*1 REGAN, SECRETARY OF THE TREASURY, et al.
TIME, INC. No. 82-729. Argued November 1983 Decided July 3, 1984 *2 opin- delivered and the Court judgment J., announced White, J., and Burger, C. II-A, in which Part respect Court ion an JJ., joined, O’Connor, Rehnquist, Marshall, Brennan, Burger, II-D, II-C, and II-B, Parts respect opinion with J., an Brennan, filed JJ., joined. O’Connor, Rehnquist J., and C. J., Marshall, in which part, dissenting part concurring in opinion part concurring in opinion J., Powell, filed an 659. p. post, joined, Ste- p. 691. post, J., joined, Blackmun, in which part, dissenting in vens, J., filed opinion concurring in the judgment in part and dissent- ing part, post, p. 692. Elliott argued Schulder the cause appellants. With him on the briefs were Solicitor General Lee, Assistant Attorney General Deputy McGrath, Solicitor General Getter, and Richard A. Olderman. Stuart W. argued Gold appellee. cause for With him
on the brief was Ellen S. Oran. announced judgment Justice White of the Court and *3 delivered opinion of the Court respect with to Part II-A, opinion and an respect to Parts II-B, II-C, and II-D, in which The Chief Justice, Justice Rehnquist, join. O’Connor expressly Constitution empowers Congress “pro- to vide 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 together statutes that restrict the use of photographic reproductions 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 Appellants Amendment. ask us to overturn that judgment.
I Title 18 U. S. C. 474 was during enacted the Civil War to combat surge in counterfeiting great caused in- crease in obligations Government issued to fund the war and the unsettled economic conditions of the time. See United States Raynor, 302 U. S. (1938). 540, 544-546 The sixth paragraph of provides that section liability any- criminal one “prints, who photographs, any or in other manner makes or any executes engraving, photograph, print, impression or security [of the obligation or any . . . likeness .”1 . . part any thereof. States] or United reproduc- photographic use complete ban This exception for statutory currency without remained tions Treasury time, during that century. However, almost permis- special granting practice of developed a Department paper illustrations certain use to wished who those sion Congress acted 1958, purposes. money for §504 as so amending2 C.S. 18 U. practice codify that ... importation publishing, or “printing, permit the security of obligation or other . . . .. . illustrations educational, numismatic, philatelic, . for . . States United jour- books, articles, newsworthy purposes historical, §504 C.S. 18 U. .” . . . newspapers, or albums nals, being any possibility of “prevent In order Rep. 2446, 85th No. fraud,” S. an instrument used 2446); R.H. (hereafter Rep. No. (1958) S. Cong., Sess., 2d (hereafter (1958) Sess., Cong., 2d 1709, 85th Rep. No. creating avoid 1709), an effort Rep. No. R.H. Rep. counterfeiting,” S. “facilitate conditions Congress also 3, at Rep. No. H. R. 5-6; No. Department Treasury adopted restrictions three *4 permis- special granted were imposed who normally those the illustra- First, photographs. such use and to create sion any 1 in or photograph, “print, it a crime made first secu States any United likeness” “in the impression execute” manner Two 347-348. 6, 7,12 33, Stat. §§ 25,1862, ch. Act of Feb. rity in 1862. making of to include prohibition later, Congress broadened years 11,13 172, § Stat. 30,1864, ch. of June Act print photograph. or such any § 5430 changes, as few reenacted, with was The statute 221-222. 1909. codification § as 150 1878, again Statutes Revised reenacted was 1116. 321, 35 Stat. 1909, 4, ch. of Mar. Act laws. penal of the recodification in the changes with minor again once 645, 706. 62 Stat. Ch. illustra certain authorize in 1923 enacted originally was Section 218, 42 ch. of Mar. stamps. Act revenue postage and tions statute. of the revision a wholesale was amendment The 1958 1437. Stat. tions had to be in black and white. they Second, had to be undersized or oversized, i. e., less than three-fourths or more than one and one-half the size original. And third, the negative plates in making used the illustrations had to destroyed after their final authorized use.3 Therefore, under present statutory person scheme, a may photo- make graphic reproductions currency risking without criminal liability if reproductions purpose meet the (numismatic, 3 full, 504(1) provides: “Notwithstanding any other provision of this chapter, the following are
permitted:
“(1) the printing, publishing, or importation, or the making or importa- tion of the necessary plates for such printing or publishing, of illustrations of—
“(A) postage stamps of the United States, “(B) revenue stamps of the United States, “(C) any other obligation or other security of the States, United “(D) postage stamps, revenue stamps, notes, bonds, any other ob- ligation or other security of any foreign government, bank, corporation or for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, (but or albums not for advertising purposes, except stamps and paper money philatelic in or numismatic advertising of legitimate numismatists and dealers stamps publishers or of or dealers philatelic or numismatic articles, books, jour- nals, newspapers, albums). or permitted Illustrations by the foregoing provisions of this section shall be made accordance with the following conditions— “(i) all illustrations shall be in black white, except that illustrations of postage stamps by issued the United by States any foreign government may color; be in “(ii) all illustrations (including illustrations of uncanceled postage stamps color) shall be aof size less than three-fourths or more than one and one- half, in linear dimension, of each part of matter so illustrated which is by covered subparagraph (A), (B), (D) (C), or of this paragraph, except that black and white illustrations of postage and revenue stamps issued the United States or any foreign government and coloredillustrations canceled postage stamps *5 by issued the United States may be in the exact linear dimension in which the stamps were issued; and “(iii) the negatives and plates used in making the illustrations shall be destroyed after their final use accordance with this section.” publica- newsworthy), historical, or educational, philatelic, albums), color newspapers, or journals, (articles, books, tion more or (less three-fourths than white), size and (black and requirements original) theof the size of one-half and one than destroyed im- plates are negatives and 504(1), § if the and of mediately use. after the Inc., Time, decades, past two the of course the Over by advised been has magazines, popular several publisher of repro- photographic particular agents that Service Secret the magazines violated in its appearing currency of ductions warnings, Time Despite the 504. §§474 and provisions cover front the When reproductions. such use continued carried Sports Illustrated February issue 1981, 16, the a pouring into bills reproduction $100 color photographic legal Time’s agent informed Service hoop, a Secret basketball law federal violated illustration the department that plates and all to seize necessary Service the for cover. the production of the in connection used materials of all addresses names agent asked also The requested interview cover prepared the who printers days later, Ten management. Time’s member awith Secretary against the present action initiated Time others,4 Service, and Secret of the Treasury, Director ¶ §§ 504 were judgment that declaratory seeking well as Time, applied to and as face their unconstitutional enforcing defendants preventing the injunction an statutes. threatening enforce District summary judgment, cross-motions On (SDNY Supp. F. Time. favor ruled
Court use Time’s determined 1982). first court Amendment. First protected speech was pass constitutional itself 474 could held then It the Director Treasury Secretary addition General, United Attorney included Service, the defendants Secret Special York, and of New District Attorney for the Southern States Office. Field York New Service’s the Secret charge of Agent
647 muster although because protect was enacted to the Gov- ernment’s compellinginterest in preventing counterfeiting, it was overbroad.
