The Two-Step Evidentiary and Causation Quandary for Medium-Specific Laws Targeting Sexual and Violent Content: First Proving Harm and Injury to Silence Speech, Then Proving Redress and Rehabilitation Through Censorship‪.‬

I. INTRODUCTION Buried deep in its June 2007 judicial rebuke and disapproval of the Federal Communications Commission's ("FCC") recent policy decision to punish television broadcasters for airing isolated and fleeting expletives, (1) the United States Court of Appeals for the Second Circuit in Fox Television Stations, Inc. v. FCC made a seemingly minor and inconsequential evidentiary observation. (2) The appellate court wrote that the FCC's edict in 2004 to rein in such language (3) "is devoid of any evidence that suggests a fleeting expletive is harmful, let alone establishes that this harm is serious enough to warrant government regulation." (4) Contending that "[s]uch evidence would seem to be particularly relevant today when children likely hear this language far more olden from other sources than they did in the 1970s when the Commission first began sanctioning indecent speech," (5) the two-judge majority of the Second Circuit openly questioned whether there was really any problem to begin with (6) and concluded that the FCC had "failed to explain how its current policy would remedy the purported 'problem' or to point to supporting evidence." (7)