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In the Supreme Court of the United States
UNITED STATES OF AMERICA, ET AL., APPELLANTS
PLAYBOY ENTERTAINMENT GROUP, INC.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BRIEF FOR THE APPELLANTS
SETH P. WAXMAN
Counsel of Record
WILLIAM B. SCHULTZ
Acting Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor General
JACOB M. LEWIS
Department of Justice
Washington, D.C. 20530-0001
CHRISTOPHER J. WRIGHT
Washington, D.C. 20554
Section 505 of the Telecommunications Act of 1996, Pub. L. No. 104-104,
Tit. V, 110 Stat. 136, requires that a cable television operator "providing
sexually explicit adult programming or other programming that is indecent
on any channel of its service primarily dedicated to sexually-oriented programming"
either "fully scramble or otherwise fully block the video and audio
portion of such channel so that one not a subscriber * * * does not receive
it," or, alternatively, not provide that programming "during the
hours of the day (as determined by the [Federal Communication] Commission)
when a significant number of children are likely to view it."
The questions presented are:
1. Whether Section 505 violates the First Amendment.
2. Whether the three-judge district court was divested of jurisdiction to
dispose of the government's post-judgment motions under Rules 59 and 60
of the Federal Rules of Civil Procedure by the government's filing of a
notice of appeal while those motions were pending.
PARTIES TO THE PROCEEDINGS
Appellants are the United States of America, Janet Reno, Attorney General,
the United States Department of Justice, and the Federal Communications
Commission. Appellee is Playboy Entertainment Group, Inc. Spice Entertainment
Companies, Inc. (formerly Graff Pay-Per-View), was a party below but, after
failing to obtain a preliminary injunction, chose not to participate in
litigation of the merits. Spice has since been purchased by Playboy.
In the Supreme Court of the United States
UNITED STATES OF AMERICA, ET AL., APPELLANTS
PLAYBOY ENTERTAINMENT GROUP, INC.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
BRIEF FOR THE APPELLANTS
The opinion of the three-judge district court (J.S. App. 1a-39a) is reported
at 30 F. Supp. 2d 702. The permanent injunction (J.S. App. 87a-88a) and
the order denying the government's post-trial motions (J.S. App. 91a-92a)
are unreported. The prior opinion of the district court denying a preliminary
injunction (J.S. App. 40a-86a) is reported at 945 F. Supp. 772. The order
of this Court affirming the denial of the preliminary injunction is reported
at 520 U.S. 1141. The opinion of the district court granting a temporary
restraining order (Mot. to Aff. App. 1a-17a) is reported at 918 F. Supp.
The permanent injunction of the three-judge district court, dated December
29, 1998, was entered on December 30, 1998. The government filed a notice
of appeal on January 19, 1999 (a Tuesday after a Monday holiday). On March
10, 1999, Justice Souter extended the time for filing a jurisdictional statement
to and including April 19, 1999. On March 18, 1999, the district court entered
an order dismissing the government's motions to alter or amend the judgment
and to correct the judgment. On April 7, 1999, the government filed a second
notice of appeal, from both the original injunction and the order dismissing
the government's post-trial motions. This Court noted probable jurisdiction
on June 21, 1999. The jurisdiction of this Court rests on Section 561(b)
of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 143,
and 28 U.S.C. 1253.
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
The First Amendment of the United States Constitution provides that "Congress
shall make no law * * * abridging the freedom of speech." Sections
504, 505 and 561 of the Telecommunications Act of 1996, Pub. L. No. 104-104,
110 Stat. 136, 142, are reproduced at J.S. App. 96a-101a.
This action arises out of Congress's efforts to address the problem of "signal
bleed" of cable television channels that are devoted to sexually explicit,
"adult" programming. Such signal bleed occurs when cable operators
partially scramble or otherwise block the signal on sexually explicit channels,
in an effort to deprive those who do not pay for such channels of a clear
signal. Because the scrambling is only partial, however, intelligible video
and audio signals remain, and are transmitted to all households on the cable
system. As a result, children in all households on a given cable system-
even those households that do not subscribe to appellee's programming services-may
be able to view and hear the sexually explicit content on appellee's programming
that is distributed by cable operators.
1. Approximately 62 million households nationwide receive cable television.
J.S. App. 53a. Cable customers typically are offered a "basic"
package of channels for a monthly fee, but they also may subscribe at an
additional monthly fee to premium channels that provide sports programming,
recently released movies, or adult, sexually explicit entertainment. Id.
at 5a. Cable customers may also order premium programming on a pay-per-view
basis, permitting the customer access to a particular movie, sporting event,
or sexually explicit program for a specified additional fee. Ibid.
In an effort to provide that cable customers who have not paid for premium
programming are not able to view it, most cable operators scramble the programming
at their central transmission facility, using either "RF" or "baseband"
technology. RF scrambling causes the picture to jump and roll on the television
sets of customers who are not authorized to receive the premium channel,
although the images on the screen can be discerned to varying degrees at
varying times. The cable system provides customers who are authorized to
receive premium channels with a set-top device, called a "converter,"
which is connected between the subscriber line and the television set to
counteract the scrambling and permit clear reception of one or more premium
channels. RF scrambling does not affect the audio portion of the signal,
and, as a result, the scrambling does not prevent the audio portion from
being heard clearly on all customers' television sets at all times. J.S.
Modern baseband scrambling, in contrast, renders the video portion of the
signal unintelligible. As with RF scrambling, subscribers authorized to
receive premium programming are given converters to permit clear reception.
Some baseband scrambling systems also encrypt the audio portion of the signal,
so that no intelligible audio is presented to customers who do not subscribe
to the scrambled premium service. For the most part, however, cable operators
use RF scrambling or prior generations of baseband scrambling, which do
not render the video completely unintelligible and do not scramble the audio
at all. J.S. App. 7a-8a.
The limitations of these scrambling systems give rise to "signal bleed."
In any system that carries premium programming, all customers of the system
receive the scrambled signal on all televisions that are connected to the
cable system. As a result, the cables in those systems that carry premium
programming but do not conform to the scrambling and blocking requirements
of Section 505 typically carry a partially scrambled video signal and a
completely clear audio signal of the premium programming, including, when
offered, sexually explicit programming. J.S. App. 9a.
2. Congress enacted the statutory provision at issue in this case, Section
505 of the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat.
136, to address the problem of signal bleed in the context of cable channels
that are devoted to sexually explicit, "adult" programming. Congress
was "aware that some cable systems [were] permitting 'adult' programs
that [were] clearly unsuitable for children to be received in the home without
sufficient scrambling." S. Rep. No. 367, 103d Cong., 2d Sess. 103 (1994).
Senator Feinstein, one of the sponsors of Section 505, explained that "[p]arents
* * * come home after work only to find their children * * * watching or
listening to the adults-only channel, a channel that many parents did not
even know existed." 141 Cong. Rec. S8167 (daily ed. June 12, 1995).
As an example, she referred to the fact that a "partially scrambled
pornography signal was broadcast only one channel away from a network broadcasting
cartoons and was easily accessible for children to view." Ibid.
The record in this case reflects the very graphic audio and visual content
of the sexually explicit programming services the availability of which
to children was the subject of congressional concern. We have lodged with
the Court copies of three tapes, DXs 1, 2 and 44, that are in the record
in this case1 and that demonstrate the extent to which reasonably discernible
images and sounds can be seen and heard on sexually explicit cable programming
services operated by appellee and others, despite the scrambling that cable
operators ordinarily undertake. In addition, we have lodged two other videotapes
in the record, DXs 11 and 35, that show unscrambled programming on Playboy
and Spice. These tapes were among those provided by appellee and Spice in
response to a government request for copies of their programming on randomly
selected dates.2 Finally, some of the content of the programming on Playboy,
Spice, and similar sexually explicit cable programming services is described
at pages 5-10 of Defendants' Post-Trial Brief, which was filed in the district
court; we have lodged copies of those pages from our post-trial brief with
the Clerk of this Court. We have not reproduced descriptions of the programming
and the language used in the programming in this brief, but we urge the
Court to examine those lodgings, so that the Court may be familiar with
the programming at issue in this case and with the problem of signal bleed.
Congress's concerns about such programming were triggered by complaints
from across the country. For example, Mr. Anthony Snesko of Poway, California,
had made 550 copies of a videotape showing the Spice Channel as it appeared
on his television at 9 a.m. sometime in April or May, 1994, and had distributed
a copy to every Member of the Senate and House of Representatives. DXs 1,
47.3 In December 1995, a mother from Cape Coral, Florida, complained to
her Representative that she had recently found her eight-year-old son, seven-year-old
daughter, and a playmate watching Spice at 4 p.m., "transfixed"
by scenes of "a naked man sodomizing a woman" and the "groans
and epithets that go along." DX 55.4 In 1993, Senator Biden urged the
Federal Communications Commission to review a cable company's compliance
with federal law after large numbers of Delaware residents voiced objections
about unwanted reception of Spice. DX 72. See also DXs 59, 61, 70 (constituent
letters complaining about inadequately scrambled "sex channels"
and their availability to children).
In her floor statement, Senator Feinstein acknowledged that an alternative
approach would be for cable operators to provide complete blocking of audio
and video signals free of charge at the request of a subscriber. 141 Cong.
Rec. S8167 (daily ed. June 12, 1995) (statement of Sen. Feinstein).5 But
Senator Feinstein urged that a provision for blocking on demand would not
"go far enough," because it would "put the burden of action
on the subscriber * * * by requiring a subscriber to specifically request
the blocking of indecent programming." Ibid.