The court concluded exceptions permitted § by 504 did not prohibition save the blanket because pre- that section sented problems constitutional of its Focusing own. on the requirements that the appear illustration in an article, book, journal, newspaper, or album and that phila- it be used for telic, numismatic, educational, historical, or newsworthy purposes, § the court held that 504couldnot be sustained as a place,
valid time, regulation manner required because it the Government to make distinctions based on content or subject matter. The court also purpose determined that the publication restrictions were unconstitutionally vague, observing “[t]he determination of ‘philatelic, what is numismatic, educational, newsworthy’ historical, or is rife with assumption open varying interpretation” and that “[t]he journal, definition of a newspaper anyone’s or album is game play.” Supp., 539 F. at 1390. The court thus con- § cluded ¶ that both § 474, 6, and 504 were unconstitutional.
Appellants sought review of the District Court’s decision by invoking this appellate jurisdiction Court’s under 28 U. S. C. 1252. probable We noted jurisdiction, 459 U. S. (1983), in order to determine whether the two statutes could survive scrutiny. constitutional
HH h—1 The District correctly Court “[bjecause observed the interrelationship of Sections 474 and 504, the ultimate analysis constitutional must be impact directed to the these sections in tandem.” Supp., 5B9F. at 1385. The ex- ceptions §in apply outlined “[notwithstanding any other provision chapter,” of §474. including The criminal liability imposed §474 applies therefore only when a photographic reproduction fails to requirements meet the imposed by §504. if Thus, imposed §by restrictions interests, Amendment First Time’s sufficiently accommodate begin our accordingly upheld. We must statutes both *7 §by imposed 504. focusing restrictions the on inquiry A §by are 504 imposed restrictions the Appellants assert regulations. manner place, and time, reasonable
valid as regula manner place, and time, constitutional, to be order “ ‘may be it First, requirements. three meet must tion speech.’” subject matter or content upon either based Consciousness, Society Krishna International v. Heffron Edison (1981) Consolidated (quoting 648 640, U. S. 452 Inc., 536 U. S. 447 Y., Comm’n Service Public v. of N. Co. governmental significant “‘serve must (1980)). Second, it Pharmacy Virginia (quoting 649 S., 452 U. interest.’” 425 Inc., Council, Consumer Virginia Citizens v. Board open “‘leave must (1976)). third, And 748, 771 S.U. informa of the communication channels ample alternative Pharmacy Virginia (quoting 648 S., at U. 452 tion.’” 771). concluded Court District The supra, at Board, aas sustained not be could 504 requirement purpose it discrimi regulation because manner place, and time, valid agree. We content. basis on nates or educa- concerning newsworthiness determination A on help based be but cannot photograph of a value tional message it delivers. photograph content al- bewill reproduction photographic one statute, Under solely Government because disallowed another lowed is conveyed one in the being message determines imparted message while newsworthy educational or photograph of the permissibility The not. mes- of the nature solely on “dependent often therefore U. S. Carey Brown, v. conveyed.” being sage to dis- Government permit the (1980). Regulations message cannot of the the content basis criminate tolerated under the First Amendment. Id., at 463; Police Department Chicago Mosley, U. S. 92, 95-96 purpose The §504 is therefore constitution- ally infirm.5
B The District Court also vagueness concluded on and other grounds that limiting the exemption §474 from the ban to likenesses currency “publications” contained in was itself invalid. We do not address that issue, however, because there is no evidence suggestion publisher Time, a of magazines, has ever, or will ever, have difficulty in meeting requirement.6 validity publication
5Appellants do not defend the constitutionality of the purpose require ment as written. Brief Appellants 27-28; Tr. ofOralArg. They 10-14. ask us to construe the statute narrowly in order to avoid the constitutional conflict, contending that the references to the purposes various are merely descriptive and illustrative, rather than prescriptive and mandatory. However, appellants are unable suggest to any meaningful interpretation of the purpose requirement that would survive constitutional scrutiny. If the requirement means only that the photograph must serve some pur pose, it is meaningless because every photograph serves purpose. some On the hand, other if the requirement means that the photograph must serve a purpose similar to those enumerated in the statute, it requires the type of content-based scrutiny that the First Amendment forbids. As suming intended the language to have some meaning, we concludethat the entire purpose requirement is unconstitutional. light of that ruling, there is no need for us to consider Time’s argument that the purpose requirement is also unconstitutionally vague. 6 Justice Brennan seems to believe that we hold that the publication
requirement can constitutionally be prohibit used to nonpublishers from ever using photographic reproductions of currency since much of the dis cussion in his opinion concerns the constitutionality of the publication re quirement. Post, at 679-690. clearly As above, stated and as we reit here, erate we express no opinion as to the validity of publication requirement since Time has failed to show that that requirement affects its conduct way. may It well be that a person could not constitution ally be prohibited from using reproduction which conformed with every portion of the statute other than the publication requirement. But that is 650 only academic therefore is standing alone,
requirement, consti- both matter as a Court, This Time. to interest sit restraint, does prudential limitation tutional parties. to the only concern passing are issues resolve require- publication contends nevertheless Time challenge subject to overbroad the statute renders ment S.U. 461 Lawson, v. Kolender Time. publisher such by a U. S. 458 Ferber, v. (1983); York New n. 8 358-359, 352, Better Schaumburg v. Citizens (1982); 768-769 747, v. (1980); Broadrick 634 620, S.U. Environment, v. Al- (1973); Thornhill 612-616 U. S. Oklahoma, argu- Time’s essence S.U. abama, constitutionally may publishers if even be seems ment §504, requirements other conform required pre- unconstitutionally it because overbroad is section currency reproductions making nonpublishers cludes statute. theof requirements they though meet even challenge raised can be overbreadth such However, substantially the statute only when others behalf ain unconstitutional e., when i. overbroad, New applies. cases portion substantial Oklahoma, v. Broadrick 770; supra, at Ferber, York supra, will publication often How 615. *9 be, been, or will has who by someone raised be must which issue reason. that reproduction using such precluded whether decide we should that suggests also Brennan inextricably inter- isit that the basis on invalid is requirement publication However, Time requirement. purpose unconstitutional twined require- publication argues Time argument. made has overbroad, not vague and it is because is unconstitutional ment included have never because down struck be should requirement. purpose the absence requirement purpose of both absence that, even hold we fact Given constitu- can requirements and size color requirements, publication made has Time 658-659, and that 656, Time, infra, applied tionally be by itself publication validity of showing that no issue latter decide out reach need it, no see to we interest own. our be prevent used to person from utilizing an legiti- otherwise mate photograph is not clear from the record before us. In
describing the noncounterfeiting uses to which photographic reproductions of currency put, could the House and Sen- ate Committees only referred to situations in publica- tions were involved.7 light paucity of evidence to the contrary,8 may we assume that the reach of
