No. 98-1682
In the Supreme Court of the United States
UNITED STATES OF AMERICA, ET AL., APPELLANTS
v.
PLAYBOY ENTERTAINMENT GROUP, INC.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BRIEF IN OPPOSITION TO MOTION TO AFFIRM
SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
CHRISTOPHER J. WRIGHT
General Counsel
Federal Communications
Commission
Washington, D.C. 20544
In the Supreme Court of the United States
No. 98-1682
UNITED STATES OF AMERICA, ET AL., APPELLANTS
v.
PLAYBOY ENTERTAINMENT GROUP, INC.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BRIEF IN OPPOSITION TO MOTION TO AFFIRM
1. Appellee argues (Mot. to Aff. 11-14) that the district court correctly
applied strict scrutiny in this case, notwithstanding that the Court in
Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996),
expressly stated that it need not decide whether strict scrutiny applies
to regulation of indecency on cable television. See id. at 755. Although
separate opinions by Justices Kennedy, see id. at 803-804, and Thomas, see
id. at 832, in Denver Area did apply strict scrutiny to the provisions in
that case, each of those opinions reached conclusions that differ from one
another and from the principal opinion. Accordingly, the fractured opinions
in Denver Area cannot be said to have definitively resolved the question
of the standard of review applicable to indecency on cable television. See
J.S. 14-15.
Moreover, regardless of the level of scrutiny applied, this Court's decision
in Pacifica at least made clear that certain unique features of the broadcast
media-their "uniquely pervasive presence," the fact that they
"confront[] the citizen * * * in the privacy of the home," the
inefficacy of "prior warnings" to "protect the listener or
viewer from unexpected program content," and their "unique[] accessib[ility]
to children," 438 U.S. at 748-749-significantly affect the analysis
of restrictions on indecency in broadcasting. The plurality in Denver Area
acknowledged the effect of those factors in the First Amendment analysis
of indecency on cable television, see 518 U.S. at 744-748, and Justice Kennedy's
opinion also acknowledged that those "concerns are weighty and will
be relevant to whether the law passes strict scrutiny." Id. at 804.
Nonetheless, as we explain in the jurisdictional statement (at 15-17), the
district court's opinion in this case gave no weight to those concerns.
Plenary review is thus warranted to correct the district court's departure
from the analysis employed by this Court in Pacifica.
Appellee argues (Mot. to Aff. 13) that "the very outcome in Denver
reveals the fundamental flaw in the government's reasoning," because
the plurality in Denver Area "approved cable operators' ability to
transmit (or not) totally unscrambled indecent programming on leased or
public access channels at any time of the day or night." The basis
for that holding, however, was that means other than the mandatory segregation
and blocking provision at issue in that case were available to protect minors
from indecency. See 518 U.S. at 756-759. Prominently featured among those
alternative means was Section 505. See id. at 756. The Court's holding in
Denver Area, therefore, rested on at least the possibility that Section
505 is constitutional; it could not establish, as appellee urges, that Section
505 violates the First Amendment.
2. Appellee argues (Mot. to Aff. 17) that, "[w]hether or not some of
Pacifica's reasoning may apply to cable television as suggested by the Denver
plurality, the time channeling requirement of Section 505 is far more restrictive
of speech when applied to cable television networks than it is in the broadcasting
context."1 Appellee bases that assertion on the fact that "[w]ith
respect to broadcasters, the safe harbor rules may require a station to
reschedule a particular program to late night hours," while "the
court below found that the * * * networks [affected by Section 505] had
'no practical choice' but to go dark for 16 hours per day." Ibid.
Initially, Section 505 would not result in the banning of appellee's networks
16 hours a day on all cable systems. As the district court made clear, an
increasing number of cable operators use digital technology that easily
eliminates signal bleed. See J.S. App. 6a-7a, 9a. Those operators may broadcast
appellee's cable networks at whatever time of day or night they wish with
no threat of signal bleed, and Section 505 is therefore not at all restrictive
of speech with respect to their subscribers. See J.S. 17 n.5.
