarendon Press, 1979]), the impossibility of verification of a theory (see Karl Popper, The Logic of Scientific Discovery [London: Hutchinson & Co., 1959]), and about a host of other problems (see, e.g., Thomas Kuhn, The Structure of Scientific Revolutions [Chicago: University of Chicago Press, 2d edition, 1970–1) related to the uncertainties, subjectivities, and indeterminacies of scientific inquiry.Google Scholar

51 See generally Peter Achinstein, The Nature of Explanation (New York: Oxford University Press, 1983); Peter Achinstein (ed.), The Concept of Evidence (Oxford: Oxford University Press, 1983); Clark Glymour, Theory and Evidence (Princeton: Princeton University Press, 1980).Google Scholar

52 And, of course, the fact that evidence is “scientific” is no guarantee of its reliability. Indeed, it is quite likely that non-scientific evidence will be greeted with the initial skepticism it deserves, but that scientific evidence, even bad scientific evidence, will because of its provenance often be given more weight than is justified.Google Scholar

53 376 US. 264 (1964).Google Scholar

54 384 U.S. 436 (1966).Google Scholar

55 Professor Downs, supra note 13, seems not to understand this when he describes as “correlational” any evidence that establishes multiple rather than singular causation. This is simply confused, perhaps because Downs both avoids indicating the conception of causation he employs and fails to distinguish a controlled experiment from a correlational study.Google Scholar

56 In this last example, of course, the magazines read might have no causal effect whatsoever but still be evidence of an inclination towards sexual violence manifested in but not caused by the magazine reading. That is precisely why to me almost all of the correlational evidence in this area is worthless, in both directions.Google Scholar

57 This, of course, is the consequence of current law with respect to material that is legally obscene pursuant to Miller, Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973).Google Scholar

58 E.g., Donnerstein, Edward, Aggressive Erotica and Violence Against Women, 39 J. Personality and Social Psychology 269 (1980); Malamuth, Neil, Heim, Maggie, and Feshbach, Seymour, Sexual Responsiveness of College Students to Rape Depictions: Inhibitory and Disinhibitory Effects, 38 J. Personality & Social Psychology 399 (1980); Malamuth, Neil and Check, James, Penile Tumescence and Perceptual Responses to Rape as a Function of Victim's Perceived Reactions, 10 J. Applied Social Psychology 528 (1980); Neil Malamuth and James Check, The Effects of Mass Media Exposure on Acceptance of Violence Against Women: A Field Experiment, 15 J. Research in Personality 436 (1981); Neil Malamuth, Rape Fantasies as a Function of Exposure to Violent Sexual Stimuli, 10 Archives of Sexual Behavior 33 (1981); James Check and Neil Malamuth, Sex-Role Stereotyping and Reactions to Depictions of Stranger Versus Acquaintance Rape, 45 J. Personality and Social Psychology 344 (1983); Linz, Daniel, Donnerstein, Edward, and Penrod, Steven, The Effects of Multiple Exposures to Filmed Violence Against Women, 34 J. Communication 130 (1984); Neil Malamuth and James Check, The Effects of Aggressive Pornography on Beliefs in Rape Myths: Individual Differences, —J. Research in Personality—(1985). Edward Donnerstein and Daniel Linz, Presentation Paper to the Attorney General's Commission on Pornography, September, 1985; Neil Malamuth, The Mass Media as an Indirect Cause of Sexual Aggression, Presentation Paper to the Attorney General's Commission on Pornography, September, 1985. There is no suggestion that all of the evidence inclines in exactly the same direction. Some experiments, even by the same researchers, would incline somewhat against the causal hypothesis when presented in undifferentiated form. E.g., Joseph Ceniti and Neil Malamuth, Effects of Repeated Exposure to Sexually Violent or Non-Violent Stimuli on Sexual Arousal to Rape and Non-Rape Depictions, 22 Behavioral Research Therapy 535 (1984). The failure to include within Part I1 of the Report specific citations to specific studies properly engendered some criticism. That exclusion was due solely to the insistence by some members of the Commission on the inclusion of particular studies that I as the author of that part found methodologically dubious. The inclusion of nothing was the only practical way in a collective process to avoid endorsing suspect studies. The one exception, the inclusion of a footnote reference to Zillmann in the Report, at 330, was precisely and only an effort to demonstrate that some studies commonly used to support the unsupportable hypothesis that equal and consensual sexually explicit material bears a causal relationship to acts of sexual violence were studies on material that could hardly be called equal and consensual.CrossRefGoogle ScholarPubMed