7 The Committees observed that photographic reproductions of cur rency could be used for many legitimate purposes. “Publishers text books often desire to use illustrations United States savings bonds and postal money orders, for example, in school textbooks. Collectors of old paper money likewise wish to use illustrations of such money in articles relating to their issue and in collector’s catalogs. Historians similarly want to use illustrations of paper money picture the currency in circulation during a particular historical period. Newspapers quite publish often pictures paper money or checks in connection with news articles . . . .” S. Rep. No. 2446, 5; at H. Rep. R. 1709, No. at 3. 8Time cites one instance in which a person may have prevented been from utilizing a photographic reproduction of currency because it failed to appear in one of the publications. enumerated Wagner v. Simon, 412 F. Supp. 426, 431, (WD n. 6 Mo. 1974), aff’d, 534 F. (CA8 2d 833 1976). But one arguably unconstitutional application of the statute prove does not it is substantially overbroad, particularly light of the numerous instances in which the requirement will easily be met. See n. supra. Justice Brennan maintains that we misconstrue the overbreadth doc- trine by focusing on the prior one instance in which the statute argu- was ably applied in an unconstitutional manner. Post, at 684. However, we cite only the one example because that is the only concrete example brought to our attention Time. There is no evidence that the Govern- ment ever, has or will ever, interpret the statute so as prevent Polaroid snapshots of children holding currency or any of the hypothetical ac- tivities conjured up in Time’s brief. It important to remember that the overbreadth doctrine operates as an exception to the normal rules of stand- ing. Thus, up it is to the party invoking the doctrine to demonstrate “a realistic danger that the [ordinance] will significantly compromise recog- nized First protections Amendment parties not before the City Court.” Council Los Angeles v. Taxpayers Vincent, 466 U. S. (1984) (emphasis added). Justice Brennan states that we should re- *10 mand the provide case to Time with an opportunity to make showing, that suggesting that Time had no idea that such a showing required. would be Post, at 680, n. 18. ignores This the fact that it Time, was not Court, this non- to applications” impermissible arguably its “dwarfs § 504 Therefore, supra, 773. Ferber, at York v. New publishers. to Time. unavailing is doctrine overbreadth the invocation C the purpose because that concluded Court District the entire unconstitutional, were requirements publication was This invalid. was § 504 outlined scheme regulatory of the validity the II-B, Part noted First, as error. properly can that issue an not is requirement publication if both even importantly, More case. in this addressed be automatically does unconstitutional, it were requirements fail.9 must statute entire follow aof constitutionality review power exercising rul-A cautiously. act should court federal Act, a legislative elected intent frustrates unconstitutionality ing re- should a court Therefore, people. representatives necessary. is than statute more invalidating from frain act of “whenever observed, has Court this As those separable provisions unobjectionable contains so court of this duty is the unconstitutional, to be found El valid.” as it far so act maintain declare, Gutierrez, S. 215 U. R. Co. Northeastern & Paso require- publication challenge standing to it had argued first which Appellee Brief See doctrine. overbreadth because ment standing to raise no has Time argues . . (“The Government. 29n. Amend- First traditional face in the flies . strategy .. This .... issue challenge permitted Time which under analysis, overbreadth ment unconstitutionally to whom those behalf on applied”). our upon premise misconceive seems Brennan publica to establish lengths great goes to he as is based argument inter completely so “are requirement purpose tion at post, Post, 677. . . .” . inseverable plainly to be twined both premise on the proceeds argument severability Our 665-677. Thus, our unconstitutional. are requirements publication purpose can requirements size color and at whether is directed discussion entire own. their survive *11 (1909). Thus, this upheld Court has the constitutionality of provisions some of a statute even though provisions
the same statute were unconstitutional. Buckley v. Valeo,
424 U. S.
(1976);
1, United States v. Jackson, 390 U. S.
(1968);
585-591
El Paso & Northeastern R.
supra,
Co.,
at 96. See also
v. Breckenridge,
Griffin
One of the purposes main 1958 version of 504was relieve the Treasury Department of the burden of processing requests numerous special permission to use photographic reproductions currency. legislation designed was “obviate necessity of obtaining special permission from the Secretary of Treasury in each case where the use of . . . [of currency was] desired.” Rep. S. No. 2446, at Rep. 6; H. R. No. 1709,at 4. At the same time, past, in the requests granting aware Congress was in order limitations color imposed size Secretary had *12 being used illustrations the any possibility prevent “[t]o Rep. R.H.5; at Rep. No. S. fraud.” instrument way easiest the that Congress determined 3. 1709, at No. undermining the without burden administrative the ease to codify to counterfeiting was prevent to efforts Government’s Treasury heavily the relying practice, then-existing the publications printing in “the that opinion Department’s money . . restricted . paper illustrations black-and-white Rep. No. counterfeiting.” S. facilitate not will size in congressional desire This 3. 1709,at Rep. No. R.H. 5-6; hindering the Gov- without burden administrative the to ease be counterfeiting can laws the enforce to efforts ernment’s from eliminated requirement purpose the if even achieved Congress believed that indication nois There statute.10 the does requirement purpose the that agree seems Brennan Justice Treasury easing the interest express Congress’ advance significantly not Similarly, 676-677, n. 14. Post, at burden. administrative Department’s pur the serve can statute that the conclusion our dispute not he does exception ensure Congress expressed —to pose absence in the law—even circumvent counterfeiters permit other, some had Congress argues Instead, he requirement. purpose and that it enacted when mind interest paramount down. struck requirement purpose once achieved cannot interest Brennan, according to interest, congressional overriding This worthwhile.” considered purposes for illustrations “permit is to history of legislative nothing However, Post, at 673. expanding overriding concern Congress’ indicates amendment activities. worthwhile certain promote towas purpose activities concerningwhich history legislative in the is no discussion There more were activities why some worthwhile most to be considered were illustrations referred the statute Instead, others. than worthwhile only purposes newsworthy historical, and educational, numismatic, for Depart Treasury activities types were those because past. in the requests exemption received had ment per- special requests numerous receives Department Treasury “The pur- . for various money . . paper illustrations use mission of United to use desire often of textbooks Publishers poses. purpose requirement either significantly eased the Treasury Department’s burden or was necessary prevent exception being used as a means of circumventing the counterfeiting laws. if Thus, the size and color limita- tions are Congress’ constitutional,11 intent large can in measure be fulfilled without purpose requirement. We therefore examine the size and color light restrictions in of the First Amendment interests asserted Time.
D In considering validity of the color and size limitations, we again once begin appellants’ contention that the requirements are sustainable as place, reasonable time, regulations. manner purpose Unlike the *13 requirement, the States savings bonds postal and money orders, for example in school text- books. Collectors of old paper money likewise wish to use illustrations in articles relating to their issue and in collector’s catalogs. Historians simi- larly want to use illustrations paper of money picture the currency in circulation during particular period. historical Newspapers quite often publish pictures of paper money or checks in connection with news articles, usually because ignorance of of the statutory prohibitions against the use of such illustrations. (1) “Paragraph of section 504... as it would be by amended bill, will specifically permit such illustrations for numismatic, educational, histori- cal, and newsworthy purposes and will obviate the necessity obtaining special permission the Secretary from the Treasury in each case where the use such illustrations is desired.” Rep. S. 2446, No. at 5-6; H. R. Rep. No. 1709, at 3-4 (emphasis added).