3. Section 505 became law on February 8, 1996, when the President signed
the Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. Under
Section 505, "[i]n providing sexually explicit adult programming or
other programming that is indecent on any channel of its service primarily
dedicated to sexually-oriented programming, a multichannel video programming
distributor"-a term that includes a cable operator-"shall fully
scramble or otherwise fully block the video and audio portion of such channel
so that one not a subscriber to such channel or programming does not receive
it." 110 Stat. 136 (47 U.S.C. 561(a) (Supp. III 1997)). Until the cable
operator complies with these requirements, it "shall limit the access
of children" to such programming "by not providing such programming
during the hours of the day (as determined by the [Federal Communications]
Commission) when a significant number of children are likely to view it."
110 Stat. 136 (47 U.S.C. 561(b) (Supp. III 1997)).
On March 5, 1996, the Federal Communications Commission issued an interim
rule for implementation of Section 505. Order and Notice of Proposed Rulemaking,
In re Implementation of Section 505 of the Telecommunications Act of 1996,
11 F.C.C.R. 5386 (Implementation of Section 505). First, the Commission
interpreted the term "sexually explicit adult programming," as
used in Section 505, to be a category of "programming that is indecent,"
a phrase also used in the statute. Implementation of Section 505, paras.
6, 9. The Commission defined "indecent programming" on an interim
basis to mean "any programming that describes or depicts sexual or
excretory activities or organs in a patently offensive manner as measured
by contemporary community standards for the cable medium," and proposed
to adopt that definition on a permanent basis. Id. para. 9. As the Commission
explained, that is essentially the same definition adopted by the Commission
for purposes of regulating indecent broadcast programs. Id. paras. 6, 9.
The Commission also proposed, and provisionally adopted, a safe harbor,
for purposes of Section 505's time-channeling alternative, of 10:00 p.m.
to 6:00 a.m.. The Commission noted that those were the same safe-harbor
hours that it had previously established, based on an extensive administrative
record, in its rule governing indecent over-the-air broadcast television
or radio programs, which had been sustained by the District of Columbia
Circuit, sitting en banc, in Action for Children's Television v. FCC, 58
F.3d 654 (1995), cert. denied, 516 U.S. 1043 (1996). Implementation of Section
505, paras. 5, 8; see 47 C.F.R. 73.3999. The rules implementing Section
505 became effective on May 18, 1997. Implementation of Section 505 of the
Telecommunications Act of 1996, 12 F.C.C.R. 5212 (Apr. 17, 1997).
4. Appellee Playboy Entertainment Group provides "virtually 100% sexually
explicit adult programming," J.S. App. 6a, for transmission by cable
operators to premium subscribers who choose to order Playboy's programming.
Playboy provides such programming via its Playboy Television and AdulTVision
networks. Id. at 5a. On February 26, 1996, Playboy filed suit in the United
States District Court for the District of Delaware seeking declaratory and
injunctive relief against the operation of Section 505. The complaint alleged
that Section 505 violates Playboy's rights under the First Amendment and
the equal protection component of the Due Process Clause of the Fifth Amendment.
The district court consolidated the action with a similar action brought
by Spice Entertainment Companies (formerly known as Graff Pay-Per-View),
which operated channels similar to those operated by Playboy.6 A three-judge
court was convened pursuant to Section 561 of the Telecommunications Act
of 1996, Pub. L. No. 104-104, 110 Stat. 142 (47 U.S.C. 223 note (Supp. III
On November 8, 1996, the three-judge court issued a decision denying Playboy's
motion for a preliminary injunction, stating that Playboy and Spice "ha[d]
not persuaded us that they are likely to prevail on the merits." J.S.
App. 63a.7 Reviewing Section 505 under "strict scrutiny or something
very close to strict scrutiny" as a content-based restriction on speech,
id. at 67a, the court held that Section 505 is carefully tailored to further
the compelling interest in protecting children. The court explained that
Section 505 "does not seek to ban sexually explicit programming, nor
does it prohibit consenting adults from viewing erotic material on premium
cable networks if they so desire." Id. at 78a. Instead, the court explained,
Section 505 permits cable operators to provide sexually explicit programming
to willing subscribers if the operators avail themselves of either of two
alternative approaches to protecting nonsubscribers-full scrambling of audio
and video, or time-channeling. Id. at 76a.
5. Playboy appealed the denial of its request for a preliminary injunction
directly to this Court, which summarily affirmed. 520 U.S. 1141 (1997).
6. The case was tried before the district court on March 4-6, 1998. On December
28, 1998, the district court issued a decision holding that Section 505
is unconstitutional under the First Amendment.
The court held, as it had at the preliminary injunction stage, that "either
strict scrutiny or something very close to strict scrutiny" should
be applied. J.S. App. 23a. The court also held that Section 505 is constitutional
only if the government proves that it "is a 'least restrictive alternative,'
i.e., that no less restrictive measures are available to achieve the same
ends the government seeks to achieve." Id. at 26a.
The court noted that the government asserted three compelling interests
supporting Section 505: "the Government's interest in the well-being
of the nation's youth-the need to protect children from exposure to patently
offensive sex-related material"; "the Government's interest in
supporting parental claims of authority in their own household-the need
to protect parents' right to inculcate morals and beliefs [i]n their children";
and "the Government's interest in ensuring the individual's right to
be left alone in the privacy of his or her home-the need to protect households
from unwanted communications." J.S. App. 26a-27a. Although it expressed
some doubt about the strength of the empirical evidence in the record regarding
harm to minors, see id. at 30a, the court held that all three of those interests
are present and, in sum, are compelling. Id. at 32a.
The court held, however, that Section 505 is not the least restrictive alternative
that the government could have adopted to advance those interests. J.S.
App. 35a. The court found that, under Section 505, cable operators "with
incomplete scrambling technology" that could not completely eliminate
signal bleed "chose time channeling because no other system-wide blocking
technique is economically feasible." Id. at 33a n.23; see also id.
at 16a-17a. The court found that such time-channeling restricts "a
significant amount of speech," because "30-50% of all adult programming
is viewed by households prior to 10 p.m.," before the safe-harbor period.
Id. at 33a. In the court's view, Section 504, by contrast, is a content-neutral
provision that permits subscribers voluntarily to request a free blocking
device, thus avoiding the need for full scrambling or time channeling. Id.
The court acknowledged that an alternative must be not only less restrictive
but also "a viable alternative." J.S. App. 35a. In this respect,
the court noted that "parents usually become aware of the problem only
after the child has been exposed to signal bleed, and then the damage has
been done," and that even if parents are aware of the problem, "the
success of § 504 depends on parental awareness that they have the right
to receive a lockbox free of charge." Ibid. The court was unable to
find that the experience during the 14-month period in which Section 504
was in effect but Section 505 was enjoined was sufficient to alleviate the
court's concerns regarding the adequacy of notice to customers under Section
504.8 Specifically, notwithstanding the applicability of Section 504 during
that time, cable operators still had distributed blocking devices on request
to fewer than one-half of one percent of subscribers. The court stated,
however, that the "minimal lockbox distribution is equally consistent
with an ineffective statute as it is with a societal response that signal
bleed is not a pervasive problem." Id. at 36a. In the court's view,
then, either there has not been "adequate notice to subscribers,"
or "[p]arents may have little concern that the adult channels be blocked."
To address the concern that inadequate notice rendered Section 504 insufficient
to protect the interests involved, the court set forth what would constitute
"adequate notice" under Section 504 in the future. First, the
court explained, it should include a basic notice to subscribers that children
may be viewing signal bleed from sexually explicit programming and that
blocking devices are readily available free of charge. J.S. App. 36a-37a.
Next, the court stated that such notice would have to be provided by "[a]ppropriate
means," including "inserts in monthly billing statements,"
"on-air advertisement on channels other than the one broadcasting the
sexually explicit programming," and "a special notice" when
a cable operator "change[s] the channel on which it broadcasts sexually
explicit programming." Id. at 37a. The cable operator would have to
provide the means whereby "a request for a free device to block the
offending channel can be made by a telephone call" to the cable operator.
Ibid. Finally, the notice should be given "on a regular basis, at reasonable
intervals," and whenever a cable operator "change[s] the channel
on which it broadcasts sexually explicit programming." Ibid.
Against this background, the court held that, as enhanced with what it deemed
to be "adequate notice," Section 504 would be "a less restrictive
alternative to § 505." J.S. App. 38a. Because neither party had
proposed an enhanced Section 504 as an alternative to Section 505, neither
party had addressed whether and to what extent such an enhanced Section
504 would serve the interests underlying Section 505 or would restrict speech
less than Section 505. Nonetheless, the district court found that, "with
adequate notice of the issue of signal bleed, parents can decide for themselves
whether it is a problem," and "to any parent for whom signal bleed
is a concern, § 504, along with 'adequate notice,' is an effective
solution." Id. at 37a-38a. The court did not address how cable operators
would respond to the enhancements it proposed for Section 504, or whether
and how expenses incurred as a result of those enhancements would lead cable
operators to restrict appellee's programming.
The district court recognized that it could not require all cable operators
that transmit sexually explicit programming services to provide the type
of "adequate notice" that the court had hypothesized, because
as non-parties the operators were not subject to the court's jurisdiction.
But the court pointed out that it did have jurisdiction over Playboy, and
declared that it would require Playboy to include notice provisions in its
contractual arrangements with cable operators. The district court then reiterated
that unless adequate notice is provided, Section 504 would not be an effective
alternative to Section 505. J.S. App. 38a.
7. On December 29, 1998, the day after announcing its decision, the court
issued an order permanently enjoining enforcement of Section 505. J.S. App.
87a-88a. The order did not contain any requirement that Playboy include
"adequate notice" provisions in its contracts with cable operators.
Nor did it limit the scope of the injunction to Playboy, which is the only
programmer of sexually explicit broadcasting that remains a party to this
On January 12, 1999, the government filed a motion under Rule 59(e) of the
Federal Rules of Civil Procedure seeking to alter or amend the judgment
to limit the injunction to Playboy, and it filed a motion under Rule 60(a)
seeking to correct the judgment by including the requirement discussed in
the court's opinion-that Playboy ensure that its contracts require cable
operators to provide "adequate notice" to cable customers. The
government then filed a notice of direct appeal to this Court on January
19, 1999, 20 days after entry of the injunction, as provided in Section
561(b) of the Telecommunications Act of 1996 (110 Stat. 143). J.S. App.
On March 18, 1999, the district court dismissed the government's two motions,
stating that it "lack[ed] jurisdiction to adjudicate these motions
due to subsequent filing of Defendants' notice of appeal to the United States
Supreme Court." J.S. App. 91a-92a. On April 7, 1999, the government
filed a second notice of appeal, addressed to both the original injunction
and the March 18 order. Id. at 93a-95a. This Court noted probable jurisdiction
on June 21, 1999.
SUMMARY OF ARGUMENT
This case involves the constitutionality of a law enacted by Congress to
limit the ability of minors to obtain access to highly graphic, sexually
explicit programming that intrudes, uninvited, into American homes through
the signal bleed of sexually explicit programming channels on cable television.
It cannot be reasonably doubted that the interests served by the law-the
protection of minors and of the privacy of the home-are compelling ones.
Nor can it reasonably be doubted that in enacting Section 505, Congress
carefully directed its aim at the programming by-product that creates the
evil, leaving it entirely open to cable operators to broadcast sexually
explicit materials to their subscribers at any time (so long as minors are
not threatened by signal bleed of those materials) or during hours when
children are unlikely to be in the audience (if signal bleed at other times
would be unavoidable). Nonetheless, the district court held that Section
505 is unconstitutional, because the court believed that it could hypothesize
an entirely untried version of another statute-a version not proposed or
addressed as an alternative by any party to this case-that would in its
view be less restrictive. The district court's conclusions are insupportable.
I. In FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and a line of cases
that have followed it, this Court has consistently recognized that, in undertaking
First Amendment review of indecency on television and radio, a court must
be cognizant of the uniquely pervasive and intrusive presence of those media
in American homes and the unique accessibility of those media to children.
Unlike in other First Amendment contexts, the cost of unduly limiting Congress's
ability to act in this area is to disable society from serving critical
interests in the protection of children and privacy; it would leave children
exposed to graphic, sexually explicit audio and visual programming that
our society has long viewed as entirely inappropriate for them. Accordingly,
a court should be particularly careful in this context to accord deference
to Congress's reasonable, predictive judgments that a particular, carefully
tailored measure-such as Section 505-is the least restrictive alternative
that would achieve its ends. The district court entirely failed to accord
such deference, and its judgment should be reversed for that reason.
In any event, even under the exceptionally stringent standard of review
employed by the district court, Section 505 is constitutional. The district
court based its decision entirely on the prediction that its hypothetical,
enhanced version of Section 504 would prove to be a less restrictive alternative
to Section 505. The enhanced Section 504, however, would neither be an effective
alternative nor would it be less restrictive than Section 505. That is particularly
true with respect to the application of Section 505 to the increasing number
of cable systems that have the digital or other capacity to provide complete
blocking; applying Section 505 to them is constitutional because it imposes
no burden at all on speech. But it is also true with respect to the application
of Section 505 to the larger number of cable systems without digital or
other means to accomplish easy and inexpensive blocking.
The enhanced Section 504 would not be an effective alternative because it
would not serve the compelling interests underlying Section 505. As the
district court recognized, those interests include, inter alia, society's
interest in protecting children from sexually explicit materials, separate
and apart from its interest in helping parents to exercise their parental
authority. But the district court entirely failed to assess whether its
enhanced Section 504 would serve that fundamental interest. Even an enhanced
version of Section 504 would succeed in blocking signal bleed only if parents
affirmatively decided to avail themselves of the means offered to them to
do so. Inevitably some parents-probably a great many parents-will fail to
take advantage of those means, out of inertia, indifference, or distraction.
Under an enhanced version of Section 504, children of those parents, and
friends of those children, would thus remain exposed to sexually explicit
signal bleed, and society's independent interest in protecting children
would not be served. Under Section 505, by contrast, such children would
remain protected, unless and until their parents exercised their choice
to subscribe to a sexually explicit programming service.
The district court's hypothetical, enhanced Section 504 would also lead
to at least the same limitation on the availability of appellee's programming
as Section 505. The district court itself never analyzed whether cable operators
would respond to its enhanced Section 504 in the same way that they responded
to Section 505. But the court did find that, if an extremely modest number
of households (less than 3% to 6%) sought blocking of a channel under Section
504, the cost of providing that blocking would lead cable providers to drop
that programming altogether or time-channel it (if some kind of time-channeling
option were offered). In fact, if the enhanced Section 504 hypothesized
by the district court actually provided clear notice of the problem of signal
bleed on sexually explicit channels and easy availability of blocking devices,
it would certainly lead to a significant increase in the number of subscribers
requesting such devices. Accordingly, it would lead cable operators to drop
or time-channel appellees' programming-precisely the same result that the
district court believed would follow from the application of Section 505.
II. The district court also erred in holding that our filing of a notice
of appeal to this Court divested the district court of jurisdiction to rule
on our motions to alter or amend, and to correct, the judgment. Because
this Court's Rules leave uncertain the question whether such motions toll
the time for appealing, a prudent litigant in a case in which direct appeal
to this Court is authorized must file a notice of appeal even if the litigant
believes that it has meritorious grounds to seek postjudgment relief from
the district court. There is no reason why such a notice of appeal should
divest the district court of jurisdiction to rule on the motions for postjudgment
relief. That is particularly true prior to the time when the case is docketed
in this Court, because there is no possibility that the district court and
this Court would both be taking action on the same case before that time.
On the contrary, permitting the district court to rule on such motions before
docketing in this Court would potentially clarify the issues on appeal or
even make the further prosecution of the appeal in this Court unnecessary.
I. THE MEASURES REQUIRED BY SECTION 505 OF THE TELECOMMUNICATIONS ACT OF
1996 TO PROTECT CHILDREN AND THE PRIVACY OF THE HOME AGAINST SEXUALLY EXPLICIT
PROGRAMMING ON CABLE TELEVISION ARE CONSISTENT WITH THE FIRST AMENDMENT
A. First Amendment Scrutiny Of The Regulation Of Sexually Explicit Material
On Cable Television Must Be Conducted With Sensitivity To Society's Distinct
Interests In Protecting Children And In Protecting Against Unwanted Intrusions
Into The Privacy Of The Home
1. When reviewing government regulation of the content of constitutionally
protected speech, this Court generally has held that such regulation is
permissible only if it is narrowly tailored to serve a compelling interest.
Burson v. Freeman, 504 U.S. 191, 198-199 (1992). The Court has also recognized,
however, that "context is all-important," FCC v. Pacifica Foundation,
438 U.S. 726, 750 (1978), when conducting judicial review of the regulation
of indecency on broadcast media. In particular, the Court held in Pacifica
that "special treatment of indecent broadcasting" is "amply
justif[ied]," and it upheld a time-channeling regulation of indecency
on broadcast radio that prohibited the broadcast of such material during
hours when children were likely to be in the audience. Id. at 750. The Court
explained that among the justifications for such "special treatment"
are the facts that "the broadcast media have established a uniquely
pervasive presence in the lives of all Americans"; indecency on television
or radio "confronts the citizen * * * in the privacy of the home";
"the broadcast audience is constantly tuning in and out, [and] prior
warnings cannot completely protect the listener or viewer from unexpected
program content"; and "broadcasting is uniquely accessible to
children, even those too young to read." Id. at 748-749. In light of
those unique features, the Court held that a regulation that entirely prohibited
indecent speech during much of the broadcast day was constitutional, even
though a similar content-based restriction of non-obscene speech would surely
be unconstitutional in many other contexts. See id. at 750-751.9
The Court has consistently adhered to the principles of Pacifica. For example,
in Sable Communications, Inc. v. FCC, 492 U.S. 115, 127 (1989), the Court
noted that the "special treatment of indecent broadcasting" upheld
in Pacifica was justified because the regulation at issue there "did
not involve a total ban on broadcasting indecent material," but instead
"sought to channel it to times of day when children most likely would
not be exposed to it." Ibid. In addition, the Court pointed out that
Pacifica "relied on the 'unique' attributes of broadcasting, noting
that broadcasting is 'uniquely pervasive,' can intrude on the privacy of
the home without prior warning as to program content, and is 'uniquely accessible
to children, even those too young to read.'" Ibid. (quoting Pacifica,
438 U.S. at 733). More recently, in Reno v. American Civil Liberties Union
(ACLU), 521 U.S. 844 (1997), the Court held that "the most stringent
review" applies to regulation of indecency on the Internet, but it
reaffirmed that "special treatment of indecent broadcasting" by
means of non-criminal regulation is appropriate, id. at 867, essentially
for the reasons given above, see id. at 866-868.
2. The same "all-important" context that guided the Court's review
of regulation of over-the-air broadcast indecency in Pacifica is present
when the government regulates transmission of similar programming on cable
television, especially when the regulation offers the same time-channeling
option as in Pacifica. In Denver Area Educational Telecommunications Consortium,
Inc. v. FCC, 518 U.S. 727 (1996), the Court considered a challenge to several
statutory provisions that addressed indecency on cable television. None
of the opinions in Denver Area suggested that regulation of indecency on
cable television should be analyzed under standards that differ in any way
from the standards governing regulation of indecency on over-the-air broadcast
television and radio.
In a portion of the opinion authored by Justice Breyer that was identified
as the opinion of the Court, he stated that, in order to resolve the issues
in Denver Area, it was not necessary to "determine whether, or the
extent to which, Pacifica does, or does not, impose some lesser standard
of review where indecent speech is at issue." 518 U.S. at 755.10 But
however the nature of the scrutiny under Pacifica is described, elsewhere
in his opinion, in which he spoke for a plurality of the Court, Justice
Breyer relied heavily on Pacifica to uphold one of the cable television
regulations at issue there, id. at 744-748. Moreover, the plurality distinguished
Sable, in which the Court held unconstitutional a ban on indecent telephone
messages, on the ground that Sable, unlike Denver Area, involved "a
communications medium, telephone service, that was significantly less likely
to expose children to the banned material, was less intrusive, and allowed
for significantly more control over what comes into the home than either
broadcasting or the cable transmission system before us." Id. at 748.
The plurality concluded that, with respect to the way in which "parents
and children view television programming, and how pervasive and intrusive
that programming is[,] * * * cable and broadcast television differ little,
if at all." Ibid.
The separate opinion of Justice Kennedy in Denver Area also noted the significance
of context in reviewing regulation of indecency on television and radio.
Relying on Pacifica, Justice Kennedy stated that cable television channels
are "uniquely accessible to children" and that the "government
may properly act in many situations to prohibit intrusion into the privacy
of the home of unwelcome views and ideas which cannot be totally banned
from the public dialogue." 518 U.S. at 804 (Kennedy, J., concurring
in part, concurring in the judgment in part, and dissenting in part) (quoting
Cohen v. California, 403 U.S. 15, 21 (1971)). In Justice Kennedy's view,
those unique features of television programming raise "concerns [that]
are weighty and will be relevant to whether the law passes strict scrutiny."
3. There are factors present in this case that make it even clearer than
in Pacifica that some degree of governmental flexibility in regulation is
warranted. First, the regulation in Pacifica was aimed directly at a purposeful
communication between the broadcaster and willing listeners, and it rested
on the ground that the material broadcast was indecent and should not be
available to children. By contrast, Section 505 is aimed not at the intended
communication-the communication between those who produce sexually explicit
cable programs and those who subscribe to them-but at a byproduct of that
communication (signal bleed) that can be harmful to children.12 Cf. Schneider
v. State, 308 U.S. 147, 162 (1939). Insofar as the sexually explicit programmer
can communicate with its audience without creating that byproduct-as is
the case on cable systems with digital or other equipment that completely
blocks the programming to nonsubscribers (see page 40, infra), Section 505
imposes no cognizable restriction on speech at all. But insofar as the intended
communication creates signal bleed as a byproduct-a byproduct in which appellee
has not asserted any independent First Amendment interest, see J.S. App.
42a (noting that appellee did not "contend that signal bleed itself
is protected speech")- Section 505 requires that it be blocked or time-channeled
to hours when children are not likely to be in the viewing audience.13 Because
Section 505 is thus aimed not at expressive speech within its intended sphere,
but at a byproduct of that speech that creates a risk to children, the interests
served by Section 505 outweigh any countervailing First Amendment interests
even more than they did in Pacifica.14
Additionally, the burden on speech imposed by Section 505 is much less than
that imposed by the regulation in Pacifica, thus providing further support
for the need for some regulatory flexibility. Unlike in Pacifica, where
time-channeling to the safe-harbor hours was the only way in which the regulated
communication could be made, Section 505 permits transmission of sexually
explicit material at any time of the day or night on the increasing number
of cable systems that can completely block the signal, by digital or other
means, to nonsubscribers. In addition, the burden imposed on speech by Section
505, even on those cable systems that time-channel appellee's programming,
is not great. The district court found that one half or more of appellee's
viewers watch during the safe-harbor hours anyway, and their viewing therefore
would not be affected by time-channeling.15 Moreover, the great majority
of appellee's subscribers consist of those who watch on a pay-per-view basis,16
and its average pay-per-view subscriber purchases appellee's programming
five times per year, Tr. 90-91, and watches, on average, only one hour each
time, DX Vol. 2, No. 78, at 7. And even those subscribers may make use of
the videocassette recorders now located in most American homes to tape programming
during the safe-harbor hours and watch it whenever they wish.17 Both this
Court and the lower courts have recognized that some restriction on the
communications activities of adults may be constitutional if necessary to
serve the compelling interest in protecting minors.18
Finally, the risks to children posed by appellee's programming are substantially
greater than those present in Pacifica. Unlike the one-time broadcast of
inappropriate language-with no accompanying visual representation-at issue
in Pacifica, this case involves channels that carry "virtually 100%
sexually explicit adult programming." J.S. App. 6a, 42a, 47a. As described
above and in our lodgings (see pages 4-6, supra), the programming at issue
here consists largely of frequent, close-up, and graphic scenes of sexual
intercourse and related sex acts. The result, due to signal bleed, is "an
unbroken continuum of sexually explicit sounds and images, delivered without
invitation to [children's] home[s]." Id. at 73a n.26. Indeed, the sound
tracks from appellee's programming alone are much coarser and far more offensive
than the broadcast that was at issue in Pacifica. See page 6 and note 4,
supra. Children generally watch more television than do their parents, see
Denver Area, 518 U.S. at 744-745; they often do so when their parents are
not present, and they are thus likely to be subject to signal bleed before
their parents even know about it.19 Accordingly, the risks to children posed
by signal bleed-and the corresponding risks to society that would result
from eliminating the most effective means to deal with the problem-are highly
relevant to the First Amendment analysis.
4. a. Regardless of how the standard of review is characterized, each Member
of the Court in Denver Area recognized-as did the Court in Pacifica-that
the government is entitled to some flexibility in regulating indecency on
cable television. That conclusion is correct. In many other contexts, the
government's burden to justify regulation that has effects on protected
speech is particularly heavy, because the potential cost of curtailing government
regulation is presumed to be less than the potential cost of curtailing
speech. Here, however, for the reasons given above, the cost of unduly limiting
society's ability to impose the marginal limitation on speech that results
from Section 505 would be extraordinarily high. Indeed, in light of such
potential costs, it is not surprising that the Court has hesitated to apply
a rigid analysis to regulation of indecency on television and radio.
In the present case, it would be appropriate to recognize the needed flexibility
to accommodate society's interests in the context of indecent programming
on broadcast and cable systems, regardless of the level of scrutiny applied,
by giving effect to the long-accepted principle "that courts must accord
substantial deference to the predictive judgments of Congress." Turner
Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (plurality opinion);
see also Turner Broadcasting Sys., Inc. v. FCC, 520 U.S. 180, 196 (1997)
(plurality opinion); Action for Children's Television, 58 F.3d at 667. In
particular, Congress's judgment that a particular means (such as Section
505) of addressing the problem of indecency on television or radio is necessary
is entitled to substantial deference. Of course, Congress's determination
that a particular measure is necessary must reflect a reasonable choice
among the available alternatives, and judicial scrutiny is appropriate "to
assure that * * * Congress has drawn reasonable inferences based on substantial
evidence." Turner Broadcasting, 512 U.S. at 666. Moreover, the measure
chosen must directly aim at the problem of the availability of indecency
to minors on television or radio. But mere speculation that some other,
untested (and, in this case, ill-defined) measure would also accomplish
the desired end is insufficient to upset Congress's judgment. The need to
respect Congress's predictive judgments in this context is particularly
clear, because, as we explain below (see pages 35-40, infra), the question
whether Section 505 is less restrictive than other alternatives depends
in part on predictions about the effects of Section 505 and other hypothetical
measures on choices made by cable-operator third parties. 20
If these principles are heeded, the district court's judgment must be reversed.
The district court held Section 505 unconstitutional solely on the ground
that, as compared with an enhanced version of Section 504 that it hypothesized,
Section 505 was not the least restrictive measure that could have been enacted
to achieve Congress's compelling interests. As we demonstrate below, even
under the most stringent scrutiny employed by this Court, that conclusion
was mistaken, because the hypothesized alternative would not fully serve
the compelling interests advanced by Section 505 (see pages 29-35, infra),
and would not in any event turn out to be less restrictive of speech (see
pages 35-40, infra). Even if there were some doubt on those points, however,
there can be no doubt that Congress's determination that Section 505 was
necessary to achieve its ends-and that no other likely measure could accomplish
its goals without imposing at least as great a burden on speech-was at least
a reasonable one. Taking into account the "all-important context"
in which Section 505 operates, that should be sufficient to establish that
Section 505 is constitutional.
b. Far from giving careful consideration to the context in which Section
505 operates, as required by Pacifica and the subsequent decisions of this
Court discussed above, the district court gave it no weight at all. The
district court did acknowledge at one point that "the context of [Section
505's] content-based restriction must * * * be considered," because
"[c]able television is a means of communication that is both pervasive
and to which children are easily exposed." J.S. App. 26a. But the court
proceeded to attach essentially no significance to that "context"
in holding that "[t]he Government must prove that * * * no less restrictive
measures are available to achieve the same ends the government seeks to
achieve." Ibid. The court applied its "least restrictive alternative"
test in a particularly rigorous manner, holding that Section 505 is unconstitutional
solely because the court could imagine an alternative, entirely hypothetical
scheme whose practicality, cost, and legality have never been tested. See
id. at 35a-39a.
Indeed, the district court held its enhanced version of Section 504 to be
a less restrictive alternative to Section 505 despite the fact that there
had been no opportunity for litigation regarding its adequacy or consequences.
Appellee had relied on Section 504 as enacted-without all of the district
court's enhancements-as a less restrictive alternative, see J.S. App. 19a,
and the government therefore had litigated that issue, not the adequacy
of the district court's hypothetical version of the statute.21 Apparently,
the district court believed that regulations like Section 505 are so disfavored
that the court's ability to hypothesize an entirely untried and unscrutinized
alternative was sufficient to establish that Section 505 is unconstitutional.
The district court's methodology was inconsistent with this Court's emphasis
on the care with which review must proceed in this context, so as not unduly
to impair society's ability to serve the compelling interests at stake.
B. Even If Strict Scrutiny Applies, The Hypothetical Version Of Section
504 Posited By The District Court Is Not An Adequate And Less Restrictive
Even under the exceptionally strict standard of review it employed in this
case, the district court erred in concluding that its enhanced version of
Section 504 would be sufficient to promote the interests underlying Section
505 and that it would be less restrictive than Section 505.
1. The enhanced Section 504 would not be a suitable alternative to Section
505 because it does not fully serve the compelling interests underlying
In order to qualify as a "less restrictive alternative," a measure
must be not only less restrictive; it must also be "as effective"
as the regulation being challenged. Reno v. ACLU, 521 U.S. at 874. See also
Sable Communications v. FCC, 492 U.S. at 130-131 (narrow tailoring requirement
not met when the record suggests a less restrictive and possibly "extremely
effective" alternative); Dial Info. Serv. Corp. v. Thornburgh, 938
F.2d 1535, 1541, 1542 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992).
The district court's enhanced version of Section 504 would not be a satisfactory
alternative to Section 505, because it would not be as effective in protecting
the compelling interests that the district court itself recognized supported
The district court identified three interests that support Section 505:
1) the Government's interest in the well-being of the nation's youth-the
need to protect children from exposure to patently offensive sex-related
material; 2) the Government's interest in supporting parental claims of
authority in their own household-the need to protect parents' right to inculcate
morals and beliefs [i]n their children; and 3) the Government's interest
in ensuring the individual's right to be left alone in the privacy of his
or her home-the need to protect households from unwanted communications.
J.S. App. 26a-27a. See id. at 32a (concluding, after discussing each of
the above interests, "that § 505 addresses three interests which
in sum can be labeled 'compelling'").22
This Court has carefully distinguished between the first and second of those
interests in the past, referring in Reno v. ACLU both to "the State's
independent interest in the well-being of its youth," and to "the
principle that 'the parents' claim to authority in their own household to
direct the rearing of their children is basic in the structure of our society."
521 U.S. at 865 (emphasis added) (quoting Ginsberg v. New York, 390 U.S.
at 639). Our society has long recognized the authority of parents to decide
how to raise their children. See Prince v. Massachusetts, 321 U.S. 158,
166 (1944). But it has also long recognized that society itself has an interest
in the upbringing of youth, especially when parents, as a result of inertia
or indifference or the competing claims of other responsibilities, fail
to exercise their own authority. See id. at 166-170. See also Action for
Children's Television, 58 F.3d at 661-663.
In determining whether its hypothetical, enhanced version of Section 504
would provide a less restrictive alternative to Section 505, the district
court entirely ignored society's independent interest in seeing to it that
children are not exposed to sexually explicit materials. The district court
[W]ith adequate notice of the issue of signal bleed, parents can decide
for themselves whether it is a problem. Thus to any parent for whom signal
bleed is a concern, § 504, along with 'adequate notice,' is an effective
solution. In reality, § 504 would appear to be as effective as §
505 for those concerned about signal bleed, while clearly less restrictive
of First Amendment rights.
J.S. App. 37a-38a. It seems highly unlikely that the district court was
correct in its apparent belief that its enhanced version of Section 504
would be sufficient to inform all parents of the problem of signal bleed
and to permit them to eliminate it easily and effectively. But even if it
were, such a measure would serve only two of the interests the district
court identified-the interests in "protect[ing] parents' right to inculcate
morals and beliefs [i]n their children" and "ensuring the individual's
right to be left alone in the privacy of his or her home." Id. at 26a.
Thus, under such an enhanced version of Section 504, parents who had strong
feelings about the matter could see to it that their children did not view
signal bleed-at least in their own homes.
The district court's enhanced version of Section 504 would not, however,
serve society's independent interest in protecting minors from exposure
to indecent, sexually explicit materials, and the district court's reasoning
takes no account of that interest. Even an enhanced version of Section 504
would succeed in blocking signal bleed only if, and after, parents affirmatively
decided to avail themselves of the means offered them to do so. There would
certainly be parents- perhaps a large number of parents-who out of inertia,
indifference, or distraction, simply would take no action to block signal
bleed, even if fully informed of the problem and even if offered a relatively
easy solution.23 There also are children who would view signal bleed at
the homes of friends whose parents, due to the same factors, do not act
under an enhanced Section 504 to block signal bleed. See J.S. App. 52a,
80a. Society has an interest independent of the choices made (or not made)
by parents in seeing to it that children are not exposed to sexually explicit
materials. Section 505 would protect that interest, by ensuring that children
are not exposed to signal bleed as a result of inertia, indifference, or
distraction; Section 504, by contrast, would not protect that interest,
since children would be exposed to signal bleed of sexually explicit materials
whenever parents failed, for whatever reason, to take the affirmative steps
necessary to obtain blocking.
We are not referring here to that presumably very small number of children
whose parents positively want their children to be exposed to sexually explicit
programming. Even if we assume, arguendo, that the interests of those parents
should prevail over the interests of society in protecting children from
indecent material (but see Prince, 321 U.S. at 166-170; cf. Reno v. ACLU,
521 U.S. at 878 (reserving that question in the context of the Internet)),
such parents' interests would be protected equally well either by Section
505 or by a hypothetical enhanced Section 504, for under either they would
obtain access to sexually explicit channels by subscribing to them.24 The
children of parents who fail to act as a result of inertia, indifference,
or distraction, however, would be protected only by Section 505. The district
court gave no weight whatsoever to society's independent interest in protecting
those children when it ruled that a hypothetical enhanced version of Section
504 would be an adequate alternative to Section 505.
2. The enhanced Section 504 is not less restrictive than Section 505 because
it is reasonably likely to lead to at least the same effect on the availability
of appellee's programming as Section 505
The court's analysis of the restrictions imposed by Section 505 was based
on its finding that "time channeling has proven to be the method of
compliance of choice among" cable operators because "no other
system-wide blocking technique is economically feasible." J.S. App.
33a & n.23. See also id. at 16a-17a.25 In other words, with respect
to cable systems that do not yet employ digital or other means of transmission
that eliminate signal bleed, "the distribution of lockboxes to a sufficient
number of customers to effectively control the problem of signal bleed is
not economically feasible." Id. at 21a. In turn, the court reasoned,
the adoption of such time-channeling by cable operators "amounts to
the removal of all sexually explicit programming at issue during two thirds
of the broadcast day from all households on a cable system." Id. at
33a. Time-channeling thus "diminishes Playboy's opportunities to convey,
and the opportunity of Playboy's viewers to receive, protected speech."
Based on the court's own factual findings, there is no basis for concluding
that an application of the court's hypothetical, enhanced version of Section
504 would not have at least the same effects; that is so because cable operators
under an enhanced Section 504 could be expected either to drop appellee's
programming altogether or to transmit appellee's programming only during
the safe-harbor hours (that is, if time-channeling was also an option in
a hypothetical, enhanced Section 504). Indeed, the same economic factors
that now lead to time-channeling under Section 505 would lead to dropping
of appellee's sexually explicit programming services altogether (or perhaps,
if the option were offered, time-channeling) under Section 504.
The district court itself noted the testimony in the record 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 only 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% to 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 would be sufficient to lead to dropping Playboy's programming
altogether under an enhanced Section 504 (or time-channeling, if such an
option were included in an enhanced Section 504 as a means of compliance)-and
a consequent effect on the availability of appellee's sexually explicit
programming at least as great as that the district court found to occur
under Section 505.
A significant increase in the number of subscribers seeking lockboxes would
inescapably follow if a truly effective notice requirement were added to
Section 504. The district court itself found that the actual Section 504-without
enhanced notice and without easy availability of blocking devices-had led
to less than 0.5% of households requesting blocking. J.S. App. 20a &
n.19. The court intended to design its enhanced version of Section 504 specifically
in order to provide each subscriber with genuine, easily understandable
notice of the problem of signal bleed and a quick and easy means to stop
it through ready availability-via "a telephone call," id. at 37a-of
blocking devices. See id. at 36a-37a.26 Moreover, such notice would have
to be repeated on a regular basis (though the district court did not specify
how often) on non-sexually explicit channels, and special notice would have
to be given whenever a cable operator changed the channel on which a sexually
explicit programming service was carried. Id. at 37a. If a genuinely effective
system of notice and easily available blocking were instituted and proved
to be as effective as the district court evidently anticipated, the number
of subscribers requesting blocking could be expected to exceed the minimal
number necessary to render carriage of the sexually explicit channels uneconomical.
That is especially so in light of the fact that the various forms of notice
contemplated by the district court, including regular notice on the cable
operators' other channels, would themselves impose burdens, in the form
of financial costs and interference with editorial discretion, on cable
Indeed, the district court's enhanced version of Section 504 could well
result in a greater limitation on the availability of appellee's programming
than does Section 505. Section 504, as enacted by Congress, does not include
a safe-harbor provision like Section 505. Accordingly, if Section 504 were
enhanced-as the district court envisioned-by adding requirements for notice
to subscribers of the problem of signal bleed and the easy availability
of blocking devices, the increased costs that cable operators would have
to incur in affording notice and furnishing blocking devices might well
make it uneconomical for them to carry appellee's programming at all. That
would amount to a greater limitation on the availability of appellee's speech
than the time-channeling that can be expected to result from Section 505.
That consequence would be even more likely to result if Section 504 were
altered to provide not only for the district court's enhancements, but also
for a safe-harbor like that in Section 505. At least some subscribers, given
effective notice of the problem, would likely seek lockboxes even if their
cable operators limited the availability of appellee's programming to the
safe-harbor hours. To avoid the costs of supplying those lockboxes, many
cable operators would, once again, simply choose to drop appellee's programming
Although the district court made the key factual findings regarding the
economic impact of subscriber requests for lockboxes on which our argument
here relies, see J.S. App. 21a-22a, the court simply overlooked those findings
when it analyzed the relative effects on the availability of appellee's
programming resulting from Section 505 and alternatives. To be sure, the
district court noted that "Section 504 * * * is less restrictive of
the First Amendment rights of Playboy and its subscribers" than Section
505 because it operates on a voluntary basis and permits cable operators
to broadcast appellee's programming 24 hours per day. Id. at 34a. But that
finding concerns the actual Section 504, as enacted by Congress and containing
no notice provisions-a statute that the district court itself viewed as
an inadequate alternative to Section 505. See J.S. App. 38a. Perhaps because
no party had suggested that an enhanced Section 504 would be a less restrictive
alternative and the parties' argument was therefore not directed to that
point, the district court never analyzed whether the enhanced version of
Section 504 that it had hypothesized would result in the same limitation
on the availability of appellee's programming as Section 505. Had it done
so, its own factual findings would have led to the conclusion that Section
504 would be at least as restrictive as Section 505. At the very least,
the proposition that a fully effective notice requirement of the sort the
district court posited would not result in at least the same restriction
on speech as Section 505 has not been demonstrated with the clarity necessary
to invalidate an Act of Congress on least-restrictive-alternative grounds.
C. At The Very Least, Section 505 Is Constitutional As Applied To The Transmission
Of Sexually Explicit Programming By Operators That Have The Technology To
Eliminate Signal Bleed
Finally, it is significant that Section 505 imposes a minimal burden on
speech of those cable systems that have the ready capability to use digital
or other modern technologies that completely eliminate signal bleed when
transmitting sexually explicit programming services. The district court
noted that an increasing number of cable systems use such technology. J.S.
App. 9a, 18a n.17. Indeed, there was evidence in this case that all of the
cable systems that transmit AdulTVision, a sexually explicit programming
service operated by Playboy, have the capacity for complete encryption of
programming so that nonsubscribers will not have any access to it. DX Vol.
8, No. 237, at PEIOOO159A. With respect to systems that already employ such
digital or other means of transmission that eliminate signal bleed, Section
505 requires only that the cable operators-whose systems sometimes include
both analog and digital components-use the technology that they already
have in place to ensure that there is no signal bleed of sexually explicit
programming services. It therefore imposes no burden on speech with respect
to those systems, and it should be held constitutional at least in application
II. THE DISTRICT COURT ERRED IN CONCLUDING THAT IT WAS DIVESTED OF JURISDICTION
TO DECIDE POST-TRIAL MOTIONS WHEN THE GOVERNMENT FILED A NOTICE OF APPEAL
OF THE PERMANENT INJUNCTION
The district court's dismissal of the government's post-trial motions was
mistaken. The first notice of appeal, filed on January 19, 1999, within
the 20-day period prescribed by Section 561(b) of the Act but after the
post-trial motions were filed seven days earlier, did not deprive the district
court of jurisdiction to consider the government's motions relating to the
terms of the judgment.
A. In an appeal to a court of appeals, the filing of a timely motion to
alter or amend the judgment under Federal Rule of Civil Procedure 59(e)
or the filing (not more than ten days after entry of judgment) of a motion
for relief under Federal Rule of Civil Procedure 60(a) tolls the time within
which the notice of appeal must be filed. Fed. R. App. P. 4(a)(4)(A)(iv)
and (vi). A notice of appeal filed before disposition of such a motion becomes
effective only when the order disposing of the last such motion is entered.
Fed. R. App. P. 4(a)(4)(B)(i). The reason for this rule is that when such
a motion is filed, "the case lacks finality." 11 Charles Alan
Wright et al., Federal Practice and Procedure § 2821, at 220 (2d ed.
This Court's rule governing certiorari, Sup. Ct. R. 13.3, is similar to
Rule 4(a)(4) of the Federal Rules of Appellate Procedure in that it provides
for tolling of the time for filing a certiorari petition while a petition
for rehearing is pending in the court of appeals. The Court's rules governing
appeals, however, do not address the consequences of filing a Rule 59(e)
or Rule 60(a) motion in the district court. The time limits for filing a
notice of appeal in such a case are "not free from doubt * * * because
Rule 18.1 does not contain the statement, in former appeal Rule 11.3 (and
in current certiorari Rule 13.3), that 'if a petition for rehearing is timely
filed by any party in the case, the time for filing the notice of appeal
for all parties * * * runs from the date of the denial of rehearing or the
entry of a subsequent judgment.'" Robert L. Stern et al., Supreme Court
Practice § 7.2(c), at 388 (7th ed. 1993). See also ibid. (noting that
it is "most unlikely" that this Court meant to abandon that rule
sub silentio). Through caution in this uncertain area of the law, we filed
a notice of appeal within 20 days of entry of the injunction.28
B. Our filing of the first notice of appeal while the two post-trial motions
were pending before the district court did not deprive the district court
of jurisdiction to consider those motions. To begin with, Rule 60(a) itself
permits a district court to correct clerical mistakes in a judgment while
an appeal is pending: "During the pendency of an appeal, such mistakes
may be so corrected before the appeal is docketed in the appellate court,
and thereafter while the appeal is pending may be so corrected with leave
of the appellate court." On March 18, 1999, when the district court
dismissed the Rule 60(a) motion for lack of jurisdiction, this appeal had
not yet been docketed in this Court. Accordingly, the district court had
jurisdiction to correct the mistake "just as if the case were still
pending in the district court." 11 Charles Alan Wright et al., Federal
Practice and Procedure § 2856, at 251 (2d ed. 1995).29
The filing of the notice of appeal also did not divest the district court
of jurisdiction to rule on the Rule 59(e) motion that was already pending
when the notice of appeal was filed. This Court's Rule 18.1, which governs
the commencement of appeals to this Court, is comparable to Rule 4 of the
Federal Rules of Appellate Procedure as it existed before the 1979 amendments.
Interpreting the pre-1979 Rule 4, this Court concluded in Griggs v. Provident
Consumer Discount Co., 459 U.S. 56, 58-59 (1982) (per curiam), that while
a district court lacked jurisdiction to entertain a Rule 59(e) motion after
a notice of appeal had been filed, "if the timing was reversed-if the
notice of appeal was filed after the motion to vacate, alter, or amend the
judgment- * * * the district court retained jurisdiction to decide the motion,
but the notice of appeal was nonetheless considered adequate for purposes
of beginning the appeal process." The reason this "theoretical
inconsistency" was permitted under the pre-1979 rule was that there
was little danger that a court of appeals and a district court would be
acting simultaneously on the same judgment, since a district court at that
time did not automatically notify the court of appeals that a notice of
appeal had been filed. Id. at 59.30
A direct appeal to this Court under Rule 18.1 functions similarly. After
the notice of appeal is filed, the appellant is given 60 days within which
to file its jurisdictional statement. Until the matter is docketed in this
Court, there is no chance that the district court would be acting on a judgment
at the same time as this Court. Because the jurisdictional statement in
this case had not been filed at the time the district court dismissed the
Rule 59(e) motion, that dismissal was improper and should be reversed.31
A litigant who wants to file a post-judgment motion should not have to risk
forfeiting the right to appeal in order to do so.
The judgment of the district court (and, if necessary, the March 18, 1999,
order of the district court) should be reversed.
SETH P. WAXMAN
WILLIAM B. SCHULTZ
Acting Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JAMES A. FELDMAN
Assistant to the Solicitor General
JACOB M. LEWIS
CHRISTOPHER J. WRIGHT
1 At the trial in this case, the court reserved ruling on admissibility
of evidence until after trial. Tr. 811-812. The parties then submitted letters
to the court, dated March 25, 1998, attaching their respective lists of
exhibits. The letters were docketed by the district court on April 17, 1998.
Docket Entries 243, 244. The letters set forth the parties' agreement that
the parties' exhibits may be admitted into evidence subject to objections
as to relevancy, to be asserted, if at all, in connection with the parties'
reply briefs, as Judge Farnan had indicated at the pretrial conference.
No such objections were made in the parties' reply briefs in the district
2 A useful summary of the nature of the programming at issue in this case
was provided by the marketing vice-president of Spice, which operates several
sexually explicit programming services similar to those operated by appellee
Playboy. He testified (Nolfi Dep. 35) regarding a document that provides
the "content guidelines" used for the Spice and Spice Hot networks.
According to the document (DX Vol. 1, No. 73), the Spice network depicts
such activities as "female masturbation/external," "girl/
girl sex," "oral sex/cunnilingus," "explicit language,"
"wide shot penis/ flaccid," and "wide shot vagina."
Id. at TWC00132. According to the same document, programming on the even
more explicit Spice Hot network depicts "female masturbation with penetration,"
"male masturbation," "medium shot penis/erect," "oral
sex/fellatio," "vaginal penetration/ objects," "vaginal
penetration/penis," and "vaginal penetration/tongue." Ibid.
3 The videotape shows a scene in which a man performs oral sex on a woman.
The video images, while scrambled, are discernible. The entirely audible
audio portion contains four-letter words and vulgar references to sexual
organs. DX 1.
4 The record contains other evidence of partially scrambled transmissions
by Playboy and Spice. For example, Defendants' Exhibit 4 contains partially
scrambled scenes videotaped from the Playboy Channel in Orange, California.
Harris Decl., DX Vol. 1, No. 49, at para. 5. The scenes depict "images
of a nude woman caressing herself and then of two nude women in the water
and in a boat, caressing each other." J.S. App. 52a. Defendants' Exhibit
5 is an audiotape of the Spice Channel in early 1994 in the Oxnard, California
home of a non-Spice subscriber. Allen Decl., DX Vol. 1, No. 48, at para.
5. The tape contains "the sounds of what appear to be repeated sexual
encounters accompanied by assorted orgiastic moans and groans." J.S.
5 Senator Feinstein noted that the cable industry association had adopted
voluntary guidelines that called for cable operators to provide for free
blocking upon request. 141 Cong. Rec. at S8167. At the time Senator Feinstein
and Senator Lott proposed the provision ultimately enacted as Section 505,
the Senate bill, as reported by the Committee on Commerce, Science and Transportation,
already contained a requirement for blocking upon request of programming
unsuitable for children. See S. 652, 104th Cong., 1st Sess. § 640 (1995),
reprinted in S. Rep. No. 23, 104th Cong., 1st Sess. 122 (1995). That requirement
was revised by the Conference Committee to apply to all programming, not
merely programming unsuitable for children, H.R. Conf. Rep. No. 458, 104th
Cong., 2d Sess. 192 (1996), and it was enacted in that form as Section 504
of the Telecommunications Act of 1996, 110 Stat. 136.
6 Playboy has recently purchased Spice, which did not participate in the
proceedings after this Court affirmed the denial of a preliminary injunction,
and it is no longer a party to this case. Chicago Tribune, Mar. 16, 1999,
available in 1999 WL 2853823.
7 Judge Farnan had entered a temporary restraining order on March 7, 1996,
at the outset of the case, which remained in effect until this Court summarily
affirmed the district court's denial of the motion for a preliminary injunction.
Playboy Entertainment Group, Inc. v. United States, 918 F. Supp. 813 (D.
Del. 1996) (reprinted in Mot. to Aff. App. 1a-17a); see J.S. App. 2a, 19a.
8 That period began on March 9, 1996, when the Telecommunications Act went
into effect, and ended on May 18, 1997, when Section 505 was implemented
after the denial of a preliminary injunction was affirmed by this Court
and the temporary restraining order was finally lifted. J.S. App. 19a; see
note 7, supra.
9 See also 438 U.S. at 750-751 (Powell, J., concurring in part and concurring
in the judgment) ("The result turns * * * on the unique characteristics
of the broadcast media, combined with society's right to protect its children
from speech generally agreed to be inappropriate for their years, and with
the interest of unwilling adults in not being assaulted by such offensive
speech in their homes.").
10 In his separate opinion, Justice Kennedy, joined by Justice Ginsburg,
stated that he joined that portion of the opinion "insofar as it applies
strict scrutiny." See 518 U.S. at 812 (Kennedy, J., concurring in part,
concurring in the judgment in part, and dissenting in part); see also id.
at 803-805 (noting that "Pacifica conducted a context-specific analysis
of the FCC's restriction of indecent programming during daytime hours,"
and rejecting "a blanket rule of lesser protection for indecent speech").
11 In his opinion concurring in the judgment in part and dissenting in part
in Denver Area, Justice Thomas noted that the Court's "precedents establish
that government may support parental authority to direct the moral upbringing
of their children by imposing a blocking requirement as a default position."
518 U.S. at 832. Under that principle, Section 505 is constitutional.
12 As the district court noted at the preliminary injunction stage of this
case, the aim of the statute is also one of the differences between Section
505 and one of the provisions held unconstitutional in Denver Area. As the
district court explained, "Section 505 differs * * * from the statute
at issue in Denver Consortium and from most statutes that are directed at
speech or at the regulation of speech in that the target of § 505 is
not the speech itself, i.e., sexually explicit adult programming. The target
is signal bleed, a secondary effect of the transmission of that speech."
J.S. App. 69a. See also ibid. ("[S]ignal bleed is intruding into the
homes of television viewers who have chosen not to receive the underlying
sexually explicit programming.").
13 Thus, the effect of Section 505 is carefully targeted at parties (programmers
of sexually explicit material and non-subscribers) who have no interest
in communicating with each other.
14 Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975), is not to the
contrary. In that case, the Court held unconstitutional an ordinance forbidding
drive-in theaters from showing movies containing nudity visible from a public
street. In addressing the claim that the ordinance was constitutional as
an attempt to protect minors, the Court held that the ordinance was overbroad
because it "is not directed against sexually explicit nudity, nor is
it otherwise limited." Id. at 213. Section 505, by contrast, is directed
solely at sexually explicit programs broadcast on sexually explicit programming
services. Moreover, unlike the ordinance in Erznoznik, Section 505 is directed
at an instance "when the speaker intrudes on the privacy of the home,"
id. at 209-a context in which the Court in Erznoznik acknowledged the government's
authority to act. Ibid. Cf. People v. Starview Drive-In Theatre, Inc., 427
N.E.2d 201, 211-212 (Ill. App. Ct. 1981) (holding constitutional an ordinance
forbidding drive-in theaters from showing sexually explicit material visible
from the street or a private residence), appeal dismissed, 457 U.S. 1113
15 The district court found that "30 to 50% of all adult programming
is viewed by households prior to 10 p.m." J.S. App. 18a. That means
that 50-70% of adult programming is viewed after 10:00 p.m., during the
16 The district court found that "revenues from pay-per-view programming
constitute the vast majority of Playboy's revenue." J.S. App. 16a n.13.
The court found that "[t]he number of subscribers watching Playboy
Television in a year is between 800,000 and 1.7 million." Id. at 18a
n.16. The far smaller number of average monthly subscribers can be found
in an exhibit that was filed under seal to preserve appellee's confidential
business information, DX Vol. 11, No. 134, at PBD005 (Average Monthly Subs
17 The FCC has estimated that, as of June 1998, 88% of all households with
televisions own at least one VCR. In re Annual Assessment of the Status
of Competition in Markets for the Delivery of Video Programming, 13 F.C.C.R.
24284, para. 106 (1998) (Fifth Annual Report).
18 See Denver Area, 518 U.S. at 741 (plurality opinion) ("This Court
* * * has consistently held that government may directly regulate speech
to address extraordinary problems, where its regulations are appropriately
tailored to resolve those problems without imposing an unnecessarily great
restriction on speech."); Sable Communications, 492 U.S. at 128 (suggesting
that restrictions on dial-a-porn to ensure use only by adults may be constitutional);
Action for Children's Television, 58 F.3d 654 (D.C. Cir. 1995) (en banc)
(sustaining statutory provision and FCC regulation prohibiting broadcasting
of indecent material between 6:00 a.m. and 10:00 p.m.); Crawford v. Lungren,
96 F.3d 380, 387-389 (9th Cir. 1996) (ordinance banning sale of materials
harmful to minors in unattended news racks held constitutional), cert. denied,
520 U.S. 1117 (1997); American Booksellers v. Webb, 919 F.2d 1493, 1501
(11th Cir. 1990) (statute banning display of materials harmful to minors
in portions of stores in which minors are permitted held constitutional);
Upper Midwest Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1394-1395
(8th Cir. 1985) (same); M.S. News Co. v. Casado, 721 F.2d 1281, 1288-1289
(10th Cir. 1983) (same).
19 There was substantial evidence at trial that parents do not become aware
of signal bleed until after their children have encountered it. See, e.g.,
Cavalier Dep. 10-16, 17; DX Vol. 1, No. 45, paras. 4-6 (Mahlo Decl.); Omlin
Dep. 16; Ciciora Dep. 45. See also J.S. App. 35a.
20 Cf. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (quoting
Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 41-42 (1976)) (standing
does not lie where claimed injury is the result of "the independent
action of some third party not before the Court"); id. at 580 (Kennedy,
J., concurring in part and concurring in the judgment) ("Congress has
the power to define injuries and articulate chains of causation that will
give rise to a case or controversy where none existed before.").
21 The district court agreed with the government that "[i]f 'adequate
notice' is not provided, § 504 will no longer be a viable alternative
to § 505." J.S. App. 38a. See also id. at 19a ("[I]f the
§ 504 blocking option is not being promoted, it cannot become a meaningful
alternative to the provisions of § 505."); id. at 20a ("If
* * * § 504 is to be an effective alternative to § 505, adequate
notice of the availability of the no-cost blocking devices is critical.").
22 Although the district court ultimately accepted that sufficient evidence
had been introduced to establish each of the interests, it noted that it
was "troubled by the absence of evidence of harm presented both before
Congress and before [the court] that the viewing of signal bleed of sexually
explicit programming causes harm to children." J.S. App. 30a. The district
court's concern was misplaced. The government need not introduce empirical
evidence in each case that minors are harmed by exposure to indecent, sexually
explicit material. Concerns about minors' exposure to such material are
based on commonly held moral views about the upbringing of children, not
only on empirical, scientific evidence. This Court has repeatedly held,
over a period of many years and without referring to specific sociological
or psychological data demonstrating harm, that society has a compelling
interest in protecting children from exposure to indecent, sexually explicit
materials. See, e.g., Reno v. ACLU, 521 U.S. at 869 ("'[T]here is a
compelling interest in protecting the physical and psychological well-being
of minors' which extend[s] to shielding them from indecent messages that
are not obscene by adult standards.") (quoting Sable Communications,
492 U.S. at 126); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683-684
(1986); New York v. Ferber, 458 U.S. 747, 756-757 (1982); Ginsberg v. New
York, 390 U.S. 629, 640-643 (1968). In the Denver Area case, the Court's
unanimity on this point was particularly striking. See 518 U.S. at 743 (plurality
opinion) ("[T]he provision before us comes accompanied with an extremely
important justification, one that this Court has often found compelling-the
need to protect children from exposure to patently offensive sex-related
material."); id. at 779 (O'Connor, J., concurring in part and dissenting
in part) (The regulations at issue "serve an important governmental
interest: the well-established compelling interest of protecting children
from exposure to indecent material."); id. at 806 (Kennedy, J., concurring
in part, concurring in the judgment in part, and dissenting in part) ("Congress
does have * * * a compelling interest in protecting children from indecent
speech."); id. at 832 (Thomas, J., concurring in the judgment in part
and dissenting in part) ("Congress has a 'compelling interest in protecting
the physical and psychological well-being of minors' and * * * its interest
'extends to shielding minors from the influence of [indecent speech] that
is not obscene by adult standards.'").
23 Studies have confirmed that sales of a good or service will be higher
if consumers are required to take action to refuse it than if a mere failure
to act is deemed to be a refusal of the good or service. For example, telephone
companies offering an "optional maintenance plan" for wires inside
the subscriber's residence achieved a median subscription rate of 44% among
50 positive option offers (the subscriber must affirmatively request the
plan) and a median rate of 80.5% among 22 unilateral negative option offers.
See Dennis D. Lamont, Negative Option Offers in Consumer Service Contracts:
A Principled Reconciliation of Commerce & Consumer Protection, 42 UCLA
L. Rev. 1315, 1330-1331 (1995). Similarly, Canadian cable programmers have
reported that such "negative option" offers for new channels resulted
in 60%-70% subscription rates, far higher than the 25% rates resulting from
standard (positive option) marketing methods. Id. at 1331-1332. See also
In re Columbia Broad. Sys., Inc., 72 F.T.C. 27, 337-338 (1967) (FTC action
against record club) ("In practice, the Club's officials anticipate
in advance that approximately 35% of the members of its largest ('popular')
division will not return the card and hence will receive and accept the
record selected for them by the Club.").
Indeed, precisely because negative option sales give an unfair advantage
to the provider of a good or service, Congress has expressly prohibited
cable operators from using negative option billing. See 47 U.S.C. 543(f)
("A cable operator shall not charge a subscriber for any service or
equipment that the subscriber has not affirmatively requested by name,"
and the subscriber's "failure to refuse a cable operator's proposal
to provide such service or equipment shall not be deemed to be an affirmative
request for such service or equipment."); 47 C.F.R. 76.981 (FCC regulation
prohibiting negative option billing). See also 16 C.F.R. 425.1 (FTC regulation
regarding negative option plans).
24 We leave out of the analysis altogether those parents or other individuals
who do not want to subscribe to Playboy's programming but who want signal
bleed because they would like to receive Playboy's sexually explicit programming
without paying for it. Such individuals have no cognizable interest in receiving
signal bleed from a channel to which they do not subscribe.
25 Appellee has periodically argued that there are various other alternative
methods to protect children against signal bleed from sexually explicit
programming services, such as set-top convertors and so-called child lock-out
devices on some modern television sets. See Mot. to Aff. 4-5. The district
court, however, relied only on the enhanced Section 504, rather than any
of those methods, as a less restrictive alternative to Section 505. Extensive
evidence at trial demonstrated that those alternative methods are ineffective,
difficult for parents to operate, and easy for children to circumvent. See
Defs. Post-Trial Reply 15-18. The district court's reliance on its enhanced
Section 504 as the alternative suggests that it found that evidence concerning
the deficiencies of other proffered alternatives highly probative. As appellee
concedes, the "V-chips" now included in most new television sets
"do not address the issue of signal bleed," Mot. to Aff. 5 n.4,
because the imperfect scrambling that creates the problem of signal bleed
distorts or obliterates the program classification (ratings) codes that
the V-chip must interpret in order to block the programming. DX Vol. 10,
No. 82, paras. 9-15.
26 Whether a scheme of adequate notice and easy availability of blocking
devices could be devised that did not result in exorbitant costs, insuperable
enforcement difficulties, or distinct legal problems is open to substantial
doubt. For example, the evidence at trial showed that, even where parents
have notice of the problem of signal bleed, parents attempting to remedy
the problem have sometimes had to make repeated phone calls to their cable
operators-and even to local government supervising authorities-before they
could obtain blocking of the signal bleed. See J.S. App. 21a (citing evidence).
In light of the built-in financial incentive that cable operators have to
discourage blocking (since blocking costs them money), it should not be
surprising that this kind of problem has arisen.
27 At least one of the notice mechanisms identified by the district court-advertising
on non-sexually explicit channels the problem of signal bleed of sexually
explicit programming and the availability of Section 504 blocking-could
easily have the anomalous effect of informing children of the availability
of signal bleed and encouraging them to watch it in those homes in which
parents do not happen to request the Section 504 blocking solution.
28 In FCC v. League of Women Voters, 468 U.S. 364, 373 n.10 (1984), the
Court held that under former Supreme Court Rule 11.3, a direct appeal taken
during the pendency of a Rule 59 motion was permissible since the motion
did not seek alteration of the rights adjudicated in the original judgment.
See FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 212 (1952)
("The test is a practical one. The question is whether the lower court,
in its second order, has disturbed or revised legal rights and obligations
which, by its prior judgment, had been plainly and properly settled with
finality."). In this case, the post-trial motions arguably did not
seek to alter the rights adjudicated. The Rule 59(e) motion here asked the
district court to limit the injunction to Playboy and thus would not have
affected Playboy's rights. The Rule 60(a) motion asked the district court
to include in its injunction what the court in its underlying decision announced
it was requiring-that Playboy must ensure in its contractual arrangements
that cable operators provide "adequate notice" of the availability
of free lockboxes.
29 Even if the case had already been docketed in this Court by March 18,
Rule 60(a) itself would have permitted the district court to adjudicate
the motion "with leave of [this] Court."
30 As the Court explained in Griggs, the 1979 amendments to Rule 4 altered
the situation by making it clear that the court of appeals had no jurisdiction
so long as a motion to vacate, alter, or amend the judgment was pending
in the district court. 459 U.S. at 59-60. This in turn created a trap for
the would-be appellant who failed to file a second notice of appeal after
the disposition of the post-trial motion. Accordingly, Rule 4 was modified
again in 1993 to provide that a notice of appeal filed after judgment but
before the disposition of a post-trial motion "becomes effective to
appeal a judgment or order * * * when the order disposing of the last such
remaining motion is entered." Fed. R. App. P. 4(a)(4)(B)(i).
31 Alternatively, if the filing of the Rule 59(e) motion tolled the time
to file the first notice of appeal under both Section 561(b) of the Telecommunications
Act of 1996 (110 Stat. 143) and 28 U.S.C. 1253, and if it is concluded that
the Rule 59 motion "actually seeks an 'alteration of the rights adjudicated'
in the court's first judgment," FCC v. League of Women Voters, 468
U.S. 364, 373 n.10 (1984) (quoting Department of Banking v. Pink, 317 U.S.
264, 266 (1942)), then the first notice of appeal may have been ineffective,
at least insofar as the government sought to challenge the injunction as
a final judgment. An ineffective notice of appeal would not divest the district
court of jurisdiction. In that event, it should be noted that the second
notice of appeal would remain sufficient to bring this case properly before