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Dec 3, 2013 (5 years and 5 months ago)


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Excerpts from

the District Court Opinion


, INC.,



Donald T.
, Secretary of the Treasury, H. Stuart Knight, Director, United

States Secret Service, William French Smith, Attorney General of the United

States; James R. D'Amelio,
Special Agent in Charge, New York Field Office,

United States Secret Service, John S. Martin, Jr., United States Attorney for

the Southern District of New York, Defendants.

United States District Court,

S. D. New York

539 F.Supp. 1371

No. 81 Civ. 3218 (

June 4, 1982.




.... II.

The United States Constitution grants Congress broad power to legislate to "coin Money,
regulate the Value thereof, and of foreign Coin, and fix the Standard of Weight
s and Measures,"
art. I, s 8, cl. 5, and to "provide for the Punishment of

counterfeiting the Securities and
current Coin of the United States." Art. I, s 8, cl. 6. The power to coin money has been long
recognized as carrying the correlative power
to protect it.
United States v. Marigold, 50 U.S.
560, 9 How. 560 (1850)
. The Marigold Court upheld an Act of Congress, 4 Stat. at Large 121,
ch. 65, providing for the prosecution of those involved in counterfeiting any coin in the
resemblance of United
States currency.

Chapter 25 of Title 18 of the United States Code contains those laws which prohibit the
alteration, counterfeiting or forgery of the coins, obligations and securities of the United States
Government and of foreign governments, and which
provide criminal sanctions with respect to
such activities.

This case involves the impact of two of the provisions of Chapter 25
the sixth paragraph of
, and
s 504

18 U.S.C. s 474

18 U.S.C. s 474 (1976)

is one of 39 sections in Chapter 25,
and is captioned "Plates or stones
for counterfeiting obligations or securities." Paragraphs one through five and paragraph seven
s 474

criminalize the possession, use, importation, sale and forgery of materials which can
actually be used for counterfe
iting purposes, such as plates, stones and paper. The sixth
paragraph of
s 474
, one of the provisions challenged herein, makes it a crime to create a
photograph, print or impression of "any obligation or other security made or executed, in whole
or in par
t, after the similitude of any obligation or other security issued under the authority of the
United States":

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....Whoever prints, photographs, or in any other manner makes or executes any engraving,
photograph, print, or impression in the likeness of any
such obligation or other security, or any
part thereof, or sells any such engraving, photograph, print, or impression, except to the United
States, or brings into the United States, any such engraving, photograph, print, or impression,
except by direction
of some proper officer of the United States....Shall be fined not more than
$5,000 or imprisoned not more than fifteen years, or both.....

18 U.S.C. s 504

18 U.S.C. s 504 (1976)
, which is the second provision challenged in this action,

ubstantially amended in 1958 to provide certain statutory exemptions to the flat ban of
s 474
Notwithstanding the prohibitions contained in the sixth paragraph of
s 474
s 504

permits the
printing or publishing "of illustrations" of United States currenc
y "for philatelic, numismatic,
educational, historical, or newsworthy purposes in articles, books, journals, newspapers or
albums." Such illustrations must be "in black and white", and they must be "of a size less than
fourths or more than one and o
half, in linear dimension," of the currency illustrated.
Excepted from these requirements are motion
picture films, microfilms or slides for screen
projection or telecasting.

....The legislative history indicates that Congress intended in
s 504

y to institutionalize the
practices of the Treasury Department....:


The material facts, summarized in this section, are not in dispute.

Illustrations of money are used by plaintiff as symbols. Within the past fifteen years, plaintiff's

have at various times utilized illustrations, photographic or otherwise, of United
States currency to symbolize the toll of inflation, to represent the economic issues at stake in a
presidential election, to comment upon political scandals, and to convey
information or
commentary upon matters ranging from the place of the American dollar in international
commercial markets to point
shaving scandals in amateur basketball. On many of these
occasions some representative of the Treasury Department has warned
plaintiff that specific
illustrations violated Chapter 25 of Title 18.


The illustrations depict money in undersize or oversize, and they distort it. Since they
appear on only one side of a printed page, the illustrations show at most only one side

of any
currency depicted. ....


The sixth paragraph of
s 474

certainly reaches all and any likenesses of United States currency.