While the legislation undoubtedly benefits those who engage in the listed activities, there is no indication that Congress enacted the legislation out of special concern for such individuals. Instead, as Time itself points out, Congress apparently acted “in response to the Treasury Department’s desire to be rid an administrative nuisance.” Brief for Appellee 8. As noted above, that interest and the other interest expressed by Congress when it enacted the amendment can adequately be served even in absence purpose requirement. 11Time does not challenge the constitutionality of the requirement negatives plates and be destroyed immediately after the final author ized Id., use. 9, n. 11. basis on discriminate not do limitations color and size requirements size and color Compliance content. any on view expressing from Time prevent not does expressing currency in using illustrations subject or does the Government importantly, More views. those imparted in being message theof nature evaluate need limita Those limitations. size color enforce order can in which only manner restrict tions level decibel similar They thus are presented. Cooper, 336 v. Kovacs Court upheld restrictions outdoor height limitations (1949), size 77S.U. City, 540 v. Redwood Baldwin courts, upheld signs nom. sub 1976), (CA9 denied cert. 1368-1369 1360, 2dF. Baptist Temple (1977); S. Baldwin, 431 U. Leipzig v. 146, 138,M. 98 N. Albuquerque, City v. Church, Inc. Ridge, 111 Village Burr Krych (1982); 565, 2dP. 232-233 E. 2d N. 464-466, 444 App. 3d Ill. first of pass the limitations color size Therefore, the manner place, and time, valid aof requirements three the regulation. require- second meet the also limitations color size conced- effectively Government’s serve they inment counterfeiting. Time preventing interest compelling edly the Gov- serves restriction color although contends *14 counterfeiting, it is nonethe- preventing in interest ernment’s asserts enough. Time narrow not it is because invalid less currency illustration applies an restriction the color that than broader thus is and capacity deceive regardless of pre- interest the Government’s necessary achieve is a narrow places too Time However, counterfeiting. venting heavy a too and interest Government’s construction regula- manner place, enacting time, those burden .on the color preventing interest Government’s The tions. to its limited currency reproduction photographic utilizing the counterfeiters prevent would-be desire inbe illustration The itself. illustration black and white is designed also to make it harder for coun- gain terfeiters to negatives access to easily could be al- tered and used for counterfeiting purposes. Only nega- one plate tive and required printing. black-and-white On the other hand, the color-printing process requires multiple negatives plates. This increases a counterfeiter's access negatives to the plates and enables him to more easily use them for counterfeiting purposes guise under the of a legitimate project. In opposing a recent designed bill eliminate the color a Treasury restriction, Department official noted these stating concerns, “[t]he size restriction alone does not problem address the of widespread possession of separation color negatives, nor impact does it upon the avail- ability of ready-made possessors.” alibi for the Statement of the Honorable Robert E. Deputy Powis, Assistant Secre- tary of the Treasury, before the Subcommittee on Criminal Justice, Judiciary House Committee on H. R. reprinted App. D to Juris. Statement 43a. It is therefore suffi- ciently evident that the color limitation serves the Govern- ment’s interest in a way. substantial That the limitations may apply to some photographs that are themselves of no use to counterfeiters does not legislation. invalidate the less-restrictive-alternative analysis invoked Time has never part been inquiry into validity of a time, place, and regulation. manner enough It is that the color restriction substantially serves the Government’s ends.12 12Justice Brennan argues that the color restriction at issue in this ease is invalid because one the interests served prohibit restriction — ing counterfeiters from gaining access to color negatives plates from having an instant alibi for possessing those items —was not ade quately expressed in the legislative history. Post, at 688-690, n. 27. Although Congress never expressly articulated specific interest when it enacted the legislation in 1958, it did state imposing the size and color restrictions, it was relying heavily on the Treasury Department’s opinion that the restrictions would adequately ensure that the statutory *15 exception would not “facilitate counterfeiting.” Rep. S. No. 2446, 5-6; at The clearer. even is limitation size the propriety The way of sufficiently precise and reasonable ais limitation size the have do not themselves ensuring the that Indeed, unwary inattentive. and the deceive capacity to legiti- challenge the to any serious advance not does Time requirement. macy that reasonable therefore are limitations and size color imposed on constitutionally be can that regulations13 manner that dispute not does Brennan 3. No. Rep. H. R. avail- the limiting effect requirement’s color the is furthered interest Instead, he counterfeiters. would-be to plates and negatives ability of lit- ofbe would by Time used plates negatives particular the argues that adequately is interest asserted the that counterfeiters to tle assistance 27. 688-690, n. Post, at statute. provisions by other served persuasive. is arguments these Neither regulation and manner time, place, determining whether First, effectiveness interest, the Government’s substantially serves consequences adverse by the solely measured not be should regulation Community v. Clark regulation. from plaintiff particular exempting International 296-297; ante, at Non-Violence, Heffron Creative for 640, 652-653 Inc., S. Consciousness, U. Krishna Society for others all must so requirement, color from exempted is If Time consistently use may Time While reproductions. use such to wish who way nois counterfeiters, there to use little that are plates negatives practice. will adhere others ensuring that degree some is served interest Government’s Second, fact their after destroyed be plates negatives requirement by the During the superfluous. requirement color render not use does final purposes, legitimate in existence are plates negatives time in- by the same possibly purposes, counterfeiting used still be can they Coupled with reproductions. legitimate creating the are who dividuals unwary prevent requirement color served —to interest believe reproductions by otherwise —we deceived being by the provided deference increased interest Government’s interest whatever to override sufficient respect in this color color. reproduction printing the might have Time invalid are restrictions and size color that the suggest does Time of communica channels ample alternative open leave they fail because use free Time persuasive. argument such Nor tion. using color short its ideas communicate wishes means whatever *16 those wishing to publish photographic reproductions of cur- rency. Because the provisions of §474 are of real concern only when the limitations of § 504 are not complied with, § is also constitutional. ( H-H h—i J—
The District Court correctly determined that the purpose requirement of § 504 is unconstitutional.14 However, it erred failing consider the validity of the remaining portions of the statute that applied to Time. Because the color and size limitations are valid, §474 neither nor §504 is unconstitu- tional on its face or as applied to Time.15 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. Justice Brennan, with whom Justice Marshall joins, concurring part and dissenting part.
