Has South Holland 'Banned' Pornography?
IFI Media Watch
12/7/2006 10:30:00 AM
By David E. Smith, IFI Executive Director
 | "Faith, Family, Future"
South Holland's proud motto.
(Click to enlarge photo.) |
Tuesday evening, Chicago NBC's local news program featured a story about the village of South Holland's (Illinois) contractual agreement with the local cable company (now Comcast) which precludes channels that feature any film rated 'X' or any channel which is primarily devoted to films that are obscene under community standards.
The story, reported by Lisa Parker, of the station's Target 5 consumer-investigative unit, portrays this agreement (which is now more than 10 years old) as a case of clear-cut censorship.
To view the story, click HERE.
I found a number of problems with Target 5's "banned" pornography and "censorship" angle. First of all, much of the so-called "adult" content on cable falls under the category of obscenity, which means it is illegal to market it in the first place. Obscenity -- like slander, libel, perjury, false advertising, conspiracy, yelling "fire" in the crowed theater, contempt of court, copyright violations and child pornography -- does not fall under the First Amendment's "free speech" umbrella of protection. (The US Supreme Court, in its 1957 decision, Roth v. United States said that obscenity is not within the area of constitutionally protected speech or press.)
Furthermore, the U.S. Supreme Court has made a clear distinction between private possession of obscenity and the public market place:
1969 U.S. Supreme Court Decision, Stanley v. Georgia -- private possession of obscenity is protected by First Amendment; but private means private.
1973 U. S. Supreme Court Decision, Miller v. California -- obscene materials are NOT protected by First Amendment when brought into the public market place. This landmark decision explains what is prosecutable in the public market place and gives each community the right to apply community standards -- in the form of a three part test -- to all pornographic material brought to a jury or a judge.I. "Taken as a whole, would the average person believe the material appeals to the prurient interest in sex - shameful, morbid or lustful?
II. Would the average person believe the material contains sexual conduct in a patently offensive way?Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.
Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals. III. Taken as a whole, would a reasonable person believe the material lacks any serious literary, artistic, political or scientific value?" In Miller the Court said that it was constitutional for different communities to articulate different community standards in obscenity cases. "To require a State to structure obscenity proceedings around evidence of a national community standard would be an exercise in futility," Chief Justice Warren Burger wrote. This is exactly what South Holland did here.
Then there is the problem identified by Ms. Parker herself when she acknowledged in her own Target 5 report that this supposedly "banned" content (much of it illegally obscene) can be obtained by satellite, over the Internet, and purchased in video form. Well it's clear to me that if the content in question is available in other venues or forums, it has not been "banned." Moreover, true censorship by governmental bodies (and that is what we are talking about here) involves the suppression of the various forms of speech by criminalizing or regulating expression in every venue. Regulating cable content does not fit this definition.
 Ironically, Ms. Parker and Target 5 may be guilty of a form of censorship themselves by omitting the moral and/or conservative viewpoint on this issue. The story included an interview with Harvey Grossman, Legal Director for the Illinois ACLU, and a South Holland resident -- both of whom cry "foul." Target 5 chose not to have anyone rebut the "censor" accusations or address the moral concerns and effects of obscenity in a community like South Holland. In fact, in her wrap-up of the story, Ms. Parker went out of her way to tell viewers-- and any approaching South Holland residents-- that the ACLU is interested in pursuing this issue.
Officials in South Holland worked out this agreement, in part, to "protect [community] standards and values." Those values are spelled out in the village's motto, which proudly proclaims "Faith -- Family -- Future". Why do Target 5, Ms. Parker, and the ACLU want to change that?
If local taxpayers and parents, through their elected representatives, reject the idea of sponsoring pornography and its negative influences through a cable franchise agreement, shouldn't that be enough? After all, we are not talking about a muncipality's ban on foie gras or cooking oil -- that would be ludicrous -- err, wouldn't it?
Read More
Visit the South Holland Web site to read the full statement regarding on-demand cable programming.
Village Blocks Comcast On Demand To Stop Porn
Resident Calls Decision 'Censorship'
http://www.nbc5.com/target5/10469583/detail.html
 CHICAGO -- Some say it has revolutionized the way we watch television. Instead of one-size-fits-all programming, on-demand cable services allow viewers to pick and choose what they want to watch, and when they want to watch it.
That is, unless you live in the village of South Holland, Ill.
In the small suburb of South Holland, many residents have Comcast cable but cannot get the company's popular on-demand option. That signal is blocked.
As NBC5's Lisa Parker reported, the block has raised questions about who defines a community standard and where does censorship begin?
The tiny suburb's motto incorporates faith, family and future. But South Holland resident Lisa Kozlowski said you can add censorship to the list, after the village explained to her why she could not get Comcast's on-demand service.
"They told me, 'You can't watch porn in South Holland,'" Kozlowski said.
Adult content is one of many on-demand offerings, and it triggers part of a franchise agreement the village signed with a former cable company in the 1990s.
The agreement reads, in part, "Franchisee shall not allow or make available for viewing any film rated 'X' ... or any channel which is primarily devoted to films that are obscene under community standards."
"I said, 'That's censorship,'" Kozlowski recalled. "I said, 'You're censoring us.' And he goes right back to this franchise agreement over and over."
Harvey Grossman, legal director of the Illinois American Civil Liberties Union said the franchise agreement isn't on solid legal ground.
"The contract can't waive the Constitution," he said. "This kind of censorship -- and it clearly is censorship -- raises very serious constitutional issues."
The ACLU successfully fought and won a similar battle with the town of Vernon Hills, Illinois, more than 20 years ago.
South Holland village officials wouldn't allow themselves to be videotaped, but they released a statement:"In keeping with the prevailing community standards and the long established values associated with our motto of faith, family and future ... the village has franchise agreements that protect these standards and values." The franchise contracts were signed long before on-demand services were developed. Kozlowski said much of on-demand content isn't obscene.
"I don't care about the porn. I don't want to watch the porn. I just want on-demand," she said.
Comcast pointed out all households can control what is displayed through their cable service with built-in parental controls. Comcast said it would love to offer the service in South Holland, but it is complying with the terms of the unusual franchise agreement, which it inherited from AT&T broadband four years ago.
South Holland officials said they continue to urge Comcast to find a way to deliver on demand to its residents without the adult content.
The ACLU said it would be interested in pursuing the issue if a resident approached it with a complaint, Parker reported.
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