"When the government defends a regulation on speech as a means to ... prevent anticipated harms, it must do more than simply posit the existence of the disease to be cured. It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."

Judges have been repeatedly unconvinced that the claimed harms of violent images and words are demonstrably real and that the proposed regulations would alleviate them. "Every court that has addressed this issue has held that violent content is Constitutionally protected speech," noted Michael Bamberger, one of the country's preeminent First Amendment lawyers.44 Supporters of laws that restrict minors' access to sexual media have argued that when the safety of children is at stake-"if just one child is saved"-some speech is expendable. A Constitutional right is abstract, they say, while violence is real. This argument comes up against the many different meanings of violence, the role of government in a democracy and the false promise that censorship protects children.

Often, violent-media regulation is deemed unconstitutional on the grounds that it is too "vague"-that is, a reasonably intelligent citizen can't figure out when she's about to break the law, and a government official has too much leeway to decide she has broken it. Which, for example, would you want the government to find "excessively," "gratuitously" or "obscenely" violent? The tale of a man who kills his father, has sex with his mother, and then gouges out his own eyes? That's Sophocles' Oedipus Rex. How about Shakespeare's Titus Andronicus, in which two rogues murder a man, rape his wife, hack off her hands and tongue, and then are avenged by her father, who slits their throats, pours their blood into the bowl held between his daughter's stumps, butchers them, grinds their bones, cooks them and feeds them to their mother? The original Faust, published in 1587, climaxes when the Devil rips the doctor's soul from his body, splattering flesh and brain. Fairy tales, too, are routinely peppered with dismemberment, arson, and child and animal abuse.

According to the Center for Media and Public Affairs' "Merchandizing Mayhem," a survey of the incidence of violent scenes in popular culture in 1998, the top-grossing film with the most scenes of "serious violence" was the Academy Award-winning Saving Private Ryan. In fact, this film accounted for fully 30% of all such scenes on the big screen that year. Could the same artistic goals have been achieved by a less graphic film? Maybe. But perhaps the intense realism of the violence was necessary to portray the sacrifices the Allied troops made to defeat fascism during World War II.

Or consider the video game War in Heaven, an advertised "Christian" product, in which players take the part of either angels or devils, brutally smiting their enemies in a fight to the finish. War in Heaven is no more or less violent than many parts of the Bible itself.

Free-speech advocate Jim d'Entremont notes that "films that are reviled for their violence-like Bonnie and Clyde, The Wild Bunch, Carrie, Natural-Born Killers, or Basketball Diaries-are often films that critique the violence that our society foments." These films depict "bad" violence to demonstrate the evils of violence. Which is to say, violence in these films is used in the service of the good.

Inevitably, judgments about what is good and bad violence are matters of taste and individual morality. Defining bad violence, said Motion Picture Association of America President Jack Valenti, is "like picking up mercury with a fork."

Two "child-protective" bills introduced in Congress in 1993 defined violence as "any act that has as an element the use or threatened use of physical force against the person of another, or against one's self, with intent to cause bodily harm to such person or one's self." Using that definition, Ken Bums' Civil War and the Three Stooges could be found harmful to minors, as well as the National Football League games and, as a committee of the New York City Bar Association argued, "an overwhelmingly large percentage of our culture."" Pondering the obstacles to regulating violence in media, Chief Judge Harry Edwards of the U.S. Court of Appeals for the Washington D.C. Circuit wrote that he could conjure no definition of violence that would safely guide regulators to "distinguish between harmless and harmful violent speech," or "fix rules designed to ferret out gratuitous violence without running the risk of wholesale censorship of television programming."

In Bill v. Superior Court (1983) a mother sued the producers of the "gang movie" Boulevard Nights for liability in the death of her daughter, who was shot while walking from the theater to the bus stop after the film. The plaintiff claimed the filmmakers were negligent in failing to provide audiences protection from antisocial types the movie would attract, people who might feel inspired to perpetrate a copycat crime after seeing violence on screen. The California appellate court stated that such liability would have a chilling effect on any other producer who might depict such subject matter, though no one could know what effect it might have on a particular viewer. In ordering a summary judgment in favor of the producers, the judges defined the role of the state as follows:

"When speech is of such a nature as to arouse violent reaction on the part of the lawless, the first obligation of the government is to maintain the peace and enforce the law ... not to silence the speaker."