MAIN	cases	docket	decisions	orders	briefs	rules	guides	calendar
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

BRIEF IN OPPOSITION TO MOTION TO AFFIRM

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
CHRISTOPHER J. WRIGHT
General Counsel
Federal Communications
Commission
Washington, D.C. 20544





In the Supreme Court of the United States

No. 98-1682
UNITED STATES OF AMERICA, ET AL., APPELLANTS

v.

PLAYBOY ENTERTAINMENT GROUP, INC.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

BRIEF IN OPPOSITION TO MOTION TO AFFIRM

1. Appellee argues (Mot. to Aff. 11-14) that the district court correctlyapplied strict scrutiny in this case, notwithstanding that the Court inDenver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727 (1996),expressly stated that it need not decide whether strict scrutiny appliesto regulation of indecency on cable television. See id. at 755. Althoughseparate opinions by Justices Kennedy, see id. at 803-804, and Thomas, seeid. at 832, in Denver Area did apply strict scrutiny to the provisions inthat case, each of those opinions reached conclusions that differ from oneanother and from the principal opinion. Accordingly, the fractured opinionsin Denver Area cannot be said to have definitively resolved the questionof the standard of review applicable to indecency on cable television. SeeJ.S. 14-15.
Moreover, regardless of the level of scrutiny applied, this Court's decisionin Pacifica at least made clear that certain unique features of the broadcastmedia-their "uniquely pervasive presence," the fact that they"confront[] the citizen * * * in the privacy of the home," theinefficacy of "prior warnings" to "protect the listener orviewer from unexpected program content," and their "unique[] accessib[ility]to children," 438 U.S. at 748-749-significantly affect the analysisof restrictions on indecency in broadcasting. The plurality in Denver Areaacknowledged the effect of those factors in the First Amendment analysisof indecency on cable television, see 518 U.S. at 744-748, and Justice Kennedy'sopinion also acknowledged that those "concerns are weighty and willbe relevant to whether the law passes strict scrutiny." Id. at 804.Nonetheless, as we explain in the jurisdictional statement (at 15-17), thedistrict court's opinion in this case gave no weight to those concerns.Plenary review is thus warranted to correct the district court's departurefrom the analysis employed by this Court in Pacifica.
Appellee argues (Mot. to Aff. 13) that "the very outcome in Denverreveals the fundamental flaw in the government's reasoning," becausethe plurality in Denver Area "approved cable operators' ability totransmit (or not) totally unscrambled indecent programming on leased orpublic access channels at any time of the day or night." The basisfor that holding, however, was that means other than the mandatory segregationand blocking provision at issue in that case were available to protect minorsfrom indecency. See 518 U.S. at 756-759. Prominently featured among thosealternative means was Section 505. See id. at 756. The Court's holding inDenver Area, therefore, rested on at least the possibility that Section505 is constitutional; it could not establish, as appellee urges, that Section505 violates the First Amendment.
2. Appellee argues (Mot. to Aff. 17) that, "[w]hether or not some ofPacifica's reasoning may apply to cable television as suggested by the Denverplurality, the time channeling requirement of Section 505 is far more restrictiveof speech when applied to cable television networks than it is in the broadcastingcontext."1 Appellee bases that assertion on the fact that "[w]ithrespect to broadcasters, the safe harbor rules may require a station toreschedule a particular program to late night hours," while "thecourt below found that the * * * networks [affected by Section 505] had'no practical choice' but to go dark for 16 hours per day." Ibid.
Initially, Section 505 would not result in the banning of appellee's networks16 hours a day on all cable systems. As the district court made clear, anincreasing number of cable operators use digital technology that easilyeliminates signal bleed. See J.S. App. 6a-7a, 9a. Those operators may broadcastappellee's cable networks at whatever time of day or night they wish withno threat of signal bleed, and Section 505 is therefore not at all restrictiveof speech with respect to their subscribers. See J.S. 17 n.5.
In any event, appellee's claim that Section 505 is more restrictive of speechbecause it would impose a greater decrease in programming than did the FCCrule at issue in Pacifica is without merit. The FCC rule upheld in Pacificarequired time-channeling only of indecent material. If a radio station emulatedappellee by broadcasting "virtually 100% sexually explicit adult programming,"J.S. App. 6a, the FCC's rule would require it to limit its broadcasts tothe 10 p.m.-to-6 a.m. safe harbor. In the same way, Section 505 requirestime-channeling or blocking only of indecent material; cable operators maybroadcast other material that appellee might choose to make available onits network at any time of the day or night, without scrambling. See Orderand Notice of Proposed Rulemaking, In re Implementation of Section 505 ofthe Telecommunications Act of 1996, 11 F.C.C.R. 5386, 5387, at ¶ 6(1996). The fact that (for cable operators that do not already employ digitalor other complete scrambling technology) time-channeling would limit appellee'sprogramming for "16 hours per day" is the result of appellee'schoice to broadcast only indecent material. That choice suggests that appellee'sprogramming poses a particular threat to children; it does not suggest thatSection 505 is "more restrictive of speech" than the rule at issuein Pacifica.2
3. Appellee argues (Mot. to Aff. 19) that Section 505 is unconstitutionalbecause the government "did not show that the recited concerns arereal, not conjectural." The district court, however, did not hold Section505 unconstitutional because it does not address a real problem. To thecontrary, the court ultimately found that "there is sufficient riskof harm to susceptible minors to warrant protection from sexually explicitsignal bleed." J.S. App. 30a. The sole basis for the district court'sholding that Section 505 is unconstitutional was that, in the court's view,a less restrictive alternative is possible. The district court's findingthat signal bleed is a real problem is well supported by the record,3 andappellee's disagreement with the district court's conclusion on that pointcould not provide a basis for summary affirmance.
Appellee notes that the district court stated that "the Governmenthas not convinced us that [signal bleed] is a pervasive problem." Mot.to Aff. 20 (quoting J.S. App. 36a). The very next sentence in the court'sopinion, however, is that "[p]arents may have little concern that theadult channels be blocked." J.S. App. 36a. Read together, the two sentencesmake clear that the court believed that the government had not shown thatparents (who are likely not to know of the problem) generally perceivedthat there is a substantial threat that their children would be exposedto signal bleed or that they should take affirmative steps to block it;the district court was not contradicting its earlier findings that audiosignal bleed is common and video signal bleed is an ever-present dangeron the majority of cable systems in operation today. Proof that the broadcastof indecent material occurred during a time of day when children were likelyto be in the audience was sufficient in Pacifica to justify the FCC's time-channelingrule. Appellee's argument that the government had to establish not the numberof children potentially exposed to signal bleed from sexually explicit channels,but the number who actually listen to or watch such material, is inconsistentwith Pacifica.
4. Appellee argues (Mot. to Aff. 22) that the government did not "demonstratethat imposing the 'safe harbor' under Section 505 'will in fact alleviate[the] harms [of signal bleed] in a direct and material way.'" In appellee'sview, such proof is required by this Court's decision in Turner Broad. Sys.,Inc. v. FCC, 512 U.S. 622 (1994).
Initially, appellee's contention rests on the mistaken premise that federalregulation to protect children from indecency is permissible only on thesame kind of empirical showing of harm as federal regulation of the speechof cable operators in Turner to promote the entirely different purpose ofprotecting a particular competitive structure in the broadcasting industry.But it has long been settled that there is a "'compelling interestin protecting * * * minors' which extend[s] to shielding them from indecentmessages." Reno v. ACLU, 521 U.S. 844, 869 (1997). See J.S. 20 n.7.That interest is supported by deeply felt beliefs in our society about howchildren should be raised, as well as by the empirical, scientific evidencethat led the district court to conclude that the risk to minors is real.See J.S. App. 30a.
Moreover, appellee apparently would demand direct, empirical evidence thatchildren suffer harm from hearing the audio portions of appellee's sexuallyexplicit programming in their entirety and viewing the partly (and at timescompletely) visible video portion. Children, however, are not experimentalsubjects whose environment can be manipulated with no regard for moral andsocial consequences. As the district court noted, acquiring evidence ofthe sort appellee demands would raise the "clear ethical questionssurrounding clinical research of the effects of children viewing sexuallyexplicit programming." J.S. App. 29a.
5. Contrary to appellee's suggestion (Mot. to Aff. 23-26), we do not arguethat the district court erred in considering, as part of the constitutionalanalysis, the possibility that other forms of regulation would be less speech-restrictive,even if those other forms of regulation have not been enacted into law.But even when strict scrutiny is applied, a party claiming that a particularregulation violates the First Amendment must do something more than dreamup a theoretically possible alternative regulatory scheme; the alternativescheme must realistically promise to advance the legitimate purposes underlyingthe regulation, and it must be genuinely less restrictive of speech. Thealternative on which the district court relied would do neither. See J.S.17-25.
First, the district court's hypothetical Section 504, enhanced by complexrequirements to ensure notice and easy and inexpensive access to lockboxesby parents who want them, would not be an alternative to Section 505, becauseit would not serve one of the purposes animating Section 505-society's interestin "protect[ing] children from exposure to patently offensive sex-relatedmaterial." J.S. App. 26a. Appellee asserts (Mot. to Aff. 28) that theCourt "addressed the identical question" in Denver Area.
Denver Area in fact suggests the inadequacy of appellee's argument. TheCourt noted that, among the remedies to the problem of "children withinattentive parents" is to take measures that may "impos[e] costburdens upon system operators (who may spread them through subscriptionfees)," and, of particular significance, to "require[] lockboxdefaults to be set to block certain channels (say, sex-dedicated channels)."518 U.S. at 758-759. Although lockboxes (i.e., set-top converters with channellockout features, see J.S. App. 58a) offer no safeguard to children in householdswith cable-ready televisions that are not connected to set-top converters,see ibid., the lockbox approach mentioned in Denver Area does operate likeSection 505-rather than Section 504-in one important respect. Like Section505, such a lockbox approach does not depend on parental awareness and initiativeto offer children at least some level of protection. By contrast, even theenhanced-notice version of Section 504 relied upon by the district courtwould have precisely the reverse effect; children would be exposed to sexuallyexplicit material unless the parent took affirmative steps to avoid suchexposure. None of the opinions in Denver Area stated that such an alternativewould adequately protect children.
In any event, appellee does not dispute that the district court's conclusionthat an enhanced-notice version of Section 504 would be an adequate alternativeto Section 505 overlooked the independent societal interest in protectingchildren from sexually explicit materials. None of the opinions in DenverArea discussed whether that interest is sufficient to justify the kind ofmodest restriction on speech that Section 505 imposes.4 Plenary review iswarranted so that this Court may give full consideration to a key rationaleunderlying Congress's action.
Second, the district court's hypothetical, enhanced Section 504 would likelyresult in at least as great a restriction of appellee's programming as resultsfrom Section 505. The district court itself found that Section 504, withoutthe district court's enhanced-notice provisions and in part without theprovision for free access to blocking devices, see J.S. App. 20a & n.19,had led to approximately one-half of 1% of households requesting blocking.The enhanced-notice and other provisions the district court envisioned wouldsurely result in at least a modest increase in the number of householdsrequesting blocking devices. Even a modest increase would, according tothe district court's findings, create at least the same incentives for cableoperators to time-channel (or completely drop) appellee's network that Section505 creates. The net result would be a regime in which the restrictionson speech are at least as great as under Section 505.
The district court noted the testimony that the cost of distributing lockboxesto 3% of a cable system's customers would equal all of the revenue the operatorderived from its sexually explicit channels. J.S. App. 21a-22a. The courtadded that, if a cable operator were willing to amortize the cost of thelockboxes over five years, the number of lockboxes that could be distributedwould rise to 6% of the subscriber base. Id. at 22a. In actuality, cableoperators could be expected to drop (or time-channel) sexually explicitchannels long before the number of subscribers who requested lockboxes reachedthe 3-6% range. As the district court found, "[e]conomic theory wouldsuggest that profit-maximizing cable operators would cease carriage of adultchannels" before exhausting all revenues from such channels; rather,they would take action when the "costs rose to such a point that theprofit from adult channels was less than the profit from channels unlikelyto require blocking." Ibid. Therefore, a relatively minor boost inthe number of subscribers seeking lockboxes-a boost that would be unavoidableunder a version of Section 504 that mandated effective notice and easy availabilityof lockboxes-would be sufficient to lead to the same kinds of time-channelingunder Section 504 as the district court found would occur under Section505. Indeed, an enhanced Section 504 would likely result in more restrictionson speech, since at least some parents, given effective notice of the problem,may well seek lockboxes even if cable operators choose to time-channel theirprogramming; to avoid the costs of supplying those lockboxes, cable operatorsmight simply drop appellee's programming altogether. An enhanced Section504 thus would not be less restrictive of speech than Section 505.
6. The district court's dismissal of our post-trial motions puts the governmentin an untenable position. See J.S. 25-29. The district court's opinion statedthat it would "require" appellee to take certain actions, J.S.App. 38a, but its injunction omitted any such requirement. Under the districtcourt's ruling, however, we could obtain a resolution of the contradictionbetween the district court's opinion and its injunction only by delayingfiling a notice of appeal until the district court acted on our post-trialmotions, thereby risking that our notice of appeal would be deemed to havebeen jurisdictionally out of time.
Appellee argues that "[o]nly a handful of cases," Mot. to Aff.30 n.31, may be affected by the legal issue presented. Those cases, however,frequently involve serious constitutional issues in which it is particularlyimportant that orderly processes of litigation be available to the courtand the parties, so that premature or unnecessary resolution of constitutionalquestions may be avoided and issues may be presented to this Court in amanner most suitable for this Court's resolution. Plenary review of thedistrict court's jurisdictional ruling is warranted, so that parties incases in which a direct appeal to this Court is available may both protecttheir rights to appeal and obtain postjudgment relief from the districtcourt that could alter or clarify the issues on appeal in this Court-oreven eliminate the need to take an appeal at all.
* * * * *
For the foregoing reasons and those stated in the jurisdictional statement,the Court should note probable jurisdiction.
Respectfully submitted.

SETH P. WAXMAN
Solicitor General
CHRISTOPHER J. WRIGHT
General Counsel
Federal Communications
Commission


JUNE 1999

1 Appellee states that our claim that "the government's interest isstronger here than in the broadcasting context because Pacifica involvedthe one-time broadcast of inappropriate language compared to channels thatcarry virtually 100% sexually explicit adult programming is not correct,nor is it supported by the record below." Mot. to Aff. 12 (quotingJ.S. 17) (internal quotation marks and citation omitted). The district courtrepeatedly stated that "[t]he programming on the Playboy network isvirtually 100% sexually explicit adult programming." J.S. App. 5a-6a;see also id. at 42a, 47a. Indeed, the court distinguished appellee's broadcastingfrom that of other channels, which broadcast material "which containedsome sexually explicit scenes but were not continuously sexually explicit."Id. at 6a. A child may therefore easily find sexually explicit materialby tuning in to signal bleed from appellee's channels.

2 Appellee errs in stating that "[t]here is no dispute that Section505 prevents the transmission of Appellee's programming during 'the hourswhen most viewers want to see such programming.'" Mot. to Aff. 15 (quotingJ.S. 18 n.6); see also id. at 3, 27. The district court found that "30-50%of all adult programming is viewed by households prior to 10 p.m."J.S. App. 33a. It follows that 50-70% of such programming is viewed after10 p.m. and would not therefore be affected by Section 505. The safe harborprovision of Section 505 permits the transmission of appellee's programmingwhen most viewers want to see it, and it imposes only a minor restrictionon the minority who want to view it at a different time. The cited portionof the jurisdictional statement makes that point. See J.S. 18 n.6 ("Wedo not dispute that time-channeling of indecent sexually explicit televisionprogramming to the hours when most viewers want to see such programmingis a restriction on such programming."). Indeed, the fact that thesafe-harbor hours are precisely the hours when adults usually want to viewsexually explicit programming, coupled with the easy availability of VCRmachines to tape such programming and play it at a time convenient to theviewer, emphasizes the relatively modest scope of the restriction imposedby Section 505.

3 The district court found that most cable operators use a technology thatleaves the audio portion of appellee's sexually explicit programming entirelyaudible and leaves portions of the video programming intelligible to varyingdegrees. J.S. App. 7a-8a. Indeed, the district court's finding that "thevast majority (in one survey, 69%) of cable operators have, in responseto § 505, moved to time channeling," id. at 16a-17a, makes clearthat the cable industry itself believes that signal bleed occurs with someregularity; otherwise, those systems would not have chosen to undergo theloss of revenue that results from limiting sexually explicit channels tothe safe-harbor hours.

4 Cf. 518 U.S. at 806 (opinion of Kennedy, J.) ("Congress does have* * * a compelling interest in protecting children from indecent speech.So long as society gives proper respect to parental choices, it may, underan appropriate standard, intervene to spare children exposure to materialnot suitable for minors.") (citations omitted).