By its terms it prohibits the printing of any "engraving, photograph, print, or impression" in the
likeness of any porti
on of any specimen of United States currency. Thus it does not matter
whether the likeness is good or bad, true to size or distorted, faithful to the true color or
discolored, printed on paper similar to currency or impressed on waxpaper. Any likeness of
part of United States currency, whether or not capable of deceiving anyone, or whether or not
intended to express an abstract idea, is banned by the language of the provision. The print of a
drawing of the corner of a ten dollar bill is prohibited. A

button showing the pyramid on the back
of a one dollar bill is prohibited. A 3

by 2
foot blow
up of a twenty dollar bill with
substituted numbers and language is prohibited. A painting of the back of a one thousand dollar
bill covering the wa
ll of a barn is prohibited. A print of a fingernail charcoal sketch of the name of

the United States of America as it appears on a twenty dollar bill is prohibited. An engraving of
the legend, "In God We Trust," found on the back of a ten dollar bill, is

prohibited. A plastic

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impression of a dollar bill is prohibited.

The sixth paragraph of
s 474

does not by its terms require intent to defraud, to deceive, to
counterfeit. One violates the law simply by creating, executing, selling or bringing into the

States any kind of likeness of United States currency or any part thereof, whether or not the
likeness is such that it might assist a counterfeiter in the reproduction of fraudulent notes or
deceive a person into accepting such notes as legal tende
r for a debt.

Section 504

provides exemptions from the total ban imposed by the sixth paragraph of
s 474
. It
permits the printing or publishing of "illustrations" of United States currency which meet all of the
following requirements: (a) they must be i
n black and white; (b) they must be "of a size less than
fourths or more than one and one
half, in linear dimension, of each part of any matter so
illustrated"; (c) they must appear "in articles, books, journals, newspapers, or albums"; and (d)
must be for "... philatelic, numismatic, educational, historical, or newsworthy purposes." The
word "illustration" does not appear in
s 474
. Neither
s 504

nor any other provision of applicable
law contains any definition of "illustration" or of "philateli
c, numismatic, educational, historical, or
newsworthy purposes."

The Treasury Department, which through the Secret Service is primarily responsible for the
enforcement of the counterfeiting laws, requires in addition that an illustration otherwise
ed by
s 504

"be accompanied by numismatic, educational, historical or newsworthy
information relating directly to the item that is illustrated." The Treasury Department has also
taken the position that
s 504

does not exempt illustrations which are "used p

decorative or eye
catching purposes."....


As a threshold matter, I consider 1) whether plaintiff's use of illustrations of money in various
contexts constitutes in its content speech which is protected by the First Amendment, and 2) the
nature of

the statutory provisions which are challenged.....

1) Plaintiff's illustrations of money as protected speech.

The illustrations reviewed in the earlier portion of this opinion make it clear that plaintiff used
illustrations of money symbo
to dramatize or illustrate a set of facts, an existing condition, a
moral crisis, a course of conduct. "A picture," it has been said, "is worth a thousand words."
Certainly the use by plaintiff of illustrations of money in connection with its vari
ous magazine
articles gave emphasis, thrust, and even poignancy to the messages of the articles to which the
illustrations pertained. A dollar bill worth seventy
three cents, with George Washington shedding
a tear, constituted graphic editorial commentary

on the ravages of inflation; a hoop and net
stuffed to overflowing with hundred dollar bills was a powerful statement of the impact of
gambling on the sport of basketball. The image of money is a powerful, expressive symbol, of
significant value to membe
rs of the press, including plaintiff, in communicating information and
ideas on a wide range of issues of vital public interest. It is, to state the obvious, a particularly
effective symbol for the communication of ideas about money itself. The economy,
money supply, foreign trade imbalances, interest rates, and national deficit have all been part of
the stuff of analytical and interpretive news reporting in recent years
reporting which has driven
home to the individual citizen the impact of th
ese matters on his or her daily life. To the extent
that illustrations of money as symbols, used in connection with newspaper and magazine
reporting on such matters, have explicated or made more comprehensible the very complicated
concepts being treated,
to that extent the public has been well served.

