Section 505 of the Telecommunications Act of 1996, Pub. L. No. 104-104,Tit. V, 110 Stat. 136, requires that a cable television operator "providingsexually explicit adult programming or other programming that is indecenton any channel of its service primarily dedicated to sexually-oriented programming"either "fully scramble or otherwise fully block the video and audioportion of such channel so that one not a subscriber * * * does not receiveit," or, alternatively, not provide that programming "during thehours 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 todispose of the government's post-judgment motions under Rules 59 and 60of the Federal Rules of Civil Procedure by the government's filing of anotice of appeal while those motions were pending.
Appellants are the United States of America, Janet Reno, Attorney General,the United States Department of Justice, and the Federal CommunicationsCommission. Appellee is Playboy Entertainment Group, Inc. Spice EntertainmentCompanies, Inc. (formerly Graff Pay-Per-View), was a party below but, afterfailing to obtain a preliminary injunction, chose not to participate inlitigation 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 reportedat 30 F. Supp. 2d 702. The permanent injunction (J.S. App. 87a-88a) andthe order denying the government's post-trial motions (J.S. App. 91a-92a)are unreported. The prior opinion of the district court denying a preliminaryinjunction (J.S. App. 40a-86a) is reported at 945 F. Supp. 772. The orderof this Court affirming the denial of the preliminary injunction is reportedat 520 U.S. 1141. The opinion of the district court granting a temporaryrestraining order (Mot. to Aff. App. 1a-17a) is reported at 918 F. Supp.813.
The permanent injunction of the three-judge district court, dated December29, 1998, was entered on December 30, 1998. The government filed a noticeof appeal on January 19, 1999 (a Tuesday after a Monday holiday). On March10, 1999, Justice Souter extended the time for filing a jurisdictional statementto and including April 19, 1999. On March 18, 1999, the district court enteredan order dismissing the government's motions to alter or amend the judgmentand to correct the judgment. On April 7, 1999, the government filed a secondnotice of appeal, from both the original injunction and the order dismissingthe government's post-trial motions. This Court noted probable jurisdictionon 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.
The First Amendment of the United States Constitution provides that "Congressshall make no law * * * abridging the freedom of speech." Sections504, 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 "signalbleed" of cable television channels that are devoted to sexually explicit,"adult" programming. Such signal bleed occurs when cable operatorspartially 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 clearsignal. Because the scrambling is only partial, however, intelligible videoand audio signals remain, and are transmitted to all households on the cablesystem. As a result, children in all households on a given cable system-even those households that do not subscribe to appellee's programming services-maybe able to view and hear the sexually explicit content on appellee's programmingthat 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 anadditional 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-viewbasis, 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 premiumprogramming are not able to view it, most cable operators scramble the programmingat their central transmission facility, using either "RF" or "baseband"technology. RF scrambling causes the picture to jump and roll on the televisionsets of customers who are not authorized to receive the premium channel,although the images on the screen can be discerned to varying degrees atvarying times. The cable system provides customers who are authorized toreceive premium channels with a set-top device, called a "converter,"which is connected between the subscriber line and the television set tocounteract the scrambling and permit clear reception of one or more premiumchannels. RF scrambling does not affect the audio portion of the signal,and, as a result, the scrambling does not prevent the audio portion frombeing heard clearly on all customers' television sets at all times. J.S.App. 7a.
Modern baseband scrambling, in contrast, renders the video portion of thesignal unintelligible. As with RF scrambling, subscribers authorized toreceive 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 subscribeto the scrambled premium service. For the most part, however, cable operatorsuse RF scrambling or prior generations of baseband scrambling, which donot render the video completely unintelligible and do not scramble the audioat 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 systemreceive the scrambled signal on all televisions that are connected to thecable system. As a result, the cables in those systems that carry premiumprogramming but do not conform to the scrambling and blocking requirementsof Section 505 typically carry a partially scrambled video signal and acompletely clear audio signal of the premium programming, including, whenoffered, sexually explicit programming. J.S. App. 9a.
2. Congress enacted the statutory provision at issue in this case, Section505 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 channelsthat are devoted to sexually explicit, "adult" programming. Congresswas "aware that some cable systems [were] permitting 'adult' programsthat [were] clearly unsuitable for children to be received in the home withoutsufficient 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 orlistening to the adults-only channel, a channel that many parents did noteven know existed." 141 Cong. Rec. S8167 (daily ed. June 12, 1995).As an example, she referred to the fact that a "partially scrambledpornography signal was broadcast only one channel away from a network broadcastingcartoons and was easily accessible for children to view." Ibid.
The record in this case reflects the very graphic audio and visual contentof the sexually explicit programming services the availability of whichto children was the subject of congressional concern. We have lodged withthe Court copies of three tapes, DXs 1, 2 and 44, that are in the recordin this case1 and that demonstrate the extent to which reasonably discernibleimages and sounds can be seen and heard on sexually explicit cable programmingservices operated by appellee and others, despite the scrambling that cableoperators ordinarily undertake. In addition, we have lodged two other videotapesin the record, DXs 11 and 35, that show unscrambled programming on Playboyand Spice. These tapes were among those provided by appellee and Spice inresponse to a government request for copies of their programming on randomlyselected dates.2 Finally, some of the content of the programming on Playboy,Spice, and similar sexually explicit cable programming services is describedat pages 5-10 of Defendants' Post-Trial Brief, which was filed in the districtcourt; we have lodged copies of those pages from our post-trial brief withthe Clerk of this Court. We have not reproduced descriptions of the programmingand the language used in the programming in this brief, but we urge theCourt to examine those lodgings, so that the Court may be familiar withthe programming at issue in this case and with the problem of signal bleed.