Title 18 U. S. §C. ¶ 474, 6, makes it a federal crime to use pictures of money for any purpose whatsoever, even in the absence of an unlawful intent, and without regard to whether such pictures, or the materials used to make them, might be employed fraudulently. Recognizing that this flat ban sweeps within it a substantial amount of legitimate expres- sion posing virtually no risk of counterfeiting, Congress en- acted 18 U. S. §C. 504, which exempts from the ban illustra- tions of the currency “for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, jour- nals, newspapers, or albums,” provided such illustrations meet certain restrictions as to form and preparation. photographs that do not meet the size requirement. The alternative means of communication left open are almost limitless. 14All Justices except agree Stevens the District Court was correct to this extent. 15The Justices joining opinion and Justice Stevens disagree with and reverse the District Court in these respects. work currently written statutes two these my view, expression. abridgment significant effect together regulation of criminal detailed extensive given And, *17 pro- two the parts Title in other counterfeiting found concededly Government’s the marginally serve only visions the integrity of the preserving in interest important highly reject either expressly today does currency. Court The recognize that eight Justices Indeed, conclusions. these only those permit intent —to exclusive and Congress’ obvious educa- numismatic, “philatelic, currency with illustrations all to ban newsworthy purposes” historical, tional, through constitutionally achieved simply cannot others — Never- 648-649. Ante, at means. chosen legislatively the point this on judgment the joined in White, theless, Justice §504 §474 nor “neither concludes by Justice Stevens, Ante, Time.” applied to asor face unconstitutional 659. some- fact in lies result paradoxical key opinion, his end beginning between where enacted statutes reviewing the stops White Justice his statutory scheme assessing a begins Congress and “purposes” separate identifying After creation. own exemption §504 obtaining the conditions “publications” former, Justice invalidating the my view, correctly in and, were requirements though two proceeds White Congress assumes He disjunctive. written satisfying either exempt illustrations wanted have in force one leave authorized feels therefore condition Accordingly, Justice White invalidating other. while offending words certain simply excise proposes rest leaves they appear in which integrated clause revised place language statutory —confident Time’s “sufficiently accommodates version effectuating 648, while ante, at interests,” Amendment First 653. ante, at advance,” sought to policies “the I certainly agree with principle that we should construe
statutes to avoid constitutional questions, so long as our interpretation remains consistent Congress’ objectives. my But, view, Justice White’s limiting construction of the statutory scheme at issue here neither remains faithful to congressional intent nor rids legislation of constitutional difficulties. The statutory scheme left in force after “remarkable judicial White’s feat of surgery,” Welsh v. United States, 398 U. (1970) S. 333, 351 (Harlan, J., concur- ring result), would ban illustrations of currency by all “nonpublishers,” even for the kinds of purposes Congress plainly intended to permit allow, but identical all “publishers,” regard without purposes of their illus- trations and even if the nature of their poses media a rela- *18 tively greater risk of counterfeiting. Such a reconstructed scheme bears no relationship to the language, history, pur- or pose of the statutes as enacted. despite And, the removal “purposes” requirement, the revised statutes remain unconstitutional on their face.
I Because the Court §§474 decides that and 504 are con- stitutional applied as may Time, it be useful to review in somewhat more detail precisely how provisions these have applied been appellee. many For years, Time’s various magazines have pictures used of United States currency illustrate articles concerning political, sports economic, and events. appellee As explains, pictures these depicted have bills “significantly enlarged or reduced in size, discolored or otherwise altered in appearance, only shown part, and/or substantially by printed obscured legends or overlaid ob- jects.” Brief Appellee for 3. In picture addition, each “ap- peared only on one page,” side of and page that was of glossy paper used in production appellee’s magazines. Ibid. See 539 F. Supp. (SDNY 1371, 1982). 1377-1379 agents by warned was Time early as Beginning on ban violated such Service Secret ex- not §474 were imposed currency reproductions ensuing years, Secret App. 29. § 504. empt under interpretations different several Time agents offered Service was points, Time various At requirements. statutory white only black print (a) could it informed only “numis- specified size currency aof likenesses id., purposes, newsworthy” or historical educational, matic, currency any photograph print never (b) could 27; at only “illustra- 504(1) exempts because size, or color likenesses only print (c) it could ibid.; and tions,” news- or historical educational, “numismatic, accompanied Reserve Federal particular about worthy” information likenesses use could 27-28, id., at illustrated, Note 33. id., at purposes,” eye-catching “decorative statutes, varying constructions Relying these on federal it violated Time agents informed Service Secret currency likenesses and distorted partial it used when law things, inflation, among other concerning, articles illustrate conference campaign, a election anon economics effect bribery, corporate policy, monetary international on Id., corporation. by “cash-rich” faced difficulties financial warnings and advance occasions, several On 29-34. at led Service Secret id., wrist,” “slap[s] *19 prepared been had that covers withdraw editors Time’s judgment, were their in which, illustrations substitute thought communicating nearly effective as “not by banned illustration conveyed intended 30. Id., at Service.” Secret legal Time’s agent informed Service May a Secret In Illustrated Sports an issue cover that department counter- violated earlier months three appeared had illustrating offending cover, supposedly The feiting statute. basketball, in amateur bribery concerning scandal article one- bills, portions of $100 reproductions color included hoop. The a basketball into pouring size, actual third agent told Time that the Secret Service would seize all ma- preparation terials used in of the cover, asked for the names addresses all individuals companies involved in its production, requested an interview with a member of management. Time’s days Ten brought later, Time action seeking declaratory injunctive prevent relief to the Government’s enforcement or threat of enforcement of §§474 against and 504 Time.
HH r—H linchpin of Justice opinion is his view that White’s 504(1) § the words in limiting exemption to illustrations of currency philatelic, “for numismatic, educational, historical, or newsworthy purposes,” can be phrase excised from the they appear leaving while in force language notably remains, requirement exempted appear in “publications,” certain that is, “in articles, books, journals, newspapers, or albums.” ante, at 649, 652. acknowledges that, after invalidating the White “purposes” requirement, he should decide whether what is “ left ‘unobjectionable consists of provisions separable from ” those found to be unconstitutional.’ Ante, at (quoting El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, (1909)). although explains But, he why he finds “publications” requirement “unobjectionable,” at least in the context of this case, ante, at 650-652, explains he never why language setting out “separable” condition is the rest of the sentence appears.1 which it 1 response to this opinion, Justice White denies he has severed “publications” from the “purposes” requirement or that he needs to do so in order to reach his Ante, result. at 649-650, n. 6,652, n. 9. aBut court must obviously determine the scope of a statutory standard under review before evaluating its constitutionality. From the outset óf this litigation, parties both and the District Court have read 504 as estab lishing a single, unified exemption from the against ban currency illustra tions and have assumed, correctly in my view, that each requirement *20 the statute is a necessary condition for obtaining that exemption. After 664 statute language the of White Justice my the view, In “unobjection- “separable” nor is neither force leave depends severability recognition that Despite his able.” of his deletion 653,2 ante, at intent, congressional “largely” on ante, Justice at requirement, “purposes” the striking down correctly may “standing alone” requirement “publications” the that states
White therefore, Justice Necessarily, ante, 649-650. here, at challenged not be alone” can “stand requirement “publications” the believes White requirement. “purposes” the without language, “purposes” Justice the of his construction Because can statute of the rest the whether question not reach does Stevens congressional consistent requirement, without in force remain ante, at Compare divided. equally issue, Court On intent. J., concur- (Powell, at 691-692 post, White, J.), with (opinion 652-656 part). dissenting part ring Justice I find opinion because White’s of Justice II-A Part join 1 to impossible “purposes” of the interpretation Stevens’ legislative its statute of the language plain either square with 698-699, at post, suggests, Stevens instance, if, as Justice history. For money not used in which any illustration exempt to is meant 504 prohibited Congress why to see is difficult counterfeiting purposes, below, the And, I detail as advertising purposes. currency for use of enacted, later initially it was demonstrates the statute history of currency likenesses from ban exempt amended, in order listed. purposes specific serve those only text of ignoring the largely Stevens, Justice infra, at 668-673. though language “purposes” treat the history, seems statute thereby he I believe requirement. “publications” nothing to the it adds them save order construing statutes principle carries “ stat [the] purpose perverting point ‘to attack constitutional State, Secretary Aptheker v. rewriting it.” judicially [and] . . .’ ute 203, 211 States, S.U. v. United (1964) Scales (quoting 500, 515 U. S. statutory words meaning of precise Moreover, he leaves (1961)). “attempt ‘construe’ Thus, his from clear. far interprets he injectfs] . constitutionality . . core some its recesses probe . . .” application. scope and statute’s into vagueness an element 516. supra, Aptheker, ex severability is implication, White’s contrary to fact, Ferber, York New See, g., e. intent. legislative clusively question construing rule of general And, like the 769, n. 24 U. S.