59 On the short-term problem, see especially Linz, Penrod, and Donnerstein, supra note 49.Google Scholar

60 Insofar as self-reporting of either causation or simple facts is scientifically reliable, some studies go a bit farther. In his presentation before the Commission, for example, Dr. Malamuth noted that “In addition to laboratory measures, we have also assessed naturalistic aggression on the basis of a person's own reports of behavior along a continuum of sexual aggression, including acts that would legally be defined as rape.” Malamuth, supra note 58. Although I tend to discount almost completely much of the self-reporting evidence of causation, there is some indication that it may be more reliable than is commonly believed. See White, Peter, Causal Report Accuracy: Retrospect and Prospect, 23 J. of Experimental Psychology 311 (1987).Google Scholar

61 Report, supra note 3, at 337.Google Scholar

62 The terminology is vital here. In most of their recent work, including their contribution to this Symposium, Donnerstein and others describe, for example, a rape depicted or described non-explicitly as involving violence but not sex. See also Edward Donnerstein and Daniel Linz, Psychology Today, June, 1987. Although I appreciate their desire to prevent their work from being misinterpreted by the Moral Majority (see Penthouse Interview: Dr. Edward Donnerstein, Penthouse, June 1985, at 165), using terminology that treats a rape as empirically and normatively indistinguishable from an assault and battery by one male on another, for example, entails separate but perhaps no less undesirable risks of misinterpretation. Moreover, to describe a rape and an all-male gang fight both as simply “violent” is to make a statement about rape that trivializes the phenomenon of rape in a way I find empirically erroneous and morally reprehensible. But it is clear that what is at issue is terminology, because the Report, Donnerstein, Malamuth, and I all locate the causal factor in extended exposure to endorsing descriptions of sexual violence, regardless of whether those descriptions are sexually explicit or not. The question is only what to call that factor. I prefer to call it what it is, endorsing portrayals of sexual violence without regard to sexual explicitness. Linz, Penrod, and Donnerstein choose to describe the same thing as “violence.” In doing so, they seem once again to be more concerned with avoiding misrepresentation in the popular press and in the political arena than with achieving maximum accuracy. But in this case it is conceivable that their aims might, by trivializing sexual violence in refusing to recognize it as a separate problem, possibly contribute to the very problem they set out to alleviate. But once it is apparent that Donnerstein and his collaborators treat non-explicitly presented rape as “violence” and not “sex.” and that they describe as “violence” what is here described as “sexual violence,” it is equally apparent that any differences of substance rather than of terminology, at least at the level of conclusions and not of recommendations, are at best slight.Google Scholar

63 See, e.g., Donald F. Roberts and Christine M. Bachen. Mess Communication Effects, 32 Annual Review of Psychology 307. 342 (1981) (“However, the general consensus seems to be that there is a positive, causal relationship between television violence and subsequent aggressive behavior.”) Roberts and Bachen's general assessment of the larger issue is also germane: “It is appropriate to describe the state of mass communication research at the end of the 1970s as resurgent. By the end of the 1950s the field was limping along under the burden of the ‘law of minimal effect’—the generalization that the dominant influence of the mass media was reinforcement of the status quo, an effect viewed by many as having little impact. The past decade, however, has witnessed a revival of the view that the mass media exert powerful influences on the way people perceive, think about, and ultimately act in the world.”Id., at 307–308. See also Tannis MacBeth Williams (ed.), The Impact of Television: A Natural Experiment in Three Communities (Orlando, Florida: Academic Press, Inc., 1986); David Phillips, Natural Experiments on the Effects of Mass Media Violence on Fatal Aggression: Strengths and Weaknesses of a New Approach, 19 Studies in Experimental Social Psychology 207 (1986).Google Scholar

64 See generally Mary Hesse, Models and Analogies in Science (Notre Dame, Indiana: University of Notre Dame Press, 1966).Google Scholar