Congress's concerns about such programming were triggered by complaintsfrom across the country. For example, Mr. Anthony Snesko of Poway, California,had made 550 copies of a videotape showing the Spice Channel as it appearedon his television at 9 a.m. sometime in April or May, 1994, and had distributeda 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 toher Representative that she had recently found her eight-year-old son, seven-year-olddaughter, and a playmate watching Spice at 4 p.m., "transfixed"by scenes of "a naked man sodomizing a woman" and the "groansand epithets that go along." DX 55.4 In 1993, Senator Biden urged theFederal Communications Commission to review a cable company's compliancewith federal law after large numbers of Delaware residents voiced objectionsabout unwanted reception of Spice. DX 72. See also DXs 59, 61, 70 (constituentletters complaining about inadequately scrambled "sex channels"and their availability to children).
In her floor statement, Senator Feinstein acknowledged that an alternativeapproach would be for cable operators to provide complete blocking of audioand 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 ButSenator Feinstein urged that a provision for blocking on demand would not"go far enough," because it would "put the burden of actionon the subscriber * * * by requiring a subscriber to specifically requestthe blocking of indecent programming." Ibid.
3. Section 505 became law on February 8, 1996, when the President signedthe Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56. UnderSection 505, "[i]n providing sexually explicit adult programming orother programming that is indecent on any channel of its service primarilydedicated to sexually-oriented programming, a multichannel video programmingdistributor"-a term that includes a cable operator-"shall fullyscramble or otherwise fully block the video and audio portion of such channelso that one not a subscriber to such channel or programming does not receiveit." 110 Stat. 136 (47 U.S.C. 561(a) (Supp. III 1997)). Until the cableoperator complies with these requirements, it "shall limit the accessof children" to such programming "by not providing such programmingduring 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 interimrule 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 Commissioninterpreted the term "sexually explicit adult programming," asused 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 interimbasis to mean "any programming that describes or depicts sexual orexcretory activities or organs in a patently offensive manner as measuredby contemporary community standards for the cable medium," and proposedto adopt that definition on a permanent basis. Id. para. 9. As the Commissionexplained, that is essentially the same definition adopted by the Commissionfor 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-harborhours that it had previously established, based on an extensive administrativerecord, in its rule governing indecent over-the-air broadcast televisionor radio programs, which had been sustained by the District of ColumbiaCircuit, sitting en banc, in Action for Children's Television v. FCC, 58F.3d 654 (1995), cert. denied, 516 U.S. 1043 (1996). Implementation of Section505, paras. 5, 8; see 47 C.F.R. 73.3999. The rules implementing Section505 became effective on May 18, 1997. Implementation of Section 505 of theTelecommunications Act of 1996, 12 F.C.C.R. 5212 (Apr. 17, 1997).
4. Appellee Playboy Entertainment Group provides "virtually 100% sexuallyexplicit adult programming," J.S. App. 6a, for transmission by cableoperators to premium subscribers who choose to order Playboy's programming.Playboy provides such programming via its Playboy Television and AdulTVisionnetworks. Id. at 5a. On February 26, 1996, Playboy filed suit in the UnitedStates District Court for the District of Delaware seeking declaratory andinjunctive relief against the operation of Section 505. The complaint allegedthat Section 505 violates Playboy's rights under the First Amendment andthe equal protection component of the Due Process Clause of the Fifth Amendment.The district court consolidated the action with a similar action broughtby Spice Entertainment Companies (formerly known as Graff Pay-Per-View),which operated channels similar to those operated by Playboy.6 A three-judgecourt was convened pursuant to Section 561 of the Telecommunications Actof 1996, Pub. L. No. 104-104, 110 Stat. 142 (47 U.S.C. 223 note (Supp. III1997)).
On November 8, 1996, the three-judge court issued a decision denying Playboy'smotion 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 somethingvery close to strict scrutiny" as a content-based restriction on speech,id. at 67a, the court held that Section 505 is carefully tailored to furtherthe compelling interest in protecting children. The court explained thatSection 505 "does not seek to ban sexually explicit programming, nordoes it prohibit consenting adults from viewing erotic material on premiumcable networks if they so desire." Id. at 78a. Instead, the court explained,Section 505 permits cable operators to provide sexually explicit programmingto willing subscribers if the operators avail themselves of either of twoalternative approaches to protecting nonsubscribers-full scrambling of audioand video, or time-channeling. Id. at 76a.
5. Playboy appealed the denial of its request for a preliminary injunctiondirectly 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 December28, 1998, the district court issued a decision holding that Section 505is unconstitutional under the First Amendment.
The court held, as it had at the preliminary injunction stage, that "eitherstrict scrutiny or something very close to strict scrutiny" shouldbe applied. J.S. App. 23a. The court also held that Section 505 is constitutionalonly if the government proves that it "is a 'least restrictive alternative,'i.e., that no less restrictive measures are available to achieve the sameends the government seeks to achieve." Id. at 26a.
The court noted that the government asserted three compelling interestssupporting Section 505: "the Government's interest in the well-beingof the nation's youth-the need to protect children from exposure to patentlyoffensive sex-related material"; "the Government's interest insupporting parental claims of authority in their own household-the needto protect parents' right to inculcate morals and beliefs [i]n their children";and "the Government's interest in ensuring the individual's right tobe left alone in the privacy of his or her home-the need to protect householdsfrom unwanted communications." J.S. App. 26a-27a. Although it expressedsome doubt about the strength of the empirical evidence in the record regardingharm to minors, see id. at 30a, the court held that all three of those interestsare present and, in sum, are compelling. Id. at 32a.