In any event, appellee's claim that Section 505 is more restrictive of speech
because it would impose a greater decrease in programming than did the FCC
rule at issue in Pacifica is without merit. The FCC rule upheld in Pacifica
required time-channeling only of indecent material. If a radio station emulated
appellee by broadcasting "virtually 100% sexually explicit adult programming,"
J.S. App. 6a, the FCC's rule would require it to limit its broadcasts to
the 10 p.m.-to-6 a.m. safe harbor. In the same way, Section 505 requires
time-channeling or blocking only of indecent material; cable operators may
broadcast other material that appellee might choose to make available on
its network at any time of the day or night, without scrambling. See Order
and Notice of Proposed Rulemaking, In re Implementation of Section 505 of
the Telecommunications Act of 1996, 11 F.C.C.R. 5386, 5387, at ¶ 6
(1996). The fact that (for cable operators that do not already employ digital
or other complete scrambling technology) time-channeling would limit appellee's
programming for "16 hours per day" is the result of appellee's
choice to broadcast only indecent material. That choice suggests that appellee's
programming poses a particular threat to children; it does not suggest that
Section 505 is "more restrictive of speech" than the rule at issue
in Pacifica.2
3. Appellee argues (Mot. to Aff. 19) that Section 505 is unconstitutional
because the government "did not show that the recited concerns are
real, not conjectural." The district court, however, did not hold Section
505 unconstitutional because it does not address a real problem. To the
contrary, the court ultimately found that "there is sufficient risk
of harm to susceptible minors to warrant protection from sexually explicit
signal bleed." J.S. App. 30a. The sole basis for the district court's
holding that Section 505 is unconstitutional was that, in the court's view,
a less restrictive alternative is possible. The district court's finding
that signal bleed is a real problem is well supported by the record,3 and
appellee's disagreement with the district court's conclusion on that point
could not provide a basis for summary affirmance.
Appellee notes that the district court stated that "the Government
has not convinced us that [signal bleed] is a pervasive problem." Mot.
to Aff. 20 (quoting J.S. App. 36a). The very next sentence in the court's
opinion, however, is that "[p]arents may have little concern that the
adult channels be blocked." J.S. App. 36a. Read together, the two sentences
make clear that the court believed that the government had not shown that
parents (who are likely not to know of the problem) generally perceived
that there is a substantial threat that their children would be exposed
to signal bleed or that they should take affirmative steps to block it;
the district court was not contradicting its earlier findings that audio
signal bleed is common and video signal bleed is an ever-present danger
on the majority of cable systems in operation today. Proof that the broadcast
of indecent material occurred during a time of day when children were likely
to be in the audience was sufficient in Pacifica to justify the FCC's time-channeling
rule. Appellee's argument that the government had to establish not the number
of children potentially exposed to signal bleed from sexually explicit channels,
but the number who actually listen to or watch such material, is inconsistent
with Pacifica.
4. Appellee argues (Mot. to Aff. 22) that the government did not "demonstrate
that imposing the 'safe harbor' under Section 505 'will in fact alleviate
[the] harms [of signal bleed] in a direct and material way.'" In appellee's
view, such proof is required by this Court's decision in Turner Broad. Sys.,
Inc. v. FCC, 512 U.S. 622 (1994).
Initially, appellee's contention rests on the mistaken premise that federal
regulation to protect children from indecency is permissible only on the
same kind of empirical showing of harm as federal regulation of the speech
of cable operators in Turner to promote the entirely different purpose of
protecting a particular competitive structure in the broadcasting industry.
But it has long been settled that there is a "'compelling interest
in protecting * * * minors' which extend[s] to shielding them from indecent
messages." Reno v. ACLU, 521 U.S. 844, 869 (1997). See J.S. 20 n.7.
That interest is supported by deeply felt beliefs in our society about how
children should be raised, as well as by the empirical, scientific evidence
that led the district court to conclude that the risk to minors is real.
See J.S. App. 30a.
Moreover, appellee apparently would demand direct, empirical evidence that
children suffer harm from hearing the audio portions of appellee's sexually
explicit programming in their entirety and viewing the partly (and at times
completely) visible video portion. Children, however, are not experimental
subjects whose environment can be manipulated with no regard for moral and
social consequences. As the district court noted, acquiring evidence of
the sort appellee demands would raise the "clear ethical questions
surrounding clinical research of the effects of children viewing sexually
explicit programming." J.S. App. 29a.
5. Contrary to appellee's suggestion (Mot. to Aff. 23-26), we do not argue
that the district court erred in considering, as part of the constitutional
analysis, the possibility that other forms of regulation would be less speech-restrictive,
even if those other forms of regulation have not been enacted into law.