Since the use of the symbol of money by plaintiff has been, and will continue to be, intimately
related to the expression and communication of ideas, I find that the publication or printing of

of United States currency by plaintiff is protected speech under the First

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Amendment. It does not entail expression which is deemed by the nature of its content to be
subject to regulation in the interests of the public weal. Publishing illustrations of

currency does
not involve speech characterized by the Supreme Court as posing a "clear and present danger,"
Schenck v. United States, 249 U.S. 47 (1919)
, as "fighting words,"
Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942)
, as "defamation,"
New York Time
s v. Sullivan, 376 U.S. 254
, as "obscenity,"
Miller v. California, 413 U.S. 15 (1973)
, as "libel,"
Gertz v. Robert Welch,
Inc., 418 U.S. 323 (1974)
, or as "commercial speech,"
Virginia State Board of Pharmacy v.
Virginia Citizens Consumer Council, 4
25 U.S. 748 (1976)

Thus absent constitutionally permissible overriding considerations, plaintiff has a First
Amendment right to publish or print illustrations of United States currency.....


The determination of the nature of plaintiff's speech and

of the challenged statutes aids in
ascertaining the applicable legal principles developed over the years in First Amendment law. If
speech is protected by the First Amendment, a statute which impinges upon that speech must
be narrowly drawn so as to be an

efficacious means of achieving permissible objectives of the
government. See, e.g.,
Buckley v. Valeo, 424 U.S. 1 (1976)

(per curiam);
Gooding v. Wilson,
405 U.S. 518 (1972)
Shelton v. Tucker, 364

U.S. 479 (1960)
Cantwell v. Connecticut, 310 U.S.
296 (1
. The statute must be narrowly aimed at the permissible objectives and it must to the
extent possible avoid impinging on protected speech.
Grayned v. City of Rockford, 408 U.S. 104



Section 474

As noted in Section VII,

supra, in proscribing the use of illustrations of money, as symbols or
otherwise, the sixth paragraph of
s 474

constitutes subject
matter regulation. Subject
regulations encounter great difficulty passing constitutional muster in our jurisprudence
, and
regulations based on subject matter of speech have been approved only in narrow
circumstances. Generally, "the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or its co

The sixth paragraph of
s 474

does impinge on plaintiff's freedom of speech, since plaintiff has a
protected right to use illustrations of money as symbols in connection with its articles (See
Section VII, supra ), and
s 474

prohibits such use.

Thus the question, as posed by Justice
Powell in Consolidated Edison, is whether that prohibition is "a narrowly tailored means of
serving a compelling state interest."
447 U.S. at 535, 100 S.Ct. at 2332.

This court has an
overriding obligation "to asse
ss the substantiality of the justification(s) offered" and to ensure
that the regulation promotes legitimate governmental ends with the minimal intrusion on First
Amendment freedoms.
Village of Schaumburg v. Citizens for a Better Environment, supra, 444
.S. at 636;

Schad v. Borough of Mt. Ephraim, supra, 452 U.S. at 69.

The justifications offered by defendants for the prohibitions contained in the sixth paragraph of

are basically twofold. The first justification is that the prohibitions prevent co
The second justification is that the prohibitions protect "the value (of) and respect for instruments
issued as the official obligations and securities of the United States."

The government has a compelling interest in preventing counterfei
ting and thus maintaining the
integrity of the nation's currency system. Is the sixth paragraph of
s 474
, however, a narrowly
tailored means of preventing counterfeiting of United States currency? It casts its net over any
and all likenesses of such curr
ency whether or not any given likeness has the capacity to
deceive or to act as a vehicle for counterfeiting. Thus it is overbroad.
Thornhill v. Alabama,

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supra, 310 U.S. at 97.
Where protected speech, namely the publication of illustrations of United
es currency, is involved, the law must be drawn with "narrow specificity" so as to avoid any
unnecessary infringement on that speech.
NAACP v. Button, supra, 371 U.S. at 433

That requirement is not satisfied by
s 474
's proscription of all likenesses.
Neither the
illustrations of money used by plaintiff nor the plates used to print those illustrations can be used
to counterfeit money, or as counterfeit money.

To criminalize illustrations such as those
employed by plaintiff that have no utility fo
r fraud or forgery and that cannot be used for
counterfeiting, but which do serve as vehicles for artistic or journalistic expression, violates the
First Amendment by interfering unduly with protected speech. There are less intrusive ways to
combat counte
rfeiting without totally removing illustrations of money from the national discourse.


Plaintiff claims, and defendant denies, that the illustrations cannot be used for
counterfeiting or as counterfeit currency. Plaintiff has submitted affidavits to
the effect that
"the materials used to produce four
color offset magazine covers showing usually distorted
illustrations of currency can be of little value to someone attempting to counterfeit a
engraved, two
sided dollar bill." (See Affidavit of Hen
ry A. Grunwald). Common sense
does not permit a contrary conclusion. Defendants do not seriously contend otherwise....

Defendants' second justification for the
s 474

that they protect the value of and
respect for the official obligations

of the United States
is quite simply a constitutionally
impermissible one. When this justification is analyzed, it can only mean that
s 474

bans the use
of illustrations of money because of the ideas such illustrations may symbolically represent. This
uns counter to the constitutional doctrine that the government may neither prohibit nor prescribe
the form or content of individual expression, absent a compelling state interest.
Department of the City of Chicago v. Mosley, supra, 408 U.S. at 95,

The government cannot
compel or prohibit respect for any symbol or idea in this country.
Stromberg v. California,
283 U.S. 359 (1931)

(state prohibition of display of red flag struck down);
West Virginia State
Board of Education v. Barnette, 319

U.S. 624 (1943)

(mandatory salute of the American flag
Street v. New York, 394 U.S. 576 (1969)

(conviction for "disrespectful" language
about the flag set aside);
Schacht v. United States, 398 U.S. 58 (1970)

(punishment for theatrical

use of

a uniform which was critical of the Army invalidated). Neither plaintiff nor any citizen can
be compelled by the government to pay respect to the dollar. The sixth paragraph of
s 474

cannot be justified as protecting, by restraining speech, "the value (
of) and respect for" currency
issued by the government.


This second justification so clearly presents an impermissible state interest that it is
not necessary to determine, with respect to it, whether a less intrusive approach would be

.... 2)
Section 504

Although the prohibitions in
s 474

do not withstand constitutional scrutiny, it is necessary to
s 504
, since if its provisions permitted what
s 474

prohibits, a constitutional
confrontation would be avoided.

Insofar as plain
tiff's illustrations are concerned,
Section 504

leaves in place the
s 474

proscriptions, and in the course of various of the warnings with respect to plaintiff's violations of
law, government representatives have invoked
s 504

(see pp. 1377
1379, supra ).

Be that as it
s 504

presents troublesome constitutional problems of its own.


Section 504
's concern with "philatelic, numismatic, educational, historical, or
newsworthy" purposes is constitutionally impermissible. Governmental action that
speech on the basis of its subject matter " 'slip(s) from the neutrality of time, place, and
circumstance into a concern about content.' "
Police Department of the City of Chicago v.

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Mosley, supra, 408 U.S. at 99,

quoting Kalven, The Concept of
the Public Forum: Cox v.
Louisiana, 1965 Sup.Ct.Rev. 1, 29. In enforcing
s 504
, the government decides whether the
purpose of the illustration is "philatelic, numismatic, educational, historical or newsworthy" and
whether the forum in which it appears is
indeed an article, a book, a journal, a newspaper or an
album. Such decisions are based on content or subject matter. Succinctly put,
s 504

judgments about the nature and quality of the message contained in the illustration, about the
nature and

quality of the article to which the illustration relates, and about the nature of the forum
containing the illustration, types of judgment the First Amendment prohibits the government from
Cohen v. California, 403 U.S. 15, 24 (1971)
; Thornhill v.

Alabama, supra.

Village of Schaumburg v. Citizens for a Better Environment...demands a tight nexus between
the requirements of a statute and the promotion of the governmental goals, especially where a
constitutional right is implicated.
Id. at 639.
h a nexus is missing here. There is no
relationship between the distinctions among the purposes and forums, and the evils that the
statute purportedly targets. Will an illustration in a numismatic journal be any less susceptible to
forgery than one appear
ing in Playboy? Will a newsworthy illustration of money in a book be any
less susceptible to forgery than a non
newsworthy item? Indeed, the newsworthiness of an
illustration has no bearing on its capacity (or lack thereof) to deceive a person or to faci
litate a
criminal's attempt at forgery. Neither the purpose to which an illustration is put nor the forum in
which it appears has any relation to the prevention of counterfeiting. The federal statutory
scheme evidenced in
s 504

is insufficiently

ated to the governmental interests it seeks
to promote to justify intrusion on protected speech.