665 a few words from an phrase § indivisible in 504would work a change dramatic scope of the contemplated scheme Congress. As a result of this legislative exercise in drafts- manship, all members of the “publishers” ill-defined class of meeting the requirements §504 of exempt would be §474 from the regardless ban, purposes their illustra- may tions serve or the risk their may pose illustrations endangering currency. Conversely, “nonpublishers” all would subject be §474 to the ban, even when pursuing the same purposes through pose illustrations that similar, or even smaller, threat of counterfeiting. I do not believe limiting construction of statutory scheme can supported (A) language § and structure of 504 or (B) legislative history purposes. And, as I shall show in Part III, the abridgment substantial expression free imposed by these statutes, even as White revise them, renders the remaining language far from con- ” stitutionally “unobjectionable.
A As relevant here, passed version of 504 by Congress exempts from the prohibition criminal against using pictures currency statutes to avoid questions constitutional from which it derives, ibid., doctrine of severability “does not . . . license a court to usurp the policymaking legislative duly functions representatives.” elected Cf. Heckler v. Mathews, 465 U. 728, (1984). S. 741 Instead, courts ad- dressing questions of severability guided should be by Chief Justice Taft’s admonition “that may amendment not be substituted for construction, and that a court may not legislative exercise functions to save [a] law from con- flict with constitutional limitation.” Yu Cong Eng v. Trinidad, 271 U. S. 500, (1926). 518 Westcott, v. 443 76, U. S. Califano 89-91 (1979); id., at 94-96 (Powell, J., concurring part and dissenting in part); NLRB v. Catholic Bishop Chicago, 490, 440 U. S. (1979) 508-511 (Brennan, J., dissenting); Welsh v. States, United 398 U. (1970) S. (Harlan, J., concurring in result); Aptheker v. Secretary State, supra, 515; Moore Ice Cream Rose, Co. U. S. or importation, or publishing, printing, “(1) the such necessary plates for importation making or of— publishing, printing security the United *22 obligation or “(C) . . . . . . States, historical, or educational, numismatic, philatelic, “for news- journals, books, articles, in
newsworthy purposes ex- advertising purposes, (but for not or albums papers, philatelic money in paper stamps and cept illustrations numismatists advertising of numismatic or philatelic dealers orof publishers stamps or dealers or newspapers, journals, books, articles, numismatic or added). §504(1) (emphasis albums).” C.S. 18 U. availability of §504(1) the extends language of plain serv- illustrations those ban the exemption from the Al- others. no purposes and specified enumerated ing the appear illustrations requires such also though the restric- “publications” “purposes” the media, certain They are instead disjunctive. the written are tions sufficient is a indicating neither that “in,” by the word linked only the statute; protection claiming for condition serve both those permitted are are illustrations journals, books, articles, “in appear purposes specified the list therefore, terms, By albums.” newspapers, exemp- scope narrows qualification a media basis severable independent and than rather tion, currency.3 illustrations use obtaining permission have § 504 amendments recent reporting Committees Congressional for obtain necessary conditions as requirements itsof each described also 1213, 90th No. Rep. R. g., H. See, e. exemption. protection ing follow “meet must (1968) (permitted Sess., 1-2 Cong., 2d restrictions); “publications” including “purposes” conditions” ing three id., 6at conditions”); following with all “comply (must id., 4at newsworthy purposes, historical, or educational, philatelic, (“must initially recognizes that “purposes” White “publications” together restrictions act scope to limit the exemption. ante, at 645-646. Yet, in concluding Congress exempt “publications” even those do not designated serve the “purposes,” ante, see at 649, proceeds though Justice White requirements the two were disjunctive. written in the Onlyby reading the statute as permitting illustrations that meet “purpose” either the “publication” or the requirement can one conclude that Con- gress would have wanted exemption to be available to parties satisfying one condition but not the other.
As far as I am aware, this is the first time that Members of
sought
Court have
to sever selected
single
words from a
integrated statutory phrase and to
modifying
transform a
provision
clause into a
operate
that can
independently.4 To
be sure,
easily
placed
could
have
*23
“purpose”
and
“publication” requirements
separate
subsections and con
nected them with the word “or”; in
might
that
one
event,
plausibly conclude
operate
that one can
exemp
as a
basis
tion without the other.5 The fact is,
Congress
however, that
must appear in certain publications, and must not be used for advertising
purposes”).
4 Cf. Planned Parenthood Missouri v. Danforth,
52,
428 U. S.
83
(two
(1976)
sentences in one section of statute “must stand or fall as a unit”
they
since
“are inextricably
together”).
bound
See
Glodgett
Philbrook v.
421
(1975)
U. S. 707,
(“‘In
713
expounding a statute,
must
we
not be
guided by a single sentence or
member
a sentence,
provi
but look to the
sions of the
law,
whole
and
object
to its
policy’
and
”);
Belford,
Kokoszka v.
417 U.
642,
(1974)
S.
(“When
650
‘interpreting
statute,
the court will not
look merely to particular
general
clause which
used,
may
words
be
but
will take in connection with it the whole statute . . .
objects
and the
and
policy of
law,
indicated
its various provisions,
give
and
to it such
a construction as
carry
will
into execution the will of
Legislature’ ”);
Richards v.