But even when strict scrutiny is applied, a party claiming that a particular
regulation violates the First Amendment must do something more than dream
up a theoretically possible alternative regulatory scheme; the alternative
scheme must realistically promise to advance the legitimate purposes underlying
the regulation, and it must be genuinely less restrictive of speech. The
alternative on which the district court relied would do neither. See J.S.
17-25.
First, the district court's hypothetical Section 504, enhanced by complex
requirements to ensure notice and easy and inexpensive access to lockboxes
by parents who want them, would not be an alternative to Section 505, because
it would not serve one of the purposes animating Section 505-society's interest
in "protect[ing] children from exposure to patently offensive sex-related
material." J.S. App. 26a. Appellee asserts (Mot. to Aff. 28) that the
Court "addressed the identical question" in Denver Area.
Denver Area in fact suggests the inadequacy of appellee's argument. The
Court noted that, among the remedies to the problem of "children with
inattentive parents" is to take measures that may "impos[e] cost
burdens upon system operators (who may spread them through subscription
fees)," and, of particular significance, to "require[] lockbox
defaults to be set to block certain channels (say, sex-dedicated channels)."
518 U.S. at 758-759. Although lockboxes (i.e., set-top converters with channel
lockout features, see J.S. App. 58a) offer no safeguard to children in households
with cable-ready televisions that are not connected to set-top converters,
see ibid., the lockbox approach mentioned in Denver Area does operate like
Section 505-rather than Section 504-in one important respect. Like Section
505, such a lockbox approach does not depend on parental awareness and initiative
to offer children at least some level of protection. By contrast, even the
enhanced-notice version of Section 504 relied upon by the district court
would have precisely the reverse effect; children would be exposed to sexually
explicit material unless the parent took affirmative steps to avoid such
exposure. None of the opinions in Denver Area stated that such an alternative
would adequately protect children.
In any event, appellee does not dispute that the district court's conclusion
that an enhanced-notice version of Section 504 would be an adequate alternative
to Section 505 overlooked the independent societal interest in protecting
children from sexually explicit materials. None of the opinions in Denver
Area discussed whether that interest is sufficient to justify the kind of
modest restriction on speech that Section 505 imposes.4 Plenary review is
warranted so that this Court may give full consideration to a key rationale
underlying Congress's action.
Second, the district court's hypothetical, enhanced Section 504 would likely
result in at least as great a restriction of appellee's programming as results
from Section 505. The district court itself found that Section 504, without
the district court's enhanced-notice provisions and in part without the
provision for free access to blocking devices, see J.S. App. 20a & n.19,
had led to approximately one-half of 1% of households requesting blocking.
The enhanced-notice and other provisions the district court envisioned would
surely result in at least a modest increase in the number of households
requesting blocking devices. Even a modest increase would, according to
the district court's findings, create at least the same incentives for cable
operators to time-channel (or completely drop) appellee's network that Section
505 creates. The net result would be a regime in which the restrictions
on speech are at least as great as under Section 505.
The district court noted the testimony that the cost of distributing lockboxes
to 3% of a cable system's customers would equal all of the revenue the operator
derived from its sexually explicit channels. J.S. App. 21a-22a. The court
added that, if a cable operator were willing to amortize the cost of the
lockboxes over five years, the number of lockboxes that could be distributed
would rise to 6% of the subscriber base. Id. at 22a. In actuality, cable
operators could be expected to drop (or time-channel) sexually explicit
channels long before the number of subscribers who requested lockboxes reached
the 3-6% range. As the district court found, "[e]conomic theory would
suggest that profit-maximizing cable operators would cease carriage of adult
channels" before exhausting all revenues from such channels; rather,
they would take action when the "costs rose to such a point that the
profit from adult channels was less than the profit from channels unlikely
to require blocking." Ibid. Therefore, a relatively minor boost in
the number of subscribers seeking lockboxes-a boost that would be unavoidable
under a version of Section 504 that mandated effective notice and easy availability
of lockboxes-would be sufficient to lead to the same kinds of time-channeling
under Section 504 as the district court found would occur under Section
505. Indeed, an enhanced Section 504 would likely result in more restrictions
on speech, since at least some parents, given effective notice of the problem,
may well seek lockboxes even if cable operators choose to time-channel their
programming; to avoid the costs of supplying those lockboxes, cable operators
might simply drop appellee's programming altogether. An enhanced Section
504 thus would not be less restrictive of speech than Section 505.