65 I include within my universe of nonscientific evidence all of the correlational evidence, cross-cultural or otherwise, that eliminates the locality problems at the grave risk of opening up the possibility of unexplained and unfound independent causes. See Report, at 315–317. It is of course obvious to everyone that correlation therefore does not prove causation, but it may in some cases provide some evidence of it. With respect to cigarettes and lung cancer, for example, it is possible, as the tobacco companies have been trying to show for years, that some yet-unknown third factor causes both lung cancer and the desire to smoke. Nevertheless, most people, and most scientists, are willing to take correlational evidence of the relationship between smoking and lung cancer as some evidence that smoking causes lung cancer. With respect to sexually violent material, however, most of the correlational evidence is far less reliable, with quite obvious or at least quite likely independent causes, making it impossible to use this evidence for much more than a little bit of the mortar between a few bricks. For my own part, it played no factor in my conclusions.Google Scholar

66 And, indeed, that is part of the larger question about the uses and abuses of scientific research on media effects in general. See, e.g., Willard D. Rowland, Jr., The Politics of TV Violence: Policy Uses of Communication Research (Beverly Hills: Sage Publishing Co., 1983).Google Scholar

67 Report, supra note 3, at 328.Google Scholar

68 Schauer, Speech and “Speech,”supra note 8, at 933. Professor Downs makes a guarded but nonetheless offensive suggestion about my biases with respect to the work of the Commission. Donald Downs, supra note 13. He bases this accusation of prejudice on the fact that I have, without apology, argued that I consider the regulation of obscenity, as defined in Miller v. California, 413 U.S. 15 (1973), constitutionally permissible. He ignores, however, the statement, in the very same article he cites, that I would tell a legislature that it “should refrain from regulation.” Downs' conclusion thus follows from a failure to distinguish the constitutionally permissible from the desirable (I also think it constitutionally permissible to reduce the speed limits on the nation's highways to 45, but I would think it a bad idea, and I do not take my statement about constitutionality as providing much evidence for the proposition that I am not sympathetic to driving at 55 or more) that is commonplace even for beginning students of constitutional law, and from ignoring specific statements in the same article that indicate my opposition to regulation of even the constitutionally permissible. Downs' sloppy scholarship is compounded by his failure to consider the extent to which my support of current Supreme Court doctrine about obscenity is part of a larger theoretical vision of the First Amendment which would exclude other things from coverage as well in order to maintain the strength of the core of the First Amendment. See Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L. Rev. 265 (1981); Frederick Schauer, Codifying the First Amendment: Ferber v. New York, 1982 Sup. Ct. Rev. 285; Frederick Schauer, Public Figures, 25 William and Mary L. Rev. 905 (1984); Frederick Schauer, Free Speech and the Demise of the Soapbox (Book Review), 84 Colum. L. Rev. 558 (1984). And he ignores as well the extent to which I have criticized many Supreme Court rulings, such as Young v. American Mini Theatres, Inc., 427 U.S. 50 (1975), and FCC v. Pacifica Foundation, 438 U.S. 726 (1978), that allow regulation of sexually oriented but not legally obscene materials. Frederick Schauer, Fear Risk, and the First Amendment: Unraveling the “Chilling Effect,” 58 B.U. L. Rev. 685, 715–716 (1978); Frederick Schauer, Response: Pornography and the First Amendment, 40 U. Pitt. L. Rev. 605 (1980). My views in 1985, therefore, were simply that I considered the regulation of legally defined obscenity to be constitutionally permissible but undesirable, and that I considered any form of regulation of any other sexually explicit material, no matter how public and no matter how offensive and no matter how explicit, to be unconstitutional. I would hardly take that range of views to justify even a superficially polite suggestion that 1 had biases against sexually explicit material at the outset of the Commission's work.Google Scholar

69 That is, I read the specific recommendations to be taken in light of the analysis and conclusions in Part II, including the conclusion that there is no evidence of a causal relationship between equal and consensual sexually explicit material and the incidence of sexual violence, and including the lack of any Commission consensus about whether this material should be regulated for any other reason. But I recognize the extent to which this is not uncontroversially obvious, and the extent to which many, including some associated with the Commission, would have interests in different readings.Google Scholar

70 See Schauer, Frederick, The Law of Obscenity, supra note 8, at 164–168. See also Ward v. Illinois, 431 U.S. 767 (1977).Google Scholar

71 I should add that I have no problem with the idea of a civil remedy nor with the real as well as symbolic functions of going after money. To this extent a version of the Indianapolis ordinance that incorporated the third prong of the Miller test might produce a law with exactly the same coverage as the guided constriction of obscenity law I discuss here but with even greater symbolic (and real) effects.Google Scholar