The court held, however, that Section 505 is not the least restrictive alternativethat the government could have adopted to advance those interests. J.S.App. 35a. The court found that, under Section 505, cable operators "withincomplete scrambling technology" that could not completely eliminatesignal bleed "chose time channeling because no other system-wide blockingtechnique is economically feasible." Id. at 33a n.23; see also id.at 16a-17a. The court found that such time-channeling restricts "asignificant amount of speech," because "30-50% of all adult programmingis 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-neutralprovision that permits subscribers voluntarily to request a free blockingdevice, thus avoiding the need for full scrambling or time channeling. Id.at 34a-35a.
The court acknowledged that an alternative must be not only less restrictivebut also "a viable alternative." J.S. App. 35a. In this respect,the court noted that "parents usually become aware of the problem onlyafter the child has been exposed to signal bleed, and then the damage hasbeen done," and that even if parents are aware of the problem, "thesuccess of § 504 depends on parental awareness that they have the rightto receive a lockbox free of charge." Ibid. The court was unable tofind that the experience during the 14-month period in which Section 504was in effect but Section 505 was enjoined was sufficient to alleviate thecourt's concerns regarding the adequacy of notice to customers under Section504.8 Specifically, notwithstanding the applicability of Section 504 duringthat time, cable operators still had distributed blocking devices on requestto fewer than one-half of one percent of subscribers. The court stated,however, that the "minimal lockbox distribution is equally consistentwith an ineffective statute as it is with a societal response that signalbleed 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."Ibid.
To address the concern that inadequate notice rendered Section 504 insufficientto protect the interests involved, the court set forth what would constitute"adequate notice" under Section 504 in the future. First, thecourt explained, it should include a basic notice to subscribers that childrenmay be viewing signal bleed from sexually explicit programming and thatblocking 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]ppropriatemeans," including "inserts in monthly billing statements,""on-air advertisement on channels other than the one broadcasting thesexually explicit programming," and "a special notice" whena cable operator "change[s] the channel on which it broadcasts sexuallyexplicit programming." Id. at 37a. The cable operator would have toprovide the means whereby "a request for a free device to block theoffending channel can be made by a telephone call" to the cable operator.Ibid. Finally, the notice should be given "on a regular basis, at reasonableintervals," and whenever a cable operator "change[s] the channelon which it broadcasts sexually explicit programming." Ibid.
Against this background, the court held that, as enhanced with what it deemedto be "adequate notice," Section 504 would be "a less restrictivealternative to § 505." J.S. App. 38a. Because neither party hadproposed an enhanced Section 504 as an alternative to Section 505, neitherparty had addressed whether and to what extent such an enhanced Section504 would serve the interests underlying Section 505 or would restrict speechless than Section 505. Nonetheless, the district court found that, "withadequate notice of the issue of signal bleed, parents can decide for themselveswhether it is a problem," and "to any parent for whom signal bleedis a concern, § 504, along with 'adequate notice,' is an effectivesolution." Id. at 37a-38a. The court did not address how cable operatorswould respond to the enhancements it proposed for Section 504, or whetherand how expenses incurred as a result of those enhancements would lead cableoperators to restrict appellee's programming.
The district court recognized that it could not require all cable operatorsthat transmit sexually explicit programming services to provide the typeof "adequate notice" that the court had hypothesized, becauseas non-parties the operators were not subject to the court's jurisdiction.But the court pointed out that it did have jurisdiction over Playboy, anddeclared that it would require Playboy to include notice provisions in itscontractual arrangements with cable operators. The district court then reiteratedthat unless adequate notice is provided, Section 504 would not be an effectivealternative to Section 505. J.S. App. 38a.
7. On December 29, 1998, the day after announcing its decision, the courtissued 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 onlyprogrammer of sexually explicit broadcasting that remains a party to thislawsuit.
On January 12, 1999, the government filed a motion under Rule 59(e) of theFederal Rules of Civil Procedure seeking to alter or amend the judgmentto limit the injunction to Playboy, and it filed a motion under Rule 60(a)seeking to correct the judgment by including the requirement discussed inthe court's opinion-that Playboy ensure that its contracts require cableoperators to provide "adequate notice" to cable customers. Thegovernment then filed a notice of direct appeal to this Court on January19, 1999, 20 days after entry of the injunction, as provided in Section561(b) of the Telecommunications Act of 1996 (110 Stat. 143). J.S. App.89a-90a.
On March 18, 1999, the district court dismissed the government's two motions,stating that it "lack[ed] jurisdiction to adjudicate these motionsdue to subsequent filing of Defendants' notice of appeal to the United StatesSupreme Court." J.S. App. 91a-92a. On April 7, 1999, the governmentfiled a second notice of appeal, addressed to both the original injunctionand the March 18 order. Id. at 93a-95a. This Court noted probable jurisdictionon June 21, 1999.
This case involves the constitutionality of a law enacted by Congress tolimit the ability of minors to obtain access to highly graphic, sexuallyexplicit programming that intrudes, uninvited, into American homes throughthe signal bleed of sexually explicit programming channels on cable television.It cannot be reasonably doubted that the interests served by the law-theprotection of minors and of the privacy of the home-are compelling ones.Nor can it reasonably be doubted that in enacting Section 505, Congresscarefully directed its aim at the programming by-product that creates theevil, leaving it entirely open to cable operators to broadcast sexuallyexplicit materials to their subscribers at any time (so long as minors arenot threatened by signal bleed of those materials) or during hours whenchildren are unlikely to be in the audience (if signal bleed at other timeswould be unavoidable). Nonetheless, the district court held that Section505 is unconstitutional, because the court believed that it could hypothesizean entirely untried version of another statute-a version not proposed oraddressed as an alternative by any party to this case-that would in itsview 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 casesthat have followed it, this Court has consistently recognized that, in undertakingFirst Amendment review of indecency on television and radio, a court mustbe cognizant of the uniquely pervasive and intrusive presence of those mediain American homes and the unique accessibility of those media to children.Unlike in other First Amendment contexts, the cost of unduly limiting Congress'sability to act in this area is to disable society from serving criticalinterests in the protection of children and privacy; it would leave childrenexposed to graphic, sexually explicit audio and visual programming thatour society has long viewed as entirely inappropriate for them. Accordingly,a court should be particularly careful in this context to accord deferenceto Congress's reasonable, predictive judgments that a particular, carefullytailored measure-such as Section 505-is the least restrictive alternativethat would achieve its ends. The district court entirely failed to accordsuch deference, and its judgment should be reversed for that reason.