6. The district court's dismissal of our post-trial motions puts the government
in an untenable position. See J.S. 25-29. The district court's opinion stated
that it would "require" appellee to take certain actions, J.S.
App. 38a, but its injunction omitted any such requirement. Under the district
court's ruling, however, we could obtain a resolution of the contradiction
between the district court's opinion and its injunction only by delaying
filing a notice of appeal until the district court acted on our post-trial
motions, thereby risking that our notice of appeal would be deemed to have
been jurisdictionally out of time.
Appellee argues that "[o]nly a handful of cases," Mot. to Aff.
30 n.31, may be affected by the legal issue presented. Those cases, however,
frequently involve serious constitutional issues in which it is particularly
important that orderly processes of litigation be available to the court
and the parties, so that premature or unnecessary resolution of constitutional
questions may be avoided and issues may be presented to this Court in a
manner most suitable for this Court's resolution. Plenary review of the
district court's jurisdictional ruling is warranted, so that parties in
cases in which a direct appeal to this Court is available may both protect
their rights to appeal and obtain postjudgment relief from the district
court that could alter or clarify the issues on appeal in this Court-or
even eliminate the need to take an appeal at all.
* * * * *
For the foregoing reasons and those stated in the jurisdictional statement,
the Court should note probable jurisdiction.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
CHRISTOPHER J. WRIGHT
General Counsel
Federal Communications
Commission
JUNE 1999
1 Appellee states that our claim that "the government's interest is
stronger here than in the broadcasting context because Pacifica involved
the one-time broadcast of inappropriate language compared to channels that
carry virtually 100% sexually explicit adult programming is not correct,
nor is it supported by the record below." Mot. to Aff. 12 (quoting
J.S. 17) (internal quotation marks and citation omitted). The district court
repeatedly stated that "[t]he programming on the Playboy network is
virtually 100% sexually explicit adult programming." J.S. App. 5a-6a;
see also id. at 42a, 47a. Indeed, the court distinguished appellee's broadcasting
from that of other channels, which broadcast material "which contained
some sexually explicit scenes but were not continuously sexually explicit."
Id. at 6a. A child may therefore easily find sexually explicit material
by tuning in to signal bleed from appellee's channels.
2 Appellee errs in stating that "[t]here is no dispute that Section
505 prevents the transmission of Appellee's programming during 'the hours
when most viewers want to see such programming.'" Mot. to Aff. 15 (quoting
J.S. 18 n.6); see also id. at 3, 27. The district court found that "30-50%
of all adult programming is viewed by households prior to 10 p.m."
J.S. App. 33a. It follows that 50-70% of such programming is viewed after
10 p.m. and would not therefore be affected by Section 505. The safe harbor
provision of Section 505 permits the transmission of appellee's programming
when most viewers want to see it, and it imposes only a minor restriction
on the minority who want to view it at a different time. The cited portion
of the jurisdictional statement makes that point. See J.S. 18 n.6 ("We
do not dispute that time-channeling of indecent sexually explicit television
programming to the hours when most viewers want to see such programming
is a restriction on such programming."). Indeed, the fact that the
safe-harbor hours are precisely the hours when adults usually want to view
sexually explicit programming, coupled with the easy availability of VCR
machines to tape such programming and play it at a time convenient to the
viewer, emphasizes the relatively modest scope of the restriction imposed
by Section 505.
3 The district court found that most cable operators use a technology that
leaves the audio portion of appellee's sexually explicit programming entirely
audible and leaves portions of the video programming intelligible to varying
degrees. J.S. App. 7a-8a. Indeed, the district court's finding that "the
vast majority (in one survey, 69%) of cable operators have, in response
to § 505, moved to time channeling," id. at 16a-17a, makes clear
that the cable industry itself believes that signal bleed occurs with some
regularity; otherwise, those systems would not have chosen to undergo the
loss of revenue that results from limiting sexually explicit channels to
the safe-harbor hours.
4 Cf. 518 U.S. at 806 (opinion of Kennedy, J.) ("Congress does have
* * * a compelling interest in protecting children from indecent speech.
So long as society gives proper respect to parental choices, it may, under
an appropriate standard, intervene to spare children exposure to material
not suitable for minors.") (citations omitted).