States,
United
369
1,
(1962) (“a
U. S.
of a
section
statute
should not be read in isolation from
Act”).
the context of the whole
5Cf. EEOC v. Allstate
Co.,
Insurance
(SD
570 F. Supp.
1983)
1224 Miss.
(concerning severability of separately
pro
denominated
veto
legislative
vision from remainder of statute), appeal dism’d,
B goal expressed clearly statute’s Notwithstanding numismatic, only “philatelic, exempting newsworthy purposes,” historical, educational, policies “the his confidence expresses White of Car- (1936) (opinion 238, 335 Co., S. 298 U. Coal v. Carter Carter division formal severability] is the [of token J.) (“confirmatory dozo, Hyman Construction numbered”); George separately ‘Parts’ into statute Comm’n, F. 2d Review Health Safety & Occupational v.Co. alternatives indicates disjunctive aof 1978) (“[n]ormally, use (CA4 n. 10 a construction such unless separately treated they be requires Act”). repugnant provision renders structure language in the indications several are There limitation inextricable an imposes language “purposes” toas the restrictions exemption 504(1) availability of the exemp and severable independent to establish intended were media *24 by bisected phrase entire First, “publications.” for tion elabora a further setting out clause by parenthetical is followed White beginning Thus, both permitted. purposes types of the tion pur permitted concern appears of fora the list which sentence of the end purposes, advertising prohibiting Second, when poses. collecting coin stamp and related advertising exempts books, journals, articles, or numismatic philatelic “in phrase using the in as act purposes listed confirming newspapers, albums” — 504(2) expressly Third, § media. enumerated limitations separable they unless purpose their regard to without slides movies exempts requirements “purposes” case prints, into converted are mean render language “purposes” 504(1) Deletion apply. § statute. parts two between distinction express ingless sought to advance enacting 504 can be effectuated” even though that standard is unenforceable. Ante, at 653. He never explains, however, congressional how policies might be advanced with the “purposes” language deleted and the “publications” requirement left in force. Indeed, he never just indicates what function he believes the publica- list of tions in the statute was intended to serve. We cannot, how- properly ever, conclude “publications” that the requirement can be left “standing alone,” ante, at 649-650, without considering how relates to the overall objectives of the statutory scheme. A review of history purposes of the statutory provides scheme support no the conclusion that Congress would want to special extend protection to all “publications” illustrations in and to ban pictures of “nonpublishers,” regard without to whether either group’s illustrations serve “philatelic, numismatic, educational, historical, or newsworthy purposes.”
(1) Consistent plain with the language §of 504, the statute’s legislative history confirms that it was originally adopted, and later amended, in order to exempt from the otherwise comprehensive ban on likenesses of the currency only those illustrations that serve specific purposes Congress deemed worthy special protection. At the outset, it is crucial to recall the breadth Congress’ total ban on all illus- trations of the currency, prohibition that was hurriedly adopted part comprehensive emergency legislation designed to fund the Civil War, see ante, at 643-644, and n. 1, and that has been reenacted explanation little only changes minor in wording every subsequent revision and codification of the Federal Criminal Code. See Brief for Appellee 6-8. Beginning nearly years after the prohibition broad was first Congress grew enacted, concerned prohibition that the swept within it a number posing activities little
threat of counterfeiting. Accordingly, in a succession of *25 670 specific exceptions for certain Congress fashioned
enactments, began It protection. special worthy of it found activities those importance to activity whose collecting, stamp with struc- the evident still 504 amended and drafted who the language in crucial The version. current the ture 1923with code criminal the into came first present statute of illustrations publishing and printing to allow “[a]n Act plates.” stamps defaced revenue postage and foreign indi- purpose its statement As 1437. 42 Stat. 218, Ch. fact recognition passed in was statute cates, country, this stamp many collectors great “[t]here are to issue permit them towas purpose statute's] [the bene- print them stamps and together defaced gather (remarks (1923) Cong. Rec. usually children.” fit aim Congress achieved Cummins). Although Sen. of by language it publications, kinds protecting certain exempt to intended it crystal clear employed makes stamp purpose of specified serving the only publications only “in illustrations allowed statute collecting. Thus, the albums, or journals, books, articles, historical or philatelic [desig- dealers publishers or circulars 218, ch. circulars,” journals, albums stamps, books, nated] indicating added), plainly (emphasis 42 Stat. illustrations permitted carry could publications listed nature. historical” “philatelic or they were only if specified with for activities exemption Accordingly, an was legislation object exclusive purpose was scope. its qualify intended protection extend amended was 1937, Treasury De- stamps allow foreign to undefaced 6. 52 Stat. exempted uses, ch. regulate partment new Cong., Sess., 1st 1159, 75th Rep. No. S. printing of black- permit [t]o act “an entitled version, now postage foreign States of United and-white for- carried Stat. 10, 52 ch. purposes,” philatelic stamps for publications concerned original restriction ward *26 stamp collecting and slightly enlarged group publica- protected. tions so stylistic In a clarification that highlights the centrality of “purposes” requirement, the 1937 amendment also introduced the sentence structure that remains in the today: Whereas the 1923 statute exempted only “philatelic illustrations in or historical books, journals, albums or circulars,” the 1938 permitted revision philatelic illustrations “for purposes in jour- articles, books, nals, newspapers, Ibid, or albums . . . (emphasis added). This modification, which established the basic form of the provision, current extended the exemption to the types five publications only listed, but they used the if “philatelic purposes.” Congress for thereby indicated its unmistakable intention that the “purpose” requirement would continue play the central role in the availability of the exemption.7 exemption was again amended in 1958 in order to protection extend its to illustrations of United obliga- States tions other stamps than expand and to range specified
purposes for which such illustrations could be used. Pub. L. 85-921, 72 Stat. 1771. This revision retained the sentence structure of the 1938 including statute, permissible its list of media. And, as legislative before, the history makes clear intended “purposes” restriction to continue to act as a indispensable central and qualification scope on the exemption. For instance, the Reports Committee say nothing specially about “publications” favored they when explain purpose that the of the bill, as relevant here, is “[pjermit black and white illustrations of United States foreign paper money and obligations and securities 1948, 7 In part of a general codification of the criminal laws, exemption, only “[m]inor changes in phraseology” not relevant here, H. R. Rep. 152, No. 79th Cong., Sess., 1st (1945), A40 given was its current section number “Printing shorter stamps title, for PHILATELIC PURPOSES.” 62 Stat. 713. newsworthy purposes.” historical, educational, Rep. (1958); S. Sess., 2d Cong., 1709, 85th No. Rep. H. R. added). (1958) (emphasis Sess., 2d Cong., 85th 2446, No. 8. at No. Rep. S.7; No. R. Rep. H. See also “publi- solicitude any special indicate Reports Nor do *27 codify to is meant the bill state they when cations” to “exceptions of permitting practice Treasury Department’s of illustrations to use permission special by granting 474] [§ numismatic, his- money paper and bonds States for United 1709, No. H. R. Rep. purposes.” torical, educational added).8 Indeed, 5 (emphasis at 2446, No. 3; Rep. at S. the “publica- to Reports reference illuminating
only simply intended it was indicates requirement,9 tions” purposes permitted illustrations to ensure money of paper likeness the form take ‘facsimiles Rep. S. 1709, 4; at R. No. Rep. H. obligations,” or other ex- fact that added). of the light at 6 2446, (emphasis No. of facsim- and possession use controlled already law isting by the promulgated regulations refer to Reports Committee illustrations existing exemption for to enforce Department Treasury newspapers, or articles, books, journals, purposes “philatelic with surpris 2446, 4. Not 2; Rep. No. at 1709, at S. Rep. No. H. R. albums.” special effort suggesting regulations cited nothing in ingly, there is such define much less to “nonpublications,” prevent illustrations to make, (1959) permission “to (granting §402.1 31 CFR classification. United of canceled reproductions white of black and dispose hold and are Provided, reproductions That such stamps: revenue internal States making, and in connection part disposed of as made, held and reproductions purposes, for lawful disposition, holding, attached”); (permitting §405.1 are stamps such the documents restriction without purposes” publicity “for war bonds illustrations forum). as to ante, n. notes, at true, as White It is illus use might wish to people who Committees of given examples newspaper purposes money for trations —textbook all be said money, and historians —could paper collectors publishers, history, legislative in the indication There no “publications.” involve exclusive. were meant examples however, these illegitimate
iles for purposes,10that only reference strength- ens the conclusion that objective §504 sole was to permit illustrations purposes Congress considered worthwhile.11 history, Given this it is clear that the objective central §504 very —its philatelic, exempt essence—was only
“for numismatic, educational, historical, or news- worthy purposes.” Having objective concluded that this cannot constitutionally be through achieved the legislatively chosen means, Justice White therefore simply errs in deleting the statutory crucial language using the words that remain as the raw materials for a new statute of his own making. 10Independent of provisions here, issue several parts extensive statutory scheme designed prevent counterfeiting control the possession of items which, by virtue of size, their shape, or consistency, *28 pieces look like of currency. instance, § For 474, ¶ 5, the provision imme diately preceding the one against invoked appellee, imposes criminal liabil
ity
anyone
who
“has
possession
his
custody
or
.