....As an exception to the absolute prohibitions of
s 474
, the lines drawn by
s 504

do not directly
promote the government's interest in preventing counterfei
ting through the least restrictive
means, and they intrude unnecessarily upon plaintiff's freedom of speech.
Shelton v. Tucker,
supra, 364 U.S. at 488. [FN22]


There is no material issue of fact. I find that the sixth paragraph of
18 U.S.C. s
, and
U.S.C. s 504
, are unconstitutional on their face and as applied to plaintiff. Plaintiff is entitled to
judgment as a matter of law on its motion for summary judgment. Defendant's cross
motion for
summary judgment is denied. A declaratory jud
gment to that effect shall be entered.

Submit judgment.


Excerpts from

the U.S. Supreme Court


on appeal


Donald T.
, Secretary of the Treasury, et al.



No. 82

468 U.S. 641

Supreme Court

of the United States

Argued Nov. 9, 1983.

Decided July 3, 1984.

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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
C, and II
D, in which THE
HIEF 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
hat authority, Congress enacted two statutes that together restrict the use of photographic
reproductions of currency.
18 U.S.C.


, and
18 U.S.C.

. 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.....


The District Court correctly observed that "[b]ecause of the interrelationship of Sections 474 and
504, the ultimate constitutional analysis must be directed to the impact of

these sections in
539 F.Supp., at 1385.

The exceptions outlined in

504 apply "[n]otwithstanding any
other provision of this chapter," including

474. The criminal liability imposed by

474 therefore
applies only when a photographic reproducti
on fails to meet the requirements imposed by

Thus, if the restrictions imposed by


sufficiently accommodate Time's First
Amendment interests, both statutes must be upheld. We accordingly begin our inquiry by
focusing on the restrictions im
posed by



Appellants assert that the restrictions imposed by

504 are valid as reasonable time, place,
and manner regulations. In order to be constitutional, a time, place, and manner regulation must
meet three requirements. First, it " 'may not

be based upon either the content or subject matter
of speech.' "
Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640, 648

Consolidated Edison Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 536
). Secon
d, it must " 'serve a significant governmental interest.' "
452 U.S., at 649

Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)
And third, it must " 'leave open ample alternative channels for communicat
ion of the information.'
452 U.S., at 648

Virginia Pharmacy Board, supra, 425 U.S., at 771.

District Court concluded that the purpose requirement of

504 could not be sustained as a valid
time, place, and manner regulation because it

discriminates on the basis of content. We agree.

A determination concerning the newsworthiness or educational value of a photograph cannot
help but be based on the content of the photograph and the message it delivers....


The District Court als
o concluded on vagueness and other grounds that limiting the exemption
from the

474 ban to likenesses of currency contained in "publications" was itself invalid. We do
not address that issue, however, because there is no evidence or suggestion that Time,

publisher of magazines, has ever, or will ever, have any difficulty in meeting that requirement.
The validity of the publication

requirement, standing alone, is therefore of only academic
interest to Time. This Court, as a matter of both constituti
onal limitation and prudential restraint,
does not sit to resolve issues that are of only passing concern to the parties.....


The District Court concluded that because the purpose and publication requirements were

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unconstitutional, the entire reg
ulatory scheme outlined in

504 was invalid. This was error. First,
as noted in Part II
B, the validity of the publication requirement is not an issue that can properly
be addressed in this case. More importantly, even if both requirements were unconstitu
tional, it
does not automatically follow that the entire statute must fail.

In exercising its power to review the constitutionality of a legislative Act, a federal court should
act cautiously. A ruling of unconstitutionality frustrates the intent of the

elected representatives of
the people. Therefore, a court should refrain from invalidating more of the statute than is
necessary. As this Court has observed, "whenever an act of Congress contains unobjectionable
provisions separable from those found to be

unconstitutional, it is the duty of this court to so
declare, and to maintain the act in so far as it is valid."
El Paso & Northeastern R. Co. v.
Gutierrez, 215 U.S. 87, 96 (1909)
. Thus, this Court has upheld the constitutionality of some
provisions o
f a statute even though other provisions of the same statute were unconstitutional.
Buckley v. Valeo, 424 U.S. 1, 108 (1976)
United States v. Jackson, 390 U.S. 570, 585
El Paso & Northeastern R. Co., supra, 215 U.S., at 96.

