468 U.S. 641 (1984), 82-729, Regan v. Time, Inc.

Docket Nº:No. 82-729
Citation:468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487
Party Name:Regan v. Time, Inc.
Case Date:July 03, 1984
Court:United States Supreme Court
 
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468 U.S. 641 (1984)

104 S.Ct. 3262, 82 L.Ed.2d 487

Regan

v.

Time, Inc.

No. 82-729

United States Supreme Court

July 3, 1984

Argued November 9, 1983

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

SOUTHERN DISTRICT OF NEW YORK

Syllabus

Title 18 U.S.C. § 474 makes it a crime to photograph any obligation or other security of the United States. But 18 U.S.C. § 504(1) permits the printing or publishing of illustrations of any such obligation or other security

for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums

if the illustrations are in black and white and less than three-fourths or more than one and one-half the size of the original and if the negative and plates used in making the illustrations are destroyed after their final authorized use. Appellee magazine publisher, after being warned that it was violating §§ 474 and 504 by publishing a photographic color reproduction of United States currency on the cover of one of its magazines, brought an action in Federal District Court seeking a declaratory judgment that the statutes were unconstitutional on their face and as applied to appellee, and an injunction preventing their enforcement. The District Court, ruling in appellee's favor, held that the statutes violated the First Amendment.

Held: The judgment is affirmed in part and reversed in part.

539 F.Supp. 1371, affirmed in part and reversed in part.

JUSTICE WHITE delivered the opinion of the Court with respect to Part II-A, concluding that § 504's purpose requirement is unconstitutional. It cannot be sustained as a valid time, place, and manner regulation because it discriminates on the basis of content in violation of the First Amendment. A determination as to the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers. Under § 504, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message in one is newsworthy or educational, but the message in the other is not. Pp. 648-649.

JUSTICE WHITE, joined by THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR, delivered an opinion with respect to Parts II-B, II-C, and II-D, concluding that:

1. The issue of the validity of § 504's publication requirement on vagueness or overbreadth grounds cannot properly be addressed. There is no evidence that appellee has ever, or will ever, have difficulty

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meeting that requirement, and therefore its validity is of only academic interest to appellee. And where it is not clear from the record that the requirement will be used to prevent a person from utilizing an otherwise legitimate photograph, appellee publisher cannot claim that the statute is overbroad because it unconstitutionally precludes nonpublishers from making reproductions of currency even though they meet the statute's other requirements. Pp. 649-652.

2. The fact that § 504's purpose requirement is unconstitutional does not automatically render the statute's entire regulatory scheme invalid. Whether an unconstitutional provision is severable from the remainder of a statute is largely a question of legislative intent, but the presumption is in favor of severability. Here, it appears that the policies Congress sought to advance by enacting § 504 -- to ease the administrative burden without hindering the Government's efforts to enforce the counterfeiting laws -- can be effectuated even though the purpose requirement is unenforceable. Pp. 652-655.

3. Section 504's size and color requirements are valid as reasonable manner [104 S.Ct. 3264] regulations that can constitutionally be imposed on those wishing to publish photographic reproductions of currency. Compliance with these requirements does not prevent appellee from expressing any view on any subject or from using illustrations of currency in expressing these views. Moreover, the Government does not need to evaluate the nature of the message imparted in order to enforce the requirements, since they restrict only the manner in which the illustrations can be presented. Such requirements also effectively serve the Government's compelling interest in preventing counterfeiting. Because the provisions of § 474 are of real concern only when § 504's requirements are not complied with, § 474 is also constitutional. Pp. 655-659.

JUSTICE STEVENS, concluding that § 504's purpose requirement is constitutional, also concluded that the statute's size and color requirements are permissible methods of minimizing the risk of fraud as well as counterfeiting, and can have only a minimal impact on appellee's ability to communicate effectively. Pp. 697-704.

WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, in which BURGER, C.J., and BRENNAN, MARSHALL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion with respect to Parts II-B, II-C, and II-D, in which BURGER, C.J., and REHNQUIST and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 659. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 691. STEVENS,

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J., filed an opinion concurring in the judgment in part and dissenting in part,post, p. 692.

WHITE, J., lead opinion

JUSTICE WHITE announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, and an opinion with respect to Parts II-B, II-C, and II-D, in which THE CHIEF JUSTICE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join.

The Constitution expressly empowers Congress to "provide for the Punishment of counterfeiting the Securities and current Coin of the United States." U.S.Const., Art. I, § 8, cl. 6. Pursuant to that authority, Congress enacted two statutes that together restrict the use of photographic reproductions of currency. 18 U.S.C. § 474, ¶ 6, and 18 U.S.C. § 504. The Federal District Court for the Southern District of New York held that those two statutes violate the First Amendment. Appellants ask us to overturn that judgment.

I

Title 18 U.S.C. § 474 was enacted during the Civil War to combat the surge in counterfeiting caused by the great increase in Government obligations issued to fund the war and the unsettled economic conditions of the time. See United States v. Raynor, 302 U.S. 540, 544-546 (1938). The sixth paragraph of that section provides criminal liability for anyone who

prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression

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in the likeness of any . . . obligation or other security [of the United States] or any part thereof. . . .1

This complete ban on the use of photographic reproductions of currency remained without statutory exception for almost a century. However, during that time, the Treasury Department developed a practice of granting special permission to those who wished to use certain illustrations of paper money for legitimate purposes. In 1958, Congress acted to codify that practice by amending2 18 U.S.C. § 504 so as to permit the

printing, publishing, or importation . . . of illustrations of . . . any . . . obligation or other security of [104 S.Ct. 3265] the United States . . . for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums. . . .

18 U.S.C. § 504 (1). In order to "prevent any possibility of the illustration's being used as an instrument of fraud," S.Rep. No. 2446, 85th Cong., 2d Sess., 5 (1958) (hereafter S.Rep. No. 2446); H.R.Rep. No. 1709, 85th Cong., 2d Sess., 3 (1958) (hereafter H.R.Rep. No. 1709), and in an effort to avoid creating conditions which would "facilitate counterfeiting," S.Rep. No. 2446, at 5-6; H.R.Rep. No. 1709, at 3, Congress also adopted three restrictions that the Treasury Department normally imposed on those who were granted special permission to create and use such photographs. First, the illustrations

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had to be in black and white. Second, they had to be undersized or oversized, i.e., less than three-fourths or more than one and one-half the size of the original. And third, the negative and plates used in making the illustrations had to be destroyed after their final authorized use.3 Therefore, under the present statutory scheme, a person may make photographic reproductions of currency without risking criminal liability if the reproductions meet the purpose (numismatic,

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philatelic, educational, historical, or newsworthy), publication (articles, books, journals, newspapers, or albums), color (black and white), and size (less than three-fourths or more than one and one-half of the size of the original) requirements of § 504(1), and if the negatives and plates are destroyed immediately after use.

Over the course of the past two decades, Time, Inc., the publisher of several popular magazines, has been advised by Secret Service agents that particular photographic reproductions of currency appearing in its magazines violated the provisions of §§ 474 and 504. Despite the warnings, Time continued to use such reproductions. When the front cover of the February 16, 1981, issue of Sports Illustrated carried a photographic color reproduction of $100 bills pouring into a basketball hoop, a Secret Service agent informed Time's legal department that the illustration violated federal law, and that it would be necessary for the Service to seize all plates and materials used in connection with the production of the cover. The agent also asked for the names and addresses of all the printers...

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