In any event, even under the exceptionally stringent standard of reviewemployed by the district court, Section 505 is constitutional. The districtcourt based its decision entirely on the prediction that its hypothetical,enhanced version of Section 504 would prove to be a less restrictive alternativeto Section 505. The enhanced Section 504, however, would neither be an effectivealternative nor would it be less restrictive than Section 505. That is particularlytrue with respect to the application of Section 505 to the increasing numberof cable systems that have the digital or other capacity to provide completeblocking; applying Section 505 to them is constitutional because it imposesno burden at all on speech. But it is also true with respect to the applicationof Section 505 to the larger number of cable systems without digital orother means to accomplish easy and inexpensive blocking.
The enhanced Section 504 would not be an effective alternative because itwould not serve the compelling interests underlying Section 505. As thedistrict court recognized, those interests include, inter alia, society'sinterest in protecting children from sexually explicit materials, separateand apart from its interest in helping parents to exercise their parentalauthority. But the district court entirely failed to assess whether itsenhanced Section 504 would serve that fundamental interest. Even an enhancedversion of Section 504 would succeed in blocking signal bleed only if parentsaffirmatively decided to avail themselves of the means offered to them todo so. Inevitably some parents-probably a great many parents-will fail totake advantage of those means, out of inertia, indifference, or distraction.Under an enhanced version of Section 504, children of those parents, andfriends of those children, would thus remain exposed to sexually explicitsignal bleed, and society's independent interest in protecting childrenwould not be served. Under Section 505, by contrast, such children wouldremain protected, unless and until their parents exercised their choiceto subscribe to a sexually explicit programming service.
The district court's hypothetical, enhanced Section 504 would also leadto at least the same limitation on the availability of appellee's programmingas Section 505. The district court itself never analyzed whether cable operatorswould respond to its enhanced Section 504 in the same way that they respondedto Section 505. But the court did find that, if an extremely modest numberof households (less than 3% to 6%) sought blocking of a channel under Section504, the cost of providing that blocking would lead cable providers to dropthat programming altogether or time-channel it (if some kind of time-channelingoption were offered). In fact, if the enhanced Section 504 hypothesizedby the district court actually provided clear notice of the problem of signalbleed on sexually explicit channels and easy availability of blocking devices,it would certainly lead to a significant increase in the number of subscribersrequesting such devices. Accordingly, it would lead cable operators to dropor time-channel appellees' programming-precisely the same result that thedistrict court believed would follow from the application of Section 505.
II. The district court also erred in holding that our filing of a noticeof appeal to this Court divested the district court of jurisdiction to ruleon our motions to alter or amend, and to correct, the judgment. Becausethis Court's Rules leave uncertain the question whether such motions tollthe time for appealing, a prudent litigant in a case in which direct appealto this Court is authorized must file a notice of appeal even if the litigantbelieves that it has meritorious grounds to seek postjudgment relief fromthe district court. There is no reason why such a notice of appeal shoulddivest the district court of jurisdiction to rule on the motions for postjudgmentrelief. That is particularly true prior to the time when the case is docketedin this Court, because there is no possibility that the district court andthis 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 beforedocketing in this Court would potentially clarify the issues on appeal oreven make the further prosecution of the appeal in this Court unnecessary.
I. THE MEASURES REQUIRED BY SECTION 505 OF THE TELECOMMUNICATIONS ACT OF1996 TO PROTECT CHILDREN AND THE PRIVACY OF THE HOME AGAINST SEXUALLY EXPLICITPROGRAMMING ON CABLE TELEVISION ARE CONSISTENT WITH THE FIRST AMENDMENT
A. First Amendment Scrutiny Of The Regulation Of Sexually Explicit MaterialOn Cable Television Must Be Conducted With Sensitivity To Society's DistinctInterests In Protecting Children And In Protecting Against Unwanted IntrusionsInto The Privacy Of The Home
1. When reviewing government regulation of the content of constitutionallyprotected speech, this Court generally has held that such regulation ispermissible 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 regulationof indecency on broadcast media. In particular, the Court held in Pacificathat "special treatment of indecent broadcasting" is "amplyjustif[ied]," and it upheld a time-channeling regulation of indecencyon broadcast radio that prohibited the broadcast of such material duringhours when children were likely to be in the audience. Id. at 750. The Courtexplained that among the justifications for such "special treatment"are the facts that "the broadcast media have established a uniquelypervasive presence in the lives of all Americans"; indecency on televisionor radio "confronts the citizen * * * in the privacy of the home";"the broadcast audience is constantly tuning in and out, [and] priorwarnings cannot completely protect the listener or viewer from unexpectedprogram content"; and "broadcasting is uniquely accessible tochildren, even those too young to read." Id. at 748-749. In light ofthose unique features, the Court held that a regulation that entirely prohibitedindecent speech during much of the broadcast day was constitutional, eventhough a similar content-based restriction of non-obscene speech would surelybe 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 Courtnoted that the "special treatment of indecent broadcasting" upheldin Pacifica was justified because the regulation at issue there "didnot involve a total ban on broadcasting indecent material," but instead"sought to channel it to times of day when children most likely wouldnot be exposed to it." Ibid. In addition, the Court pointed out thatPacifica "relied on the 'unique' attributes of broadcasting, notingthat broadcasting is 'uniquely pervasive,' can intrude on the privacy ofthe home without prior warning as to program content, and is 'uniquely accessibleto 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 stringentreview" applies to regulation of indecency on the Internet, but itreaffirmed that "special treatment of indecent broadcasting" bymeans of non-criminal regulation is appropriate, id. at 867, essentiallyfor the reasons given above, see id. at 866-868.
2. The same "all-important" context that guided the Court's reviewof regulation of over-the-air broadcast indecency in Pacifica is presentwhen the government regulates transmission of similar programming on cabletelevision, especially when the regulation offers the same time-channelingoption as in Pacifica. In Denver Area Educational Telecommunications Consortium,Inc. v. FCC, 518 U.S. 727 (1996), the Court considered a challenge to severalstatutory provisions that addressed indecency on cable television. Noneof the opinions in Denver Area suggested that regulation of indecency oncable television should be analyzed under standards that differ in any wayfrom the standards governing regulation of indecency on over-the-air broadcasttelevision and radio.
In a portion of the opinion authored by Justice Breyer that was identifiedas the opinion of the Court, he stated that, in order to resolve the issuesin Denver Area, it was not necessary to "determine whether, or theextent to which, Pacifica does, or does not, impose some lesser standardof review where indecent speech is at issue." 518 U.S. at 755.10 Buthowever the nature of the scrutiny under Pacifica is described, elsewherein his opinion, in which he spoke for a plurality of the Court, JusticeBreyer relied heavily on Pacifica to uphold one of the cable televisionregulations at issue there, id. at 744-748. Moreover, the plurality distinguishedSable, in which the Court held unconstitutional a ban on indecent telephonemessages, on the ground that Sable, unlike Denver Area, involved "acommunications medium, telephone service, that was significantly less likelyto expose children to the banned material, was less intrusive, and allowedfor significantly more control over what comes into the home than eitherbroadcasting or the cable transmission system before us." Id. at 748.The plurality concluded that, with respect to the way in which "parentsand children view television programming, and how pervasive and intrusivethat programming is[,] * * * cable and broadcast television differ little,if at all." Ibid.
The separate opinion of Justice Kennedy in Denver Area also noted the significanceof context in reviewing regulation of indecency on television and radio.Relying on Pacifica, Justice Kennedy stated that cable television channelsare "uniquely accessible to children" and that the "governmentmay properly act in many situations to prohibit intrusion into the privacyof the home of unwelcome views and ideas which cannot be totally bannedfrom the public dialogue." 518 U.S. at 804 (Kennedy, J., concurringin part, concurring in the judgment in part, and dissenting in part) (quotingCohen 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."Ibid.11
3. There are factors present in this case that make it even clearer thanin Pacifica that some degree of governmental flexibility in regulation iswarranted. First, the regulation in Pacifica was aimed directly at a purposefulcommunication between the broadcaster and willing listeners, and it restedon the ground that the material broadcast was indecent and should not beavailable to children. By contrast, Section 505 is aimed not at the intendedcommunication-the communication between those who produce sexually explicitcable programs and those who subscribe to them-but at a byproduct of thatcommunication (signal bleed) that can be harmful to children.12 Cf. Schneiderv. State, 308 U.S. 147, 162 (1939). Insofar as the sexually explicit programmercan communicate with its audience without creating that byproduct-as isthe case on cable systems with digital or other equipment that completelyblocks the programming to nonsubscribers (see page 40, infra), Section 505imposes no cognizable restriction on speech at all. But insofar as the intendedcommunication creates signal bleed as a byproduct-a byproduct in which appelleehas not asserted any independent First Amendment interest, see J.S. App.42a (noting that appellee did not "contend that signal bleed itselfis protected speech")- Section 505 requires that it be blocked or time-channeledto hours when children are not likely to be in the viewing audience.13 BecauseSection 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 interestsserved by Section 505 outweigh any countervailing First Amendment interestseven more than they did in Pacifica.14
Additionally, the burden on speech imposed by Section 505 is much less thanthat imposed by the regulation in Pacifica, thus providing further supportfor the need for some regulatory flexibility. Unlike in Pacifica, wheretime-channeling to the safe-harbor hours was the only way in which the regulatedcommunication could be made, Section 505 permits transmission of sexuallyexplicit material at any time of the day or night on the increasing numberof cable systems that can completely block the signal, by digital or othermeans, to nonsubscribers. In addition, the burden imposed on speech by Section505, 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'sviewers watch during the safe-harbor hours anyway, and their viewing thereforewould not be affected by time-channeling.15 Moreover, the great majorityof appellee's subscribers consist of those who watch on a pay-per-view basis,16and its average pay-per-view subscriber purchases appellee's programmingfive times per year, Tr. 90-91, and watches, on average, only one hour eachtime, DX Vol. 2, No. 78, at 7. And even those subscribers may make use ofthe videocassette recorders now located in most American homes to tape programmingduring the safe-harbor hours and watch it whenever they wish.17 Both thisCourt and the lower courts have recognized that some restriction on thecommunications activities of adults may be constitutional if necessary toserve the compelling interest in protecting minors.18
Finally, the risks to children posed by appellee's programming are substantiallygreater than those present in Pacifica. Unlike the one-time broadcast ofinappropriate language-with no accompanying visual representation-at issuein Pacifica, this case involves channels that carry "virtually 100%sexually explicit adult programming." J.S. App. 6a, 42a, 47a. As describedabove and in our lodgings (see pages 4-6, supra), the programming at issuehere consists largely of frequent, close-up, and graphic scenes of sexualintercourse and related sex acts. The result, due to signal bleed, is "anunbroken continuum of sexually explicit sounds and images, delivered withoutinvitation to [children's] home[s]." Id. at 73a n.26. Indeed, the soundtracks from appellee's programming alone are much coarser and far more offensivethan the broadcast that was at issue in Pacifica. See page 6 and note 4,supra. Children generally watch more television than do their parents, seeDenver Area, 518 U.S. at 744-745; they often do so when their parents arenot present, and they are thus likely to be subject to signal bleed beforetheir parents even know about it.19 Accordingly, the risks to children posedby signal bleed-and the corresponding risks to society that would resultfrom eliminating the most effective means to deal with the problem-are highlyrelevant to the First Amendment analysis.
4. a. Regardless of how the standard of review is characterized, each Memberof the Court in Denver Area recognized-as did the Court in Pacifica-thatthe government is entitled to some flexibility in regulating indecency oncable television. That conclusion is correct. In many other contexts, thegovernment's burden to justify regulation that has effects on protectedspeech is particularly heavy, because the potential cost of curtailing governmentregulation is presumed to be less than the potential cost of curtailingspeech. Here, however, for the reasons given above, the cost of unduly limitingsociety's ability to impose the marginal limitation on speech that resultsfrom Section 505 would be extraordinarily high. Indeed, in light of suchpotential costs, it is not surprising that the Court has hesitated to applya rigid analysis to regulation of indecency on television and radio.
In the present case, it would be appropriate to recognize the needed flexibilityto accommodate society's interests in the context of indecent programmingon broadcast and cable systems, regardless of the level of scrutiny applied,by giving effect to the long-accepted principle "that courts must accordsubstantial deference to the predictive judgments of Congress." TurnerBroadcasting 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. Inparticular, Congress's judgment that a particular means (such as Section505) of addressing the problem of indecency on television or radio is necessaryis entitled to substantial deference. Of course, Congress's determinationthat a particular measure is necessary must reflect a reasonable choiceamong the available alternatives, and judicial scrutiny is appropriate "toassure that * * * Congress has drawn reasonable inferences based on substantialevidence." Turner Broadcasting, 512 U.S. at 666. Moreover, the measurechosen must directly aim at the problem of the availability of indecencyto minors on television or radio. But mere speculation that some other,untested (and, in this case, ill-defined) measure would also accomplishthe desired end is insufficient to upset Congress's judgment. The need torespect Congress's predictive judgments in this context is particularlyclear, because, as we explain below (see pages 35-40, infra), the questionwhether Section 505 is less restrictive than other alternatives dependsin part on predictions about the effects of Section 505 and other hypotheticalmeasures 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 groundthat, as compared with an enhanced version of Section 504 that it hypothesized,Section 505 was not the least restrictive measure that could have been enactedto achieve Congress's compelling interests. As we demonstrate below, evenunder the most stringent scrutiny employed by this Court, that conclusionwas mistaken, because the hypothesized alternative would not fully servethe 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 (seepages 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 wasnecessary to achieve its ends-and that no other likely measure could accomplishits goals without imposing at least as great a burden on speech-was at leasta reasonable one. Taking into account the "all-important context"in which Section 505 operates, that should be sufficient to establish thatSection 505 is constitutional.
b. Far from giving careful consideration to the context in which Section505 operates, as required by Pacifica and the subsequent decisions of thisCourt discussed above, the district court gave it no weight at all. Thedistrict court did acknowledge at one point that "the context of [Section505's] content-based restriction must * * * be considered," because"[c]able television is a means of communication that is both pervasiveand to which children are easily exposed." J.S. App. 26a. But the courtproceeded to attach essentially no significance to that "context"in holding that "[t]he Government must prove that * * * no less restrictivemeasures are available to achieve the same ends the government seeks toachieve." Ibid. The court applied its "least restrictive alternative"test in a particularly rigorous manner, holding that Section 505 is unconstitutionalsolely because the court could imagine an alternative, entirely hypotheticalscheme whose practicality, cost, and legality have never been tested. Seeid. at 35a-39a.
Indeed, the district court held its enhanced version of Section 504 to bea less restrictive alternative to Section 505 despite the fact that therehad been no opportunity for litigation regarding its adequacy or consequences.Appellee had relied on Section 504 as enacted-without all of the districtcourt's enhancements-as a less restrictive alternative, see J.S. App. 19a,and the government therefore had litigated that issue, not the adequacyof the district court's hypothetical version of the statute.21 Apparently,the district court believed that regulations like Section 505 are so disfavoredthat the court's ability to hypothesize an entirely untried and unscrutinizedalternative was sufficient to establish that Section 505 is unconstitutional.The district court's methodology was inconsistent with this Court's emphasison the care with which review must proceed in this context, so as not undulyto impair society's ability to serve the compelling interests at stake.
The district court identified three interests that support Section 505:
1) the Government's interest in the well-being of the nation's youth-theneed to protect children from exposure to patently offensive sex-relatedmaterial; 2) the Government's interest in supporting parental claims ofauthority in their own household-the need to protect parents' right to inculcatemorals and beliefs [i]n their children; and 3) the Government's interestin ensuring the individual's right to be left alone in the privacy of hisor her home-the need to protect households from unwanted communications.
J.S. App. 26a-27a. See id. at 32a (concluding, after discussing each ofthe above interests, "that § 505 addresses three interests whichin sum can be labeled 'compelling'").22
This Court has carefully distinguished between the first and second of thoseinterests in the past, referring in Reno v. ACLU both to "the State'sindependent interest in the well-being of its youth," and to "theprinciple that 'the parents' claim to authority in their own household todirect 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 decidehow 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 interestin the upbringing of youth, especially when parents, as a result of inertiaor indifference or the competing claims of other responsibilities, failto exercise their own authority. See id. at 166-170. See also Action forChildren's Television, 58 F.3d at 661-663.
In determining whether its hypothetical, enhanced version of Section 504would provide a less restrictive alternative to Section 505, the districtcourt entirely ignored society's independent interest in seeing to it thatchildren are not exposed to sexually explicit materials. The district courtstated:
[W]ith adequate notice of the issue of signal bleed, parents can decidefor themselves whether it is a problem. Thus to any parent for whom signalbleed is a concern, § 504, along with 'adequate notice,' is an effectivesolution. In reality, § 504 would appear to be as effective as §505 for those concerned about signal bleed, while clearly less restrictiveof First Amendment rights.
J.S. App. 37a-38a. It seems highly unlikely that the district court wascorrect in its apparent belief that its enhanced version of Section 504would be sufficient to inform all parents of the problem of signal bleedand to permit them to eliminate it easily and effectively. But even if itwere, such a measure would serve only two of the interests the districtcourt identified-the interests in "protect[ing] parents' right to inculcatemorals and beliefs [i]n their children" and "ensuring the individual'sright 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 strongfeelings about the matter could see to it that their children did not viewsignal 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 exposureto indecent, sexually explicit materials, and the district court's reasoningtakes no account of that interest. Even an enhanced version of Section 504would succeed in blocking signal bleed only if, and after, parents affirmativelydecided to avail themselves of the means offered them to do so. There wouldcertainly be parents- perhaps a large number of parents-who out of inertia,indifference, or distraction, simply would take no action to block signalbleed, even if fully informed of the problem and even if offered a relativelyeasy solution.23 There also are children who would view signal bleed atthe homes of friends whose parents, due to the same factors, do not actunder 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 explicitmaterials. Section 505 would protect that interest, by ensuring that childrenare not exposed to signal bleed as a result of inertia, indifference, ordistraction; Section 504, by contrast, would not protect that interest,since children would be exposed to signal bleed of sexually explicit materialswhenever parents failed, for whatever reason, to take the affirmative stepsnecessary to obtain blocking.
We are not referring here to that presumably very small number of childrenwhose parents positively want their children to be exposed to sexually explicitprogramming. Even if we assume, arguendo, that the interests of those parentsshould prevail over the interests of society in protecting children fromindecent 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 Section505 or by a hypothetical enhanced Section 504, for under either they wouldobtain access to sexually explicit channels by subscribing to them.24 Thechildren of parents who fail to act as a result of inertia, indifference,or distraction, however, would be protected only by Section 505. The districtcourt gave no weight whatsoever to society's independent interest in protectingthose children when it ruled that a hypothetical enhanced version of Section504 would be an adequate alternative to Section 505.
Based on the court's own factual findings, there is no basis for concludingthat an application of the court's hypothetical, enhanced version of Section504 would not have at least the same effects; that is so because cable operatorsunder an enhanced Section 504 could be expected either to drop appellee'sprogramming altogether or to transmit appellee's programming only duringthe safe-harbor hours (that is, if time-channeling was also an option ina hypothetical, enhanced Section 504). Indeed, the same economic factorsthat now lead to time-channeling under Section 505 would lead to droppingof 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 costof distributing lockboxes to 3% of a cable system's customers would equalall 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 willingto amortize the cost of the lockboxes over five years, the number of lockboxesthat could be distributed would rise only to 6% of the subscriber base.Id. at 22a. In actuality, cable operators could be expected to drop (ortime-channel) sexually explicit channels long before the number of subscriberswho requested lockboxes reached the 3% to 6% range. As the district courtfound, "[e]conomic theory would suggest that profit-maximizing cableoperators would cease carriage of adult channels" before exhaustingall revenues from such channels; rather, they would take action when the"costs rose to such a point that the profit from adult channels wasless than the profit from channels unlikely to require blocking." Ibid.Therefore, a relatively minor boost in the number of subscribers seekinglockboxes would be sufficient to lead to dropping Playboy's programmingaltogether under an enhanced Section 504 (or time-channeling, if such anoption were included in an enhanced Section 504 as a means of compliance)-anda consequent effect on the availability of appellee's sexually explicitprogramming at least as great as that the district court found to occurunder Section 505.
A significant increase in the number of subscribers seeking lockboxes wouldinescapably follow if a truly effective notice requirement were added toSection 504. The district court itself found that the actual Section 504-withoutenhanced notice and without easy availability of blocking devices-had ledto 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 specificallyin order to provide each subscriber with genuine, easily understandablenotice of the problem of signal bleed and a quick and easy means to stopit through ready availability-via "a telephone call," id. at 37a-ofblocking devices. See id. at 36a-37a.26 Moreover, such notice would haveto be repeated on a regular basis (though the district court did not specifyhow often) on non-sexually explicit channels, and special notice would haveto be given whenever a cable operator changed the channel on which a sexuallyexplicit programming service was carried. Id. at 37a. If a genuinely effectivesystem of notice and easily available blocking were instituted and provedto be as effective as the district court evidently anticipated, the numberof subscribers requesting blocking could be expected to exceed the minimalnumber necessary to render carriage of the sexually explicit channels uneconomical.That is especially so in light of the fact that the various forms of noticecontemplated by the district court, including regular notice on the cableoperators' other channels, would themselves impose burdens, in the formof financial costs and interference with editorial discretion, on cableoperators.27
Indeed, the district court's enhanced version of Section 504 could wellresult in a greater limitation on the availability of appellee's programmingthan does Section 505. Section 504, as enacted by Congress, does not includea safe-harbor provision like Section 505. Accordingly, if Section 504 wereenhanced-as the district court envisioned-by adding requirements for noticeto subscribers of the problem of signal bleed and the easy availabilityof blocking devices, the increased costs that cable operators would haveto incur in affording notice and furnishing blocking devices might wellmake it uneconomical for them to carry appellee's programming at all. Thatwould amount to a greater limitation on the availability of appellee's speechthan the time-channeling that can be expected to result from Section 505.That consequence would be even more likely to result if Section 504 werealtered to provide not only for the district court's enhancements, but alsofor a safe-harbor like that in Section 505. At least some subscribers, giveneffective notice of the problem, would likely seek lockboxes even if theircable operators limited the availability of appellee's programming to thesafe-harbor hours. To avoid the costs of supplying those lockboxes, manycable operators would, once again, simply choose to drop appellee's programmingaltogether.
Although the district court made the key factual findings regarding theeconomic impact of subscriber requests for lockboxes on which our argumenthere relies, see J.S. App. 21a-22a, the court simply overlooked those findingswhen it analyzed the relative effects on the availability of appellee'sprogramming resulting from Section 505 and alternatives. To be sure, thedistrict court noted that "Section 504 * * * is less restrictive ofthe First Amendment rights of Playboy and its subscribers" than Section505 because it operates on a voluntary basis and permits cable operatorsto broadcast appellee's programming 24 hours per day. Id. at 34a. But thatfinding concerns the actual Section 504, as enacted by Congress and containingno notice provisions-a statute that the district court itself viewed asan inadequate alternative to Section 505. See J.S. App. 38a. Perhaps becauseno party had suggested that an enhanced Section 504 would be a less restrictivealternative and the parties' argument was therefore not directed to thatpoint, the district court never analyzed whether the enhanced version ofSection 504 that it had hypothesized would result in the same limitationon the availability of appellee's programming as Section 505. Had it doneso, its own factual findings would have led to the conclusion that Section504 would be at least as restrictive as Section 505. At the very least,the proposition that a fully effective notice requirement of the sort thedistrict court posited would not result in at least the same restrictionon speech as Section 505 has not been demonstrated with the clarity necessaryto invalidate an Act of Congress on least-restrictive-alternative grounds.
A. In an appeal to a court of appeals, the filing of a timely motion toalter 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 motionfor relief under Federal Rule of Civil Procedure 60(a) tolls the time withinwhich 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 becomeseffective 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 sucha motion is filed, "the case lacks finality." 11 Charles AlanWright et al., Federal Practice and Procedure § 2821, at 220 (2d ed.1995).
This Court's rule governing certiorari, Sup. Ct. R. 13.3, is similar toRule 4(a)(4) of the Federal Rules of Appellate Procedure in that it providesfor tolling of the time for filing a certiorari petition while a petitionfor rehearing is pending in the court of appeals. The Court's rules governingappeals, 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 anotice of appeal in such a case are "not free from doubt * * * becauseRule 18.1 does not contain the statement, in former appeal Rule 11.3 (andin current certiorari Rule 13.3), that 'if a petition for rehearing is timelyfiled by any party in the case, the time for filing the notice of appealfor all parties * * * runs from the date of the denial of rehearing or theentry of a subsequent judgment.'" Robert L. Stern et al., Supreme CourtPractice § 7.2(c), at 388 (7th ed. 1993). See also ibid. (noting thatit is "most unlikely" that this Court meant to abandon that rulesub silentio). Through caution in this uncertain area of the law, we fileda 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 motionswere pending before the district court did not deprive the district courtof jurisdiction to consider those motions. To begin with, Rule 60(a) itselfpermits a district court to correct clerical mistakes in a judgment whilean appeal is pending: "During the pendency of an appeal, such mistakesmay be so corrected before the appeal is docketed in the appellate court,and thereafter while the appeal is pending may be so corrected with leaveof the appellate court." On March 18, 1999, when the district courtdismissed the Rule 60(a) motion for lack of jurisdiction, this appeal hadnot yet been docketed in this Court. Accordingly, the district court hadjurisdiction to correct the mistake "just as if the case were stillpending in the district court." 11 Charles Alan Wright et al., FederalPractice and Procedure § 2856, at 251 (2d ed. 1995).29
The filing of the notice of appeal also did not divest the district courtof jurisdiction to rule on the Rule 59(e) motion that was already pendingwhen the notice of appeal was filed. This Court's Rule 18.1, which governsthe commencement of appeals to this Court, is comparable to Rule 4 of theFederal Rules of Appellate Procedure as it existed before the 1979 amendments.Interpreting the pre-1979 Rule 4, this Court concluded in Griggs v. ProvidentConsumer Discount Co., 459 U.S. 56, 58-59 (1982) (per curiam), that whilea district court lacked jurisdiction to entertain a Rule 59(e) motion aftera notice of appeal had been filed, "if the timing was reversed-if thenotice of appeal was filed after the motion to vacate, alter, or amend thejudgment- * * * the district court retained jurisdiction to decide the motion,but the notice of appeal was nonetheless considered adequate for purposesof beginning the appeal process." The reason this "theoreticalinconsistency" was permitted under the pre-1979 rule was that therewas little danger that a court of appeals and a district court would beacting simultaneously on the same judgment, since a district court at thattime did not automatically notify the court of appeals that a notice ofappeal had been filed. Id. at 59.30
A direct appeal to this Court under Rule 18.1 functions similarly. Afterthe notice of appeal is filed, the appellant is given 60 days within whichto file its jurisdictional statement. Until the matter is docketed in thisCourt, there is no chance that the district court would be acting on a judgmentat the same time as this Court. Because the jurisdictional statement inthis case had not been filed at the time the district court dismissed theRule 59(e) motion, that dismissal was improper and should be reversed.31A litigant who wants to file a post-judgment motion should not have to riskforfeiting 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
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