See also
Griffin v.

403 U.S. 88, 104, (1971)
. For the same reasons, we have often refused to resolve the
constitutionality of a particular provision of a statute when the constitutionality of a separate,
controlling provision has been upheld.
Champlin Refining
Co. v. Corporation Comm'n of
Oklahoma, 286 U.S. 210, 234
235 (1932)
Southwestern Oil Co. v. Texas, 217 U.S. 114,
121 (1910)
Field v. Clark, 143 U.S. 649, 695
696 (1892)
. Before invalidating the entire
statute, we should therefore determine whether th
e remaining provisions of

504 can survive in
the absence of the purpose requirement.

Whether an unconstitutional provision is severable from the remainder of the statute in which it
appears is largely a question of legislative intent, but the presumpti
on is in favor of severability. "
'Unless it is evident that the Legislature would not have enacted those provisions which are
within its power, independently of that which is not, the invalid part may be dropped if what is left
is fully operative as a law
.' "
Buckley v. Valeo, supra, 424 U.S., at 108

Refining Co. v. Corporation Comm'n of Oklahoma, supra, 286 U.S., at 234).

States v. Jackson, supra, 390 U.S., at 585.

Utilizing this standard, we are quite sure that the
es Congress sought to advance by enacting

504 can be effectuated even though the
purpose requirement is unenforceable.....



In considering the validity of the color and size limitations, we once again begin with appellants'
contention that

the requirements are sustainable as reasonable time, place, and manner
regulations. Unlike the purpose requirement, the

size and color limitations do not
discriminate on the basis of content. Compliance with the color and size requirements does not
revent Time from expressing any view on any subject or from using illustrations of currency in
expressing those views. More importantly, the Government does not need to evaluate the nature
of the message being imparted in order to enforce the color and siz
e limitations. Those
limitations restrict only the manner in which the illustrations can be presented. They are thus
similar to the decibel level restrictions upheld by this Court in
Kovacs v. Cooper, 336 U.S. 77
, and the size and height limitations

on outdoor signs upheld by other courts,
Baldwin v.
Redwood City, 540 F.2d 1360, 1368
1369 (CA9 1976)
, sub nom.
Leipzig v. Baldwin, 431 U.S.
913 (1977)
Temple Baptist Church, Inc. v. City of Albuquerque, 98 N.M. 138, 146, 646 P.2d
565, 573 (1982)
v. Village of Burr Ridge, 111 Ill.App.3d 461, 464
466, 67 Ill.Dec. 190,
194, 444 N.E.2d 229, 232
233 (1982)
. Therefore, the size and color limitationspass the first
of the three requirements of a valid time, place, and manner regulation.

The size an
d color limitations also meet the second requirement in that they effectively serve
the Government's concededly compelling interest in preventing counterfeiting. Time contends
that although the color restriction serves the Government's interest in preventi
ng counterfeiting, it

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is nonetheless invalid because it is not narrow enough. Time asserts that the color restriction
applies to an illustration of currency regardless of its capacity to deceive and is thus broader
than is necessary to achieve the Governme
nt's interest in preventing counterfeiting. However,
Time places too narrow a construction on the Government's interest and too heavy a burden on
those enacting time, place, and manner regulations. The Government's interest in preventing the
color photogra
phic reproduction of currency is not limited to its desire to prevent would
counterfeiters from utilizing the illustration itself. The requirement that the illustration be in

black and white is also designed to make it harder for counterfeiters to
gain access to negatives
that could easily be altered and used for counterfeiting purposes. Only one negative and plate is
required for black
white printing. On the other hand, the color
printing process requires
multiple negatives and plates. This inc
reases a counterfeiter's access to the negatives and
plates and enables him to more easily use them for counterfeiting purposes under the guise of a
legitimate project. In opposing a recent bill designed to eliminate the color restriction, a Treasury
tment official noted these concerns, stating that "[t]he size restriction alone does not
address the problem of widespread possession of color separation negatives, nor does it impact
upon the availability of a ready
made alibi for the possessors." Stateme
nt of the Honorable
Robert E. Powis, Deputy Assistant Secretary of the Treasury, before the Subcommittee on
Criminal Justice, House Judiciary Committee on H.R.4275, reprinted in App. D to Juris.
Statement 43a. It is therefore sufficiently evident that the
color limitation serves the
Government's interest in a substantial way. That the limitations may apply to some photographs
that are themselves of no use to counterfeiters does not invalidate the legislation. The

alternative analysis invok
ed by Time has never been a part of the inquiry into the
validity of a time, place, and manner regulation. It is enough that the color restriction
substantially serves the Government's legitimate ends.



Justice BRENNAN argues that the color r
estriction at issue in this case is invalid
because one of the interests served by that restriction
prohibiting counterfeiters from
gaining access to color negatives and plates and from having an instant alibi for
possessing those items
was not adequatel
y expressed in the 1958 legislative history.
Post, at 3288, n. 27. Although Congress never expressly articulated this specific interest
when it enacted the legislation in 1958, it did state that in imposing the size and color
restrictions, it was relying h
eavily on the Treasury Department's opinion that the
restrictions would adequately ensure that the statutory exception would not "facilitate
counterfeiting." S.Rep. No. 2446, at 5
6; H.R.Rep. No. 1709, at 3. Justice BRENNAN
does not dispute that this inter
est is furthered by the color requirement's effect of limiting
the availability of negatives and plates to would
be counterfeiters. Instead, he argues that
the particular negatives and plates used by Time would be of little assistance to
counterfeiters and

that the asserted interest is adequately served by other provisions of
the statute. Post, at 3288, n. 27. Neither of these arguments is persuasive.

First, in determining whether a time, place, and manner regulation substantially serves the
interest, the effectiveness of the regulation should not be measured solely by the
adverse consequences of exempting a particular plaintiff from the regulation.
Clark v.
Community for Creative Non
Violence, 468 U.S. 288, 296
297 (1984)
Heffron v. Internat
Society for Krishna Consciousness, Inc., 452 U.S. 640, 652
653 (1981)
. If Time is exempted
from the color requirement, so must all others who wish to use such reproductions. While Time
may consistently use negatives and plates that are of little use
to counterfeiters, there is no way
of ensuring that others will adhere to that practice.

Second, the fact that the Government's interest is served to some degree by the requirement
that the negatives and plates be destroyed after their final use does no
t render the color
requirement superfluous. During the time that the negatives and plates are in existence for
legitimate purposes, they can still be used for counterfeiting purposes, possibly by the same
individuals who are creating the legitimate reprodu
ctions. Coupled with the other interest served

P Sc 104B

// Prof. Glenn Smith //

Smith Materials, Page TR

by the color requirement
to prevent the unwary from being deceived by otherwise legitimate
we believe that the Government's interest in the increased deterrence provided
by the color requiremen
t in this respect is sufficient to override whatever interest Time might
have in printing the reproduction in color.



The propriety of the size limitation is even clearer. The size limitation is a
reasonable and sufficiently precise way of ens
uring that the illustrations themselves do not have
the capacity to deceive the unwary and inattentive. Indeed, Time does not advance any serious
challenge to the legitimacy of that requirement.

The color and size limitations are therefore reasonable man
ner regulations


that can
constitutionally be imposed on

those wishing to publish photographic reproductions of
currency. Because the provisions of

474 are of real concern only when the limitations of

are not complied with,

474 is als
o constitutional.


Time does not suggest that the color and size restrictions are invalid because they
fail to leave open ample alternative channels of communication. Nor would such an
argument be persuasive. Time is free to use whatever means it wis
hes to communicate
its ideas short of using color photographs that do not meet the size requirement. The
alternative means of communication left open are almost limitless.


The District Court correctly determined that the purpose requirement of

504 is
unconstitutional. However, it erred in failing to consider the validity of the remaining portions of
the statute that applied to Time. Because the color and size limitations are valid, neither


504 is unconstitutional on its face or as
applied to Time. The judgment of the District Court
is accordingly affirmed with respect to the purpose requirement and reversed with respect to the
color and size limitations.

It is so ordered.