. .
obligation or
other security made or executed, in whole
in part,
after the similitude of
any obligation or other security issued under the authority of the United
States, with intent to sell or otherwise use the
.
same
. . .” In United
Turner,
States v.
586 F.
395,
(CA5
2d
397-399
1978), the Court of Appeals
sustained the conviction, under 474, 5,
¶ of an
possessed
individual who
a
number of one-sided photocopies of dollar bills of a kind that had been used
successfully to defraud change machines. See
§474,
also
¶4; United
Dixon,
States v.
90,
588 F.
(CA4
2d
91-92
1978); Koran v.
States,
United
(CA5
(2) statute, objective of history obvious light In standing alone requirement “publications” independent acknowle seem now appellants As sense. little makes for explanation plausible most dge,12 the “in appear purposes serving listed Con albums” newspapers, or journals, books, articles, toas elaboration provide further thereby intended gress seeking while to allow it wished of activities general sorts cre justify the used be exemption not to ensure currency genuine similar physically so likenesses ation therefore Appellants fraudulently. used they could language work “forum” “purpose” suggest exemption that single standard establish together to prescriptive than rather illustrative, “descriptive and They read thus 28. Appellants mandatory.” Brief limit split as two phrase that White entire “publications,” availability to exemption’s ing the decep potentially distinguished from understood, broadly “facsimiles.”
tive has it enforces statutory scheme construction Government’s Service above, the Secret As noted consistency. model hardly been dur exemption interpretations three different least at adopted has directors. and art editors Time’s work overseen has years ing the appellants litigation, course over even And 662. supra, Court, they seemed District position. their shifted frequently have of Treas Department in a published §504 a construction depart *29 extremely unclear. reading of the statute precise left its but ury pamphlet Summary for Motion Plaintiff’s Opposition Lawof Memorandum See Court, appellants statement jurisdictional their 26, n. Judgment construction published Department’s Treasury the disavow appeared be sometime finally, And, 15, n. 9. Statement Juris. exemption. merits, briefing on statement jurisdictional filing of the tween interpretation recent most its abandoned itself Treasury Department conforms apparently now pamphlet, amended § 504 Appellants for Brief Court. in this has taken Government position 28, n. 18. interpretation This ascribes far more rationality to Con- gress than any suggestion that, order to obtain the benefit of the exemption, an illustration literally must “ap- pear in one of publications,” enumerated cf., ante, at
n. 8. It is difficult imagine why Congress would have only considered pictures “in articles, journals, books, news- papers, or albums”—as distinct from say, those on, leaflets or posters sufficiently important or — to warrant a special exemption from the 474 ban.13 Nor appar- could the ent special arbitrariness of a exemption just for the listed “publications” justified Congress’ reference to desire to minimize the risk of counterfeiting. Although a limitation to expressly listed might media exclude “facsimiles,” there are numerous other expression media for not found in the statutory list that do not come close to resembling slips of paper shape in the and consistency of Federal Reserve Notes. It hardly could be contended, example, depictions of currency on placards, billboards, barnyard pose doors greater threat of counterfeiting than identical illustrations in “articles, journals, books, newspapers, or albums.” finally, And, although a reading restrictive “publications” requirement might arguably Congress’ serve undoubted wish “to relieve Treasury Department of the burden of processing requests numerous special permis- sion to use photographic reproductions currency,” ante, at 653, mere “administrative independent convenience,” objective, substantive plainly was primary legislative goal. To contrary, legislative history §504 confirms Congress’ objective substantive enacting 13If §504 permitted illustrations only in the publications enumerated theory that —without regard to potential their use in counterfeiting relative to unlisted media —the specified media are the places only in which “legitimate” illustrations will appear, would, course, rest on a dis tinction among otherwise identical communications according utterly to an undefined and unjustified Government selection of preferred speakers. Cf. Police Department Chicago v. Mosley, U. S. 92 *30 special grant §474 towas ban the exemption from specific and purposes, specified serving illustrations permission simply publications certain illustrations permit to not easy to administer.14 exemption would such because color the that conclusion White’s Justice flaw undermines same The congres with consistent in force stay could § 504 of requirements size and 651-652, the ante, at conclusion, his contrary to if, even intent sional ante, at unconstitutionally overbroad. is requirement “publications” that states White Justice hypothesis, of this support 652-653. re purpose the that believed Congress that indication “[tjhere no is burden Department’s Treasury the eased significantly either quirement a means being used exception from the prevent necessary to was or this But Ante, 654-655. at laws.” counterfeiting circumventing the was “purposes” The man. a straw only defeats argument or to administer to exemption easier the make to meant obviously not enacting the reason instead, the substantive was, It abuse. prevent the “ease § was only function If place. first exemption efforts the Government’s undermining without burden administrative purposes permissible list ante, no counterfeiting,” prevent written have could desirable. even necessary or been have all illustrations exempting simply administer easier far statute substantially repeal effect, requirements and size color satisfying the —in sodo demonstrates it did fact The 474, ¶ ban. ing any illustration exempt than limited more far was its intention premise Contrary to identify. administratively convenient history, legislative language, discussion, severability White’s Justice in the beginnings from its § 504 construction administrative purpose, whole unequivocally demonstrate to amendments 1920’s permit towas ban flat longstanding exemption this point of others. no purposes specified White’s to obstacