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No. 98-1682: United States v. Playboy Entertainment Group

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

REPLY BRIEF FOR THE APPELLANTS

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



REPLY BRIEF FOR THE APPELLANTS

In our opening brief, we explain that, although the district court's holdingcannot be sustained under any standard of review, appropriate review underthe First Amendment in this case should take into account this Court's precedentsrequiring special care before striking down an Act of Congress designedto protect children from sexually explicit material on television and radioand to protect the privacy of the home from the intrusion of sexually explicitprogramming. See FCC v. Pacifica Found., 438 U.S. 726, 748-749 (1978). ThisCourt has repeatedly-and recently-referred to the pervasiveness of thosemedia, their intrusiveness into the home, and their accessibility to childrenas the factors that justify regulation of indecency on television or radio.See Sable Communications, Inc. v. FCC, 492 U.S. 115, 127 (1989); Reno v.American Civil Liberties Union (ACLU), 521 U.S. 844, 866-868 (1997); seealso Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727,744-745, 748 (1996) (plurality opinion); id. at 776 (Souter, J., concurring)("the characteristics of broadcast radio that rendered indecency particularlythreatening in Pacifica, that is, its intrusion into the house and accessibilityto children, are also present in the case of cable television").
Indeed, as we explain in our opening brief (at 22-26), there are additionalfactors present here that make it particularly important that Congress havethe flexibility necessary to regulate graphic depictions of sexual activityon television, and that reinforce the constitutionality of Section 505.Those factors include that (a) Section 505 is aimed not at the intendedcommunication between appellee and its subscribers, but at a byproduct ofthat communication (signal bleed) that is harmful to children (see Gov'tBr. 22)1; (b) the burden on speech that results from Section 505 is at presentmodest and is decreasing over time as the advance to digital technologymakes elimination of signal bleed easy and cost-free (see Gov't Br. 23-25);(c) the risks to children-even very young children-posed by signal bleedof appellee's consistent and very graphic sexually explicit programmingare substantially greater than in Pacifica (see Gov't Br. 25-26; see alsopp. 5-6, infra); and (d) Section 505 leaves open ample means (such as time-channelingand the use of VCRs by viewers, or digital transmission for those operatorsso equipped) for transmission of appellee's speech and therefore at worstaddresses when-not whether-appellee's programming will be shown (see Gov'tBr. 22-25; see also Reno v. ACLU, 521 U.S. at 867 (noting that the "orderin Pacifica designate[d] when-rather than whether-it would be permissibleto air such a program in that particular medium")). In light of theextraordinarily high costs of unduly limiting society's ability to protectchildren in this context, Congress's reasonable predictive judgments aboutthe need for Section 505 and the inefficacy of alternative modes of protectionshould be accorded "substantial deference." Turner Broad. Sys.,Inc. v. FCC, 512 U.S. 622, 665 (1994) (plurality opinion); see Gov't Br.26-28. Section 505 therefore should be sustained by this Court.

A. The Appropriate Standard Of Review Does Not Turn On Whether TelevisionProgramming Is Transmitted Through A Wire Or Over The Airwaves
Appellee argues that a different standard of review, less protective ofchildren, applies to cable television than the one this Court has held applicableto broadcast television and radio. Appellee's arguments are illogical andinconsistent with this Court's precedents.

1. Appellee places its primary reliance on the assertion (Br. 16, 30-31,35, 43, 45) that there are technical differences between cable televisionand broadcast television that make it appropriate to apply different standardsof review to regulations of sexually explicit material on the two media.To all ordinary appearances, of course, the two means of transmitting televisionprogramming are indistinguishable; a child tuning in signal bleed on a televisionset would not likely know or care whether the programming had reached thehome via a wire or via the air waves. See Denver Area, 518 U.S. at 744-745(plurality opinion). Appellee argues, however, that there are technicalmeans available to protect children against signal bleed from sexually explicitprogramming on cable television that would not be effective on broadcasttelevision, and that the standard of review applicable to restrictions ofsexually explicit material should therefore vary with the means (cable orairwaves) by which the signal is transmitted.
Appellee presented evidence in support of its contentions regarding alternativetechnical means of control to the district court. But the government introducedcontrary evidence demonstrating that the alternative methods proposed byappellee are ineffective, difficult for parents to operate, and easy forchildren to circumvent. See Gov't Post-Trial Reply 15-18. The district courtdid not expressly resolve the resulting factual disputes, but the court'sreliance on an enhanced Section 504 as a less restrictive alternative-ratherthan on those other technological alternatives-suggests that the court foundthe government's evidence highly probative. In any event, this Court shouldnot resolve such factual disputes in the first instance.2

