Dispatches from the Creation Wars

South Holland, Illinois, a small suburb of Chicago, has blocked Comcast on Demand from their town in order to prevent people in that town from ordering pornographic movies via their cable system. It’s not likely to survive a court challenge:

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, Ill., more than 20 years ago.

This does highlight the key difference between social conservatives and libertarians. They believe that rights exist at the collective level; we know that they exist at the individual level. For the social conservative, a group of people, whether local or national, has the “right” to decide what other people can and can’t do within that group even if their actions have no effect on them at all, and this is a perfect example of that kind of reasoning.

No one who has Comcast is forced to watch porno movies. In fact, they’re very easily blocked by the individual consumer to make sure their kids don’t watch them. That puts the choice and the responsibility where it should be, with each individual person. But having the ability to control their own choices is not enough for the SoCons; they want the ability to control the choices of other people. The ACLU is willing to take the case; let’s hope a resident of that town volunteers to be the plaintiff.


  1. #1 NonyNony
    December 8, 2006

    I wondered if this wasn’t about some stupid “franchise agreement” and sure enough, when I click over to the article there it is: “franchise agreement”. I remember some towns making particularly stupid demands in their franchise agreements – they were supposed to be about ensuring that in exchange for a cable-laying monopoloy, the cable company provided access for everyone in the community and not just for the folks who they knew they could get money out of. Some idiotic city councils took it further and did dumbass things like this in their agreements.

    Given that the folks in town who WANT porn broadcast into their homes can sign up for Dish Network now and get all of the porn that they want, and that families who want to make sure that they don’t get porn in their homes can use a V-chip to disable it, this should be a non-issue and the city council should back down. But they won’t, because stupid things like this are exactly the types of issues that city councils like to demogogue about for votes from the handful of people who remember to vote for their city council members.

    (I wonder if ComCast provides Internet service into the homes in that city, and how they get around the “shall not ‘allow or make available for viewing any film rated X'” when there are plenty of internet sites available where rated X films can be downloaded.)

  2. #2 DuWayne
    December 8, 2006

    Twenty years ago, they might have had trouble finding a defendant, today, I doubt it will be, um, hard to find one.

  3. #3 David C. Brayton
    December 8, 2006

    Hmmm…I wonder if there are any similar restrictions regarding internet access in South Holland. In other words, is Comcast required to block access to pornography via the internet? I doubt it.

    Although I can’t find anything else regarding this issue, it seems that the city is on really weak ground. While obscene material can be regulated or even banned, blocking access to all pornography isn’t justified because not all pornography is obscene. (Can anyone in this day and age argue that Playboy is obscene?)

    Unfortunately, the Supreme Court adopted a very malleable definition of obscenity (Communirty standards, prurient interest in sex, lacking legitimate artistic or scientific merit). Because the definition of obscenity can differ between communities (i.e. that which is obsene in Skokie IL may be quite vanilla in San Francisco’s Tenderloin) it can be hard to predict the outcome of this case.

  4. #4 Scott Simmons
    December 8, 2006

    “… families who want to make sure that they don’t get porn in their homes can use a V-chip to disable it …”

    Don’t even need a v-chip for the stuff they’re talking about. When we had Comcast cable, we put a security code on the cable box that you had to enter to order any pay-per-view, which would keep your kids from ordering porn. (Not why we had it–our kids hadn’t [and haven’t] reached the age to be interested in that. But we could easily have racked up hundreds of dollars a month in Harry Potter PPV charges alone.)

  5. #5 tacitus
    December 8, 2006

    Anyone with a broadband Internet connection and half-a-brain can download more porn in a week than they could watch in a whole year.

    And it’s much easier for kids to circumvent Internet blocking techniques without their parents finding out than hack their cable service.

    I suspect the purpose of the ban was more to do with wanting to take a public stand on what they see as a declining public moral standards.

  6. #6 DuWayne
    December 8, 2006

    Scott –

    A friend of mine ended up with more than $200 added to his families cable bill after their (then) 20 month old son managed to punch the buttons ordering movie after movie on demand. Expensive way to learn that your child has awesome motor skills and really likes the lights on the remote.

  7. #7 Matthew
    December 8, 2006

    Social conservatives have to just give up on this issue, because technology has assured that you’re never going to stop people from watching all the porn they want, ever again.

  8. #8 FishyFred
    December 8, 2006

    When we had Comcast cable, we put a security code on the cable box that you had to enter to order any pay-per-view, which would keep your kids from ordering porn.

    Yeah, digital cable makes it super-easy to block channels, but tt couldn’t block a couple of my cleverer friends. Their dad went away for a few days and locked the TV to make the kids do their homework. They called the retailer and told them that their dad had left and forgotten to unlock some channels and asked for the universal code. They got it. Voila: TV.

  9. #9 Dan
    December 8, 2006

    Based upon the facts available here, it seems to me that Playboy Entertainment Group controls. If Justice Kennedy’s opinion there is still good law, this is a clear example of a content-based regulation that fails least restrictive means testing. The state has a compelling interest in protecting children (and others) from pornography, but block-on-demand is less restrictive.

  10. #10 AndyS
    December 8, 2006

    This does highlight the key difference between social conservatives and libertarians.

    Also this highlights a key point of agreement between liberals (not all but most) and libertarians.

  11. #11 David C. Brayton
    December 8, 2006

    Dan–you are probably right. However, in Playboy the issue of obscenity was not raised. The parties agreed that the broadcasts were indecent but not obscene.

    Whether the material is obscene is a threshold issue. If it is, then the government may regulate it and the Court will view the law not with strict scrutiny, but merely a rational basis.

    Because the definition of obscene is dependent upon the community values and mores, there is a bit of room for South Holland to argue that this community is not like a big city and in this community, this stuff is obscene. And it seems, from the brief quote in the article, that is what they intend to do.

    If the material is deemed indecent, then Playboy’s strict scrutiny test would apply.

  12. #12 Jacob
    December 8, 2006

    Why don’t these people just not buy porn if they hate it so much?

  13. #13 Brian X
    December 8, 2006

    I do find it interesting how conservatives complain about the “nanny state” and yet a sizeable fraction of them turn around and want to impose exactly that.

  14. #14 Prup aka Jim Benton
    December 9, 2006

    Two points.
    First, anyone who has the option to get satellite and sticks with cable is, IM(nsH)O, nuts. Better price, better reliability, better quality.
    More important, I doubt if any judge has to reach the question of “indecency vs obscenity” since the community is blocking ALL ‘on demand’ service, not just X-rated material.

  15. #15 Ed Brayton
    December 9, 2006

    Well call me nuts then. I’ve had both satellite and cable and I prefer cable on all counts. It’s more reliable (doesn’t go out in a snowstorm or heavy cloud cover the way Direct TV did) and, combined with cable internet, it’s a much better deal. I pay $100 a month for digital cable with all the movie channels and 5 mbps internet service. With satellite TV, it would be over $100 just for the TV portion of that, and I’d have to find another option for broadband internet (around here, that means short-range wireless, which is also unreliable in severe weather).

  16. #16 Brian X
    December 10, 2006


    I personally prefer cable for a couple of reasons, the main one being local access. I don’t watch much of it, but I’m quite active producing it. I mean, yeah, I suppose it would be nice to get all the local versions of Fox Sports Net, but at the cost of giving up New England Cable News? Personally I think having 24-hour local news is rather more useful than being able to watch the Phoenix Suns on FSN West.

    That said, if you live out in the sticks, satellite TV is pretty much your only choice. No company likes running cable or fiber to the middle of nowhere, and I’d bet that’s where DirecTV and Dish make a lot of their money. And satellite is cheaper to the end user, so sometimes it makes more sense economically. That said, satellite radio rocks hard, and satellite internet is a gigantic scam.

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