Regan v. Time, Inc, No. 82-729

CourtUnited States Supreme Court
Writing for the CourtJustice 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
Citation468 U.S. 641,104 S.Ct. 3262,82 L.Ed.2d 487
Decision Date03 July 1984
Docket NumberNo. 82-729
PartiesDonald T. REGAN, Secretary of the Treasury, et al. v. TIME, INC

468 U.S. 641
104 S.Ct. 3262
82 L.Ed.2d 487
Donald T. REGAN, Secretary of the Treasury, et al.

v.

TIME, INC.

No. 82-729.

Supreme Court of the United States

Argued Nov. 9, 1983.
Decided July 3, 1984.
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 (1982), 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

Page 642

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 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.

Page 643

Elliott Schulder, Washington, D.C., for appellants.

Stuart W. Gold, New York City, for appellee.

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, 58 S.Ct. 353, 355-356, 82 L.Ed. 413 (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

Page 644

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 amending 2 18 U.S.C. § 504 so as to permit the "printing, publishing, or importation . . . of illustrations of . . . any . . . obligation or other security of 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 illustrations 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), U.S.Code Cong. & Admin.News 1958, pp. 5268, 5272, 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 illustra-

Page 645

tions 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,

Page 646

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 who prepared the cover and requested an interview with a member of Time's management. Ten days later, Time initiated the present action against the Secretary of the Treasury, the Director of the Secret Service, and others,4 seeking a declaratory judgment that §§ 474, ¶ 6, and 504 were unconstitutional on their face and as applied to Time, as well as an injunction preventing the defendants from enforcing or threatening to enforce the statutes.

On cross-motions for summary judgment, the District Court ruled in favor of Time. 539 F.Supp. 1371 (SDNY 1982). The court first determined that Time's use of the illustrations was speech protected by the First Amendment. It then held that § 474 could not by itself pass constitutional

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  • Board of Trustees of State University of New York v. Fox, No. 87-2013
    • United States
    • United States Supreme Court
    • June 29, 1989
    ...alternatives, see, e.g., Community for Creative Non-Violence, supra, 468 U.S., at 299, 104 S.Ct., at 3072; Regan v. Time, Inc., 468 U.S. 641, 657, 104 S.Ct. 3262, 3271, 82 L.Ed.2d 487 (1984) (plurality opinion) ("The less-restrictive-alternative analysis . . . has never been a part of the i......
  • State v. United States Dep't of Health, Nos. 11–11021
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    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
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    ...leaving the remainder intact.” Id. at 329, 126 S.Ct. at 967–68. “[T]he presumption is in favor of severability.” Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984). In the overwhelming majority of cases, the Supreme Court has opted to sever the constitutiona......
  • Finzer v. Barry, No. 84-5327
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
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    ...is the relevant test. Instead, they point to language in Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and Regan v. Time, 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984), which might seem to suggest a total ban on content-based restrictions of any sort. Were appellants corr......
  • U.S. v. Lee, No. 90-5264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 7, 1993
    ...Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Regan v. Time, Inc., 468 U.S. 641, 648-49, 104 S.Ct. 3262, 3266-67, 82 L.Ed.2d 487 (1984). When a law is content-based, we must subject the state's interest "to 'the most ex......
  • Request a trial to view additional results
400 cases
  • Board of Trustees of State University of New York v. Fox, No. 87-2013
    • United States
    • United States Supreme Court
    • June 29, 1989
    ...alternatives, see, e.g., Community for Creative Non-Violence, supra, 468 U.S., at 299, 104 S.Ct., at 3072; Regan v. Time, Inc., 468 U.S. 641, 657, 104 S.Ct. 3262, 3271, 82 L.Ed.2d 487 (1984) (plurality opinion) ("The less-restrictive-alternative analysis . . . has never been a part of the i......
  • State v. United States Dep't of Health, Nos. 11–11021
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 12, 2011
    ...leaving the remainder intact.” Id. at 329, 126 S.Ct. at 967–68. “[T]he presumption is in favor of severability.” Regan v. Time, Inc., 468 U.S. 641, 653, 104 S.Ct. 3262, 3269, 82 L.Ed.2d 487 (1984). In the overwhelming majority of cases, the Supreme Court has opted to sever the constitutiona......
  • Finzer v. Barry, No. 84-5327
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 9, 1986
    ...is the relevant test. Instead, they point to language in Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), and Regan v. Time, 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984), which might seem to suggest a total ban on content-based restrictions of any sort. Were appellants corr......
  • U.S. v. Lee, No. 90-5264
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • October 7, 1993
    ...Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." Regan v. Time, Inc., 468 U.S. 641, 648-49, 104 S.Ct. 3262, 3266-67, 82 L.Ed.2d 487 (1984). When a law is content-based, we must subject the state's interest "to 'the most ex......
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3 books & journal articles
  • STARE DECISIS AND INTERSYSTEMIC ADJUDICATION.
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    • Notre Dame Law Review Vol. 97 Nbr. 3, March 2022
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    ...it is the duty of this court to so declare, and to maintain the act in so far as it is valid." (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion))). Epistemic constraints might also explain why the lower federal courts rely less on the canon of constitutional avoidan......
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