2. Appellee also appears to argue that Congress has less authority to protectminors from sexually explicit material on cable television than on broadcasttelevision, because some cable channels (such as the ones carrying appellee'sprogramming) broadcast an enormous amount of such material. According toappellee, whereas Pacifica "involved programming that represented 'adramatic departure from traditional program content,'" sexually explicitcontent "has always been available on this medium." Br. 23. Appelleedoes not dispute the district court's findings that appellee has chosen"to broadcast only indecent material" (Br. 25), but it justifiesthat choice on the ground that "cable television networks generallyare offered as niche services defined by subject matter" (Br. 26).
Appellee is correct that sexually explicit programming content is availableon cable television. The district court made specific findings about thematter, noting that appellee's channels carry "virtually 100% sexuallyexplicit adult programming." J.S. App. 6a, 42a, 47a.3 Indeed, it isthe availability of such material to nonsubscribers through signal bleedthat Congress was attempting to stem in enacting Section 505. But appelleeis incorrect to assume, counter-intuitively, that the more sexually explicitcontent a programmer chooses to provide, the less capability Congress hasto protect minors from that content. To the contrary, as we pointed outin our opening brief (Gov't Br. 25-26), the "unbroken continuum ofsexually explicit sounds and images, delivered without invitation to [children's]home[s]" on appellee's channels, J.S. App. 73a n.26, establishes thatthe threat to minors is more serious in this case than in Pacifica, whichinvolved a single broadcast of a satirical monologue. See also Gov't Br.5-7 & nn. 2-4 (describing content of appellee's programming).

B. Vagueness Principles Furnish No Basis For Invalidating Section 505 OrApplying A More Stringent Standard Of Review

1. As it did before the district court, appellee argues extensively (Br.26-30) that more stringent review should be applied to Section 505, becauseit is unconstitutionally vague and because, in any event, its asserted vagueness"precludes any attempt by [appellee] to minimize the censorial effectof time channeling." Br. 26. In response, the government argued inthe district court that appellee's claim should be rejected because Section505's application to the material that appellee in fact seeks to transmiton its networks is quite clear. See Young v. American Mini Theatres, Inc.,427 U.S. 50, 58-59 (1976). The three-judge district court noted those contentionsin an October 31, 1997, order, but it concluded at that time that certain"material questions of fact remain unresolved" that might havea bearing on the disposition of appellee's vagueness challenge. Mot. toAff. App. 24a. The court noted, for example, that appellee's standing tochallenge Section 505 on vagueness grounds would, in its view, require furtherinformation, including "Playboy's intentions, if any, to broadcast,outside the safe harbor hours, programming that is not sexually-orientedor that is materially different in sexual-explicitness to its current formatId. at 24a-25a. The court accordingly denied appellee's motion for partialsummary judgment on vagueness, without prejudice to later renewal of themotion. Id. at 26a-27a. Although appellee renewed its vagueness claim afterthe trial in this case, the district court did not address that claim. ThisCourt ought not resolve appellee's vagueness claim in the first instance,at least to the extent that resolution of that claim would turn on contestedfactual issues.

2. In any event, appellee's vagueness claim is wrong on its merits. Thestatute at issue in Denver Area relied on a formulation that, for practicalpurposes, is identical to the formulation in Section 505.4 The pluralityin Denver Area expressly held that the formulation was not "too vague,"518 U.S. at 750, and no Justice in Denver Area expressed any disagreementwith that conclusion. Indeed, because Justice Thomas, joined by the ChiefJustice and Justice Scalia, would have upheld the constitutionality of theentire statute in Denver Area, see id. at 812, they necessarily agreed withthe plurality that it was not unconstitutionally vague. Like the provisionsat issue in Denver Area, Section 505 is therefore "not impermissiblyvague." Id. at 753.5 See also Dial Info. Servs. Corp. v. Thornburgh,938 F.2d 1535, 1540-1541 (2d Cir. 1991) (rejecting vagueness challenge toidentical definition of "indecent," as used in dial-a-porn statute),cert. denied, 502 U.S. 1072 (1992); Information Providers' Coalition forDefense of the First Amendment v. FCC, 928 F.2d 866, 874-876 (9th Cir. 1991)(same); Action for Children's Television v. FCC, 852 F.2d 1332, 1338-1339(D.C. Cir. 1988) (broadcast regulation).

3. Without citing the discussion in Denver Area, appellee points out (Br.26) that the Court in Reno v. ACLU found that the internet indecency statutein that case, which also used "indecency" formulations, had "ambiguitiesconcerning the scope of its coverage that render it problematic for purposesof the First Amendment." 521 U.S. at 870. Even in that context, theCourt in Reno did not hold that the term "indecency" was vague,see id. at 870, but rather decided the case on overbreadth grounds, seeid. at 874. In any event, the Court in Reno did not overrule the holdingthat the "indecency" formulation in Denver Area was not unconstitutionallyvague, but instead specifically explained why that holding was inapplicablein Reno. See id. at 872. Because the formulation of the vagueness standardunder Section 505 and the context in which it is used are identical in relevantrespects to the statute at issue in Denver Area, the vagueness ruling inDenver Area is controlling here.
First, the ambiguities in the internet indecency statute in Reno arose inpart because that statute contained two different and competing formulationsof the statutory standard. See 521 U.S. at 870-871. Section 505, by contrast,uses a single formulation, which, as we note in our opening brief (at 8),has been carefully defined by the FCC. Indeed, the FCC's availability todefine the statutory terms where necessary and definitively work out theirmeanings in future cases is itself a factor distinguishing this case fromReno. See Dial Info. Servs., 938 F.2d at 1540-1541.
Second, in another passage not discussed by appellee, the Court in Renoexplained that the internet indecency statute was a criminal statute, andtherefore any potential vagueness "pose[d] greater First Amendmentconcerns than those implicated by the civil regulation reviewed in DenverArea." 521 U.S. at 872. Like the statute in Denver Area (and Pacifica)-andunlike the statute in Reno-Section 505 is a "civil regulation."
Finally, it is significant in this regard that Section 505 and the statutesat issue in Denver Area (and Pacifica) are directed at sophisticated commercialentities (like appellee) in the cable broadcasting and transmission businesses,whereas the internet indecency statute in Reno was "not limited tocommercial speech or commercial entities," but "embrace[d] allnonprofit entities and individuals posting indecent messages or displayingthem on their own computers," 521 U.S. at 877. Cf. Mot. to Aff. App.24a (district court below, in discussing vagueness, notes that "becausetelevision broadcasting is a highly public forum, there is no risk thatSection 505 would impose undue restrictions upon purely private speech").The vagueness holding in Denver Area is therefore controlling here.6

C. The District Court Erred In Holding That Its Enhanced Version Of Section504 Is A Less Restrictive Alternative To Section 505

The district court held Section 505 unconstitutional on the ground thatthe enhanced version of Section 504 the court posited, if enacted by Congress,would be a less restrictive alternative to Section 505. J.S. App. 34a-39a.We argue in our opening brief that the district court's analysis and conclusionare defective, regardless of the standard of review to be applied. The alternativethat the district court conceived -providing for notice to cable subscribersof the existence of signal bleed of sexually explicit programming and ofa feasible means to eliminate it-would not be an adequate alternative toSection 505 because it would not serve all of the compelling interests servedby Section 505 (see Gov't Br. 30-35), and it would not be less restrictivebecause it would lead to (at least) the same burdens on appellee's speech(see Gov't Br. 35-40).
We do not contend, as appellee suggests (Br. 40), "that a regulatoryalternative must have been previously enacted and litigated in order toqualify as a less restrictive means." We do contend, however, thata court has an obligation to exercise considerable care before holding anyAct of Congress unconstitutional, and the need for such care is especiallyimportant in a case like this. What is at stake here is society's interestin protecting children and in the sanctity and privacy of the home. An errorin holding that a hypothetical and untried scheme is a less restrictivealternative can result in leaving children unprotected from materials oursociety has found to be inappropriate for them and leaving individuals unableto protect the privacy of their homes from the intrusion of such materials.Especially when a proposed alternative (like the district court's enhancedSection 504) has never been used in fact and has never been subjected tothe crucible of litigation, a court should exercise special caution beforeconcluding that the ability to conceive of the alternative is sufficientto render an Act of Congress unconstitutional.
The district court exercised no such caution. It decided that the enhancedSection 504 would be a less restrictive alternative without affording theparties an opportunity to address the inadequacies of its suggested schemeand the speech-restrictive effects that scheme would have on appellee'sprogramming. See Gov't Br. 28-29.7 As a result, the court adopted, as aless restrictive alternative, an ill-defined enhanced Section 504 schemethat its own findings demonstrate would be inefficacious and speech-restrictiveto at least the same degree as Section 505.

