The Standard of Proof

Porn Studies > Meese Report Table of Contents

In dealing with these questions, the standard of proof is a recurrent problem. How much evidence is needed, or how convinced should we be, before reaching the conclusion that certain sexually explicit material causes harm? The extremes of this question are easy. Whenever a causal question is even worth asking, there will never be conclusive proof that such a causal connection exists, if "conclusive" means that no other possibility exists. We note that frequently, and all too often, the claim that there is no "conclusive" proof is a claim made by someone who disagrees with the implications of the conclusion.

Few if any judgments of causality or danger are ever conclusive, and a requirement of conclusiveness is much more rhetorical device than analytical method. We therefore reject the suggestion that a causal link must be proved "conclusively" before we can identify a harm.

The opposite extreme is also easily dismissed. The fact that someone makes an assertion of fact to us is not necessarily sufficient proof of that fact, even if the assertion remains uncontradicted. We do not operate as a judge sitting in a court of law, and we require more evidence to reach an affirmative conclusion than does a judge whose sole function might in some circumstances be to determine if there is sufficient evidence to send the case to the jury. That there is a bit of evidence for a proposition is not the same as saying that the proposition has been established, and we do not reach causal conclusions in every instance in which there has been some evidence of that proposition.

Between these extremes the issues are more difficult. The reason for this is that how much proof is required is largely a function of what is to be done with an affirmative finding, and what the consequences are of proceeding on the basis of an affirmative finding. As we deal with causal assertions short of conclusive but more than merely some trifle of evidence, we have felt free to rely on less proof merely to make assertions about harm than we have required to recommend legal restrictions, and similarly we have required greater confidence in our assertions if the result was to recommend criminal penalties for a given form of behavior than we did to recommend other forms of legal restriction. Were we to have recommended criminal sanctions against material now covered by the First Amendment, we would have required proof sufficient to satisfy some variant of the "clear and present danger" standard that serves to protect the communication lying at the center of the First Amendment's guarantees from government action resting on a less certain basis.

No government could survive, however, if all of its actions were required to satisfy a "clear and present danger" standard, and we openly acknowledge that in many areas we have reached conclusions that satisfy us for the purposes for which we draw them, but which would not satisfy us if they were to be used for other purposes. That we are satisfied that the vast majority of depictions of violence in a sexually explicit manner are likely to increase the incidence of sexual violence in this country, for example, does not mean that we have concluded that the evidence is sufficient to justify governmental prohibition of materials that both meet that description and are not legally obscene.

It would be ideal if we could put our evidentiary standards into simply formulas, but that has not been possible. The standards of proof applicable to the legal process preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt-are not easily transferred into a non-judicial context. And the standards of justification of constitutional law-rational basis, compelling interest, and clear and present danger, for example-relate only to the constitutionality of governmental action, not to its advisability, nor to the standards necessary for mere warnings about harm. Thus we have felt it best to rely on the language that people ordinarily use, words like "convinced," "satisfied," and "concluded," but those words should be interpreted in light of the discussion in this section.

Porn Studies > Meese Report Table of Contents

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