1. The Enhanced Section 504 Scheme Would Not Be An Efficacious AlternativeTo Section 505

As we explain in our opening brief (at 30-35), the district court's enhancedSection 504 would not be an efficacious alternative to Section 505 becauseit would not serve one of the key interests underlying Section 505-society'sinterest in seeing to it that children are not exposed to sexually explicitmaterials. That interest would of course be served in instances (which byappellee's account will be rare, see Br. 46 & n.64) in which parentsrequest blocking under an enhanced Section 504. But in cases in which parentsfail to make use of an enhanced Section 504 procedure out of distraction,inertia, or indifference, Section 505 would be the only means to protectsociety's independent interest.8 Appellee's contention (Br. 43) that noticeunder an enhanced Section 504 would be so effective (despite the cable operator'sbuilt-in financial incentive to minimize notice and thereby minimize thecosts of providing blocking) that such cases of parental distraction, inertia,or indifference will be rare is extraordinarily unlikely, and it runs directlycontrary to common-sense-and scientifically based studies (see Gov't Br.33 n.23)-about human behavior. Indeed, if appellee's prediction elsewhere(Br. 46) that very few households would request blocking under an enhancedSection 504 is correct, the only plausible explanation would be that mostparents had failed to do so out of distraction, inertia, or indifference.The only other alternative-that most parents, genuinely informed that theirchildren could be exposed to sexually explicit programming via signal bleed,would prefer such exposure be available-is not plausible.
Appellee does not directly deny that there is a compelling societal interestin the upbringing and protection of children that is independent of theactions of particular parents. Appellee does assert (Br. 41), however, thatthis Court implicitly rejected the validity or substantiality of such aninterest in Denver Area when it held Section 10(b) of the Cable TelevisionAct of 1992 unconstitutional. Appellee's view is impossible to square withthe consistent declarations of this Court-and of each Justice in the DenverArea case-that society does have such an interest and that it is compelling.See Gov't Br. 31 & n.22 (giving citations). In addition, as we notebelow (see p. 16, infra), one reason why the Court reached the conclusionit did in Denver Area was that it posited that one of the alternatives thatwould remain after Section 10(b) was struck down was Section 505. See 518U.S. at 756. The Court's rejection of Section 10(b) was thus based in parton the assumption that Section 505 would continue to be available to protectsociety's independent interest in protecting children. Denver Area in noway suggests that that interest-and Congress's ability to legislate in supportof that interest-could be disregarded.

2. The Enhanced Section 504 Would Not Be Less Restrictive Of Speech ThanSection 505

We also explain in our opening brief (at 35-40) that the district court'senhanced Section 504 would not be less restrictive than Section 505, because,based on the district court's own findings, it would lead to the same (ormore severe) limitations on the availability of appellee's programming.We need not repeat that explanation here, because appellee responds to itonly by attacking the facts as found by the district court, contending that"the government and the court below vastly overstated the cost of compliance"with an enhanced Section 504. Appellee Br. 46 (emphasis added). Appelleehas entirely failed-indeed, has barely attempted-to carry its heavy burdenof showing that the district court's factual determinations were clearlyerroneous. This Court therefore should not further consider appellee's contentionson this point.9
Appellee also refers (Br. 39) to the district court's conclusion that Section504 is not content-based, see J.S. App. 35a, and argues that Section 504is therefore a less restrictive alternative to Section 505. Of course, thedistrict court repeatedly explained that Section 504, without a requirementof enhanced notice and easy availability of blocking, would not be effectiveat all to solve the problem of signal bleed. See J.S. App. 20a ("If* * * § 504 is to be an effective alternative to § 505, adequatenotice of the availability of the no-cost blocking devices is critical.");accord id. at 19a, 38a. Once the requirements of enhanced notice of signalbleed and easy availability of blocking are added to Section 504, however,it is no longer content-neutral, for those requirements presumably wouldapply only to sexually explicit programming services like appellee's. Moreover,if those requirements were added to Section 504, appellee would no doubtargue (as it has with respect to Section 505) that they impose an impermissibleeconomic burden on its speech and have other First Amendment defects aswell.

D. Appellee's Other Arguments Should Be Rejected

Appellee advances a number of additional arguments- distinct from thoserelied upon by the district court-in support of its contention that Section505 is unconstitutional. None of them are persuasive.

1. Appellee argues (Br. 20-21) that the First Amendment analysis here isgoverned not by Pacifica, but by Erznoznik v. City of Jacksonville, 422U.S. 205 (1976), in which the Court held unconstitutional an ordinance forbiddingdrive-in theaters from showing movies containing nudity visible from a publicstreet. As we explain in our opening brief (at 23 n.14), the Court in Erznoznikquite explicitly relied on the fact that the ordinance in that case "isnot directed against sexually explicit nudity, nor is it otherwise limited,"422 U.S. at 213-unlike Section 505, which is directed only at sexually explicitprogramming. The fact that "a contemporaneous reference to Erznoznik"written by a "legal expert" (Appellee's Br. 21 n.22) describedthe ordinance (in contradiction of this Court's opinion) as directed onlytoward sexually explicit materials is obviously of no significance in construingthis Court's holding. Nor does appellee offer any explanation of the othersignificant difference between this case and Erznoznik that reinforces theauthority of Congress to enact Section 505: Section 505, unlike the drive-inmovie regulation in Erznoznik, is directed at sexually explicit programmingthat intrudes, uninvited, into the privacy of the home.

2. Appellee argues (Br. 33-34) that this case is controlled by the Court'sholding in Denver Area that Section 10(b) is unconstitutional. Section 10(b)provided that those who transmit indecent material on leased-access cablechannels must segregate such material on a separate channel and block thatchannel unless a subscriber specifically requests access to it in writing,a procedure that could result in a waiting period of up to 30 days to beginreceiving service. The Court's holding regarding Section 10(b) is inappositehere, for four reasons.
First, the basis for the Court's holding regarding Section 10(b) was thatalternative means were available to protect minors from indecency. See DenverArea, 518 U.S. at 756-759. Prominently featured among those alternativemeans 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 therefore could not establish, as appellee argues, that Section 505 violatesthe First Amendment.
Second, Section 10(b)-unlike Section 505-did not allow for any "safeharbor" for transmitting indecent material at night. Accordingly, Section10(b) imposed a far more stringent, and unnecessarily broad, restrictionon speech than does Section 505.
Third, Section 10(b) in essence required that certain channels previouslyavailable to all viewers would thenceforth be available only by subscription.It thus directly interfered with the desired communication between cableoperators and programmers, on the one hand, and their viewers, on the other.By contrast, Section 505 addresses the problem of signal bleed, which arisesonly with respect to channels that are already available only by subscription.And Section 505 permits the communication between appellee and its subscribersto continue without interference, so long as appellee does not thereby posea threat to third parties (children viewing and listening to signal bleed,or adults seeking to preserve the privacy of their homes) with whom appelleehas never asserted a First Amendment interest in communicating. See J.S.App. 42a ("[Appellee] do[es] not contend that signal bleed itself isprotected speech.").
Finally, Section 10(b), unlike Section 505, required that subscribers mustapply in writing to receive indecent programming on access channels andincluded several delays of up to 30 days that would further burden subscribersand programmers. The Court in Denver Area noted that those requirementswould have "obvious restrictive effects," because they would putthe indecent access programming out of the reach of occasional or casualviewers, and because the written notice requirement "will further restrictviewing by subscribers who fear for their reputations should the operator,advertently or inadvertently, disclose the list of those who wish to watchthe 'patently offensive' channel." 518 U.S. at 754. See also id. at807 (Kennedy, J., concurring) (noting "constitutional infirmity ofrequiring persons to place themselves on a list to receive programming").Section 505 imposes none of those burdens, and consequently is far lessrestrictive than Section 10(b) in this respect as well.
The plurality in Denver Area emphasized that its decision was highly context-specific.Because Section 505 differs so substantially from Section 10(b), the Court'sspecific holding in Denver Area that Section 10(b) is unconstitutional isnot controlling here.

3. Appellee contends repeatedly that Section 505 is unconstitutional because"the government failed to demonstrate that signal bleed is a 'pervasiveproblem.'" Br. 31; see id. at 16, 30- 31, 35, 43, 45. Appellee's premiseis mistaken. Congress's power to protect children from sexually explicitmaterial on television is not limited to instances in which such materialpresents a "pervasive problem." In Pacifica, the Court held thatthe FCC could "proscribe this particular broadcast," 438 U.S.at 742, without requiring any showing that similar broadcasts pervaded themedium. Nor could such a showing have been made in that case. See Reno,521 U.S. at 867 (program in Pacifica was "a dramatic departure fromtraditional program content"). Although it is no doubt true that Congressmay not act to protect children from sexually explicit programming witha measure like Section 505 unless there is a real problem being addressed,Congress need not wait until that problem pervades the entire medium beforeacting.
In any event, the problem of signal bleed is widespread. The district courtfound that most cable operators use a technology that leaves the audio portionof appellee's sexually explicit programming entirely audible. J.S. App.7a-8a. Appellee cannot-and does not-deny that the audio portions of itsprogramming are as sexually explicit as the video. In fact, in additionto the "assorted orgiastic moans and groans" to which the districtcourt referred (and which are a staple of appellee's programming, id. at52a-53a), the sound tracks of many of its programs not only make frequentuse of the "seven dirty words" from Pacifica, but do so in thevery coarse context of graphic depictions of individuals engaged in sexualintercourse and other explicit sexual acts, rather than in the relativelysanitized context of the satire/ social commentary before the Court in Pacifica.10Accordingly, the district court's finding that audio signal bleed is prevalentis sufficient to show that the problem Congress was addressing is very widespread.
With respect to the video portion of appellee's programming, too, the districtcourt's findings establish that Congress was addressing a widespread problem.The record contains substantial anecdotal evidence of signal bleed in awide variety of circumstances. See Gov't Br. 6-7.11 Nothing in the technologyof cable television suggests that the magnitude of the problem is limitedto the particular instances the evidence identified. In addition, the districtcourt found that "the vast majority (in one survey, 69%) of cable operatorshave, in response to § 505, moved to time channeling." J.S. App.16a-17a. That fact too makes clear that the cable industry itself believesthat signal bleed occurs with some frequency. Otherwise, those systems wouldnot have chosen to undergo the loss of revenue that results from limitingsexually explicit channels to the safe-harbor hours.12
Indeed, an examination of the operation of Section 505 reveals that it imposesa burden on speech that is well tailored to the scope of the problem ofsignal bleed on a given system. If signal bleed does not occur on a system,then Section 505 imposes no restriction on speech on that system at all.If signal bleed occurs sporadically, due to defects in "the qualityof the [cable operator's] equipment, its installation, and maintenance,"J.S. App. 9a, Section 505 requires only that the cable operator correctthe defects. But if signal bleed occurs with regularity, as the evidencesuggests it does, then a cable operator may decide that the only effectivesolution is time-channeling. Regardless of how often signal bleed occurson a given system, therefore, the burden imposed under Section 505 is closelycommensurate with the scope of the problem.13

* * * * *

For the foregoing reasons and those stated in our opening brief, the decisionof the district court should be reversed.

Respectfully submitted.

SETH P. WAXMAN
Solicitor General


NOVEMBER 1999

1 Appellee asserts (Br. 19-20) that this Court "has rejected similarefforts to mischaracterize direct restrictions on speech as regulationsof 'secondary effects.'" But what this Court has held is that "[r]egulationsthat focus on the direct impact of speech on its audience * * * are notthe type of 'secondary effects'" that subject the restrictions to morerelaxed scrutiny. Boos v. Barry, 485 U.S. 312, 321 (1988); see also Renov. ACLU, 521 U.S. at 868. Section 505 does not "focus on the directimpact of speech on its audience," because it is not directed at theonly communication for which appellee has ever claimed First Amendment protection-thatbetween appellee and its subscribers. Instead, it is directed at a byproductof that speech-the impact of signal bleed in homes that do not subscribeto appellee's services, do not want appellee's programming, and have nolegal interest in obtaining it.

2 An example of the problem presented by appellee's effort to have thisCourt resolve disputed factual issues is appellee's attempt (Br. 42 n.59)to rely on the V-chip as an alternative to Section 505, notwithstandingits concession in its motion to affirm (at 4-5) that the V-chip mechanismwas not designed to address signal bleed. Appellee now relies on new V-chipregulations promulgated by the FCC after trial. See In re Technical Requirementsto Enable Blocking of Video Programming Based on Program Ratings, Implementationof Sections 551(c), (d), and (e) of the Telecomms. Act of 1996, 13 F.C.C.R.11,248, para. 11 (1998) (Implementation of Section 551); 47 C.F.R. 15.120(e)(2).Appellee's theory is that V-chips will now be able to block unrated programming,and in doing so they will therefore block signal bleed from appellee's programming.
There are several problems with appellee's contention. First, the FCC didnot discuss or mention signal bleed in its order, and it has never foundthat V-chips equipped with the ability to block unrated programming willin fact interpret signal bleed as unrated programming. Thus, it is not clearthat the capacity to block unrated programs would do anything to block signalbleed. Second, the FCC regulations do not require V-chips to have the capabilityto block unrated programming; the FCC merely stated that "it is permissibleto include features [in the V-chip] that allow the user to reprogram thereceiver to block programs that are not rated." 47 C.F.R. 15.120(e)(2)(emphasis added). Third, the regulations provide that "[t]he defaultstate of a [television] receiver (i.e., as provided to the consumer) shouldnot block unrated programs." Ibid. (emphasis added). Thus, a parentwho wants to block unrated programming must not only learn about the problemof signal bleed and the (hypothetical) ability of the V-chip to block it,but the parent must also learn how to "reprogram" the televisionto engage this feature. Ibid. Fourth, the FCC noted that the televisionrating system "will apply to all television programming except fornews, sports, and [movies that incorporate the customary movie rating system]."Implementation of Section 551, para. 11 (emphasis added). Thus, a parentwho purchases a television set that has the ability to block unrated programmingand surmounts all of the other obstacles above will find out that enablingthe ability of the V-chip to block unrated program will likely block allnews and sports programming as well. Finally, because V-chips are only nowbeing required to be included on new television sets with screen sizes largerthan 13 inches, see 47 C.F.R. 15.120(b), and because existing televisionsets without V-chips will likely be in use for many years to come, the V-chipsystem could provide at best only a very long-term and partial solutionto the problem of signal bleed.

3 Appellee's complaints (e.g., Br. 25, 29) that Section 505 would eliminateits broadcasting during two-thirds of the broadcast day on cable systemsthat are not digitally equipped also demonstrates the extent to which appelleeis committed to broadcasting solely sexually explicit adult programming.

4 Compare In re Implementation of Section 505 of the TelecommunicationsAct of 1996, 11 F.C.C.R. 5386, paras. 6, 9 (1996) (defining "indecent,"as used in Section 505, as "any programming that describes or depictssexual or excretory activities or organs in a patently offensive manneras measured by contemporary community standards for the cable * * * medium")with Denver Area, 518 U.S. at 736 (defining "sexually explicit"material, as used in the statute in that case, as "descriptions ordepictions of 'sexual or excretory activities or organs in a patently offensivemanner' as measured by the cable viewing community").

5 Appellee argues (Br. 28-29) that a number of its actual or proposed programsare not indecent. To the extent the precise nature of individual programsis relevant to this Court's consideration of the case, we urge the Courtto review the programs at issue and the discussion of them in our Post-TrialBrief (at 67-68). One program, for example, DX 36, includes a profile ofa pornography star, with scenes of lesbian, oral, and group sex and a segmenton a dial-a-porn company, including four of the seven "filthy words"at issue in Pacifica. Another, DX 40, includes the same dial-a-porn segment,along with scenes of sexual intercourse. Another submission, "VideoPlaymate Calendar," DX 39, is a series of twelve videos in which nakedfemale models strut and move provocatively, or squirm on silken-sheetedbeds, while caressing their breasts and genitals in implied self-arousal.And another program that purports to promote "safe sex" includesscenes in which a woman uses a zucchini to demonstrate how to put a condomon a man's penis with her tongue and in which, after a woman puts a condomon a man's erect penis, the couple engage in a series of sex acts.

With respect to another of its programs, appellee errs in stating (Br. 28n.36) that "the First Circuit [in Brown v. Hot, Sexy & Safer Prods.,Inc., 68 F.3d 525, 532 (1995), cert. denied, 516 U.S. 1159 (1996),] heldthat Playboy's program Hot, Sexy and Safer was appropriate for a mandatorymiddle school assembly." The First Circuit certainly did not hold thatthe program was "appropriate" for the ninth and tenth grade highschool, see 68 F.3d at 541-not, as appellee states, "middle school"-studentsto whom it was shown. Instead, the First Circuit reached the quite differentconclusion that plaintiffs had failed to demonstrate that the school officialshad violated the Constitution or committed sexual harassment by showingthe program to ninth and tenth graders. Of course, even if the First Circuithad believed that the program was "appropriate" for high schoolstudents, that would not establish that it is "appropriate" forthe much younger children who have access to television sets and who couldlisten to it and view its signal bleed on appellee's networks.

6 Appellee is correct (Br. 14 n.13) that a "willful" violationof the Communications Act is potentially punishable with a criminal penaltyunder 47 U.S.C. 501. But that did not convert the entire CommunicationsAct into a criminal statute in Denver Area or Pacifica, and it does notdo so here. Appellee is unable to point to a single criminal prosecutionunder that provision for violation of an indecency standard, and we areaware of none.

7 Appellee argues (Br. 45) that the question of the efficacy of an enhancedSection 504 was addressed during closing arguments. What was addressed byappellee's counsel (at closing argument, when it was too late to put onadditional evidence) was the extent to which cable operators currently providenotice of the availability of blocking. See Closing Argument Tr. 47-51.Aside from that, there were only three stray, and similarly vague, referencesby appellee's counsel to notice. See id. at 48-49 ("it certainly wouldbe within the realm of possibility to require more frequent notice or perhapseven more prominent notice of the ability to use those lockout features");id. at 49 (similar), 130 (similar). We are unable to find any referenceto enhanced notice requirements in government counsel's remarks at ClosingArgument Tr. 104-110, which is also cited by appellee. In any event, theentire scheme conceived by the district court for enhanced notice and easyavailability of blocking devices was not advocated by either party at trial,and it was not mentioned by the court at trial.

8 Appellee curiously criticizes Section 505 (Br. 44) as being ineffectivebecause it permits transmission of sexually explicit programming duringthe safe-harbor hours. Since Pacifica, this Court has accepted that time-channelingto the late-night hours is an effective (albeit not perfectly effective)means to protect children from sexually explicit material on televisionand radio. Congress's decision to permit the safe harbor, moreover, demonstratesthat Congress was not attempting to censor or suppress appellee's speech,but merely to protect children from its harmful effects. Appellee wouldsurely not have been more satisfied with Section 505 had it contained nosafe-harbor provision.

9 The district court found that cable operators would cease to earn a profitby carrying appellee's networks if 3%-6% of subscribers requested individualblocking of those networks. J.S. App. 22a. The district court also notedthat cable operators would cease carrying appellee's networks long beforethey reached that no-profit point, since they would do so "if costsrose to such a point that the profit from adult channels was less than theprofit from channels unlikely to require blocking." Ibid. See Gov'tBr. 36-37. Thus, even appellee's initial calculation, based on the 6% figure(Br. 46 & n.64), far overstates the number of households whose requestsfor blocking under an enhanced Section 504 would be necessary to cause cableoperators to time-channel (or cease carrying) appellee's programming. Withrespect to appellee's further contentions that the costs of providing blockingare very low, the district court rejected as "unavailing" andcontrary to the expert testimony the very contentions advanced by appelleehere (Br. 46-47)-that blocking devices "can be mailed to subscribersthereby obviating the need for installation labor costs and lowering thecost per mechanism to the cost of the product plus postage." J.S. App.22a n.21. Our demonstration that an enhanced Section 504 would be (at least)as speech-restrictive as Section 505 rested on the district court's factualfindings; appellee's argument to the contrary is based entirely on a rejectionof those findings.

10 As a sample of the audio signal bleed that the district court found tocommonly occur, we urge the Court to review the tapes that we have lodgedwith this court or any of the other tapes of appellee's programming thatare a part of the record in this case. We have been informed that thosetapes have been received by the Clerk of this Court, together with the otherrecord materials.

11 See also 141 Cong. Rec. 15,587 (1995) (Sen. Feinstein) (noting that "partiallyscrambled video pornography-replete with unscrambled and sexually explicitaudio-was being automatically transmitted to more than 320,000 cable televisionsubscribers" in San Diego, California, and the signal was transmitted"only one channel away from a network broadcasting cartoons and waseasily accessible for children to view"); see also DX 1 (videotapelodged with Clerk of this Court). As the district court explained, the government'sevidence showed that there was the potential for signal bleed in 39 millionhomes with more than 29 million children. J.S. App. 10a.

12 We disagree with appellee's contention that the district court foundthat the government had failed to prove the pervasiveness of signal bleed.Appellee refers (Br. 16, 31, 35) to the district court's statement that"the Government has not convinced us that [signal bleed] is a pervasiveproblem." J.S. App. 36a. The very next sentence in the court's opinion,however, is that "[p]arents may have little concern that the adultchannels be blocked." Id. at 36a. Read together, the two sentencesindicate only that the court believed that the government had not convincedthe court that parents (who are likely not to know of the problem) generallyperceived that there is a substantial threat that their children would beexposed to signal bleed or that they should take affirmative steps to blockit; the district court was not contradicting its earlier findings, discussedin text, that audio signal bleed is common and video signal bleed is anever-present danger on the majority of cable systems in operation today.

13 On the jurisdictional issue, appellee raises only one new point thatwe have not already answered in our opening brief (at 41-44). Appellee asserts(Br. 49) that an order granting appellants' Federal Rule of Civil Procedure59(e) motion, which sought to confine the judgment to appellee Playboy (theonly plaintiff remaining in the case), "would have essentially nullifiedPlayboy's facial challenge to Section 505." That is incorrect. Thelegal basis for a particular plaintiff's challenge to a regulation or statute(e.g., on-its-face as distinguished from as-applied) is distinct from therelief to which the plaintiff is entitled if that challenge is successful.Absent a special statutory review provision allowing a single party to obtaina judgment setting aside a regulation or restraining enforcement of a statutein its entirety (see, e.g., AT&T Corp. v. Iowa Utils. Bd., 119 S. Ct.721, 728-729 (1999); Chevron U.S.A. Inc. v. Natural Resources Defense Council,Inc., 467 U.S. 837, 842 (1984)), a plaintiff is entitled only to a judgmentthat declares the challenged provision unlawful or enjoins its enforcementor application as to that plaintiff. See, e.g., United States Dep't of Defensev. Meinhold, 510 U.S. 939 (1993); Lujan v. National Wildlife Fed'n, 497U.S. 871, 891, 894 (1990). In that event, the collateral estoppel effectof the judgment is limited to the particular plaintiff before the court.See United States v. Mendoza, 464 U.S. 154 (1984). Of course, once thisCourt renders a decision concerning the validity of a regulation or statute,even in a case brought by a single party, the precedential effect of thisCourt's decision will bind the lower courts in cases brought by other plaintiffs,quite aside from principles of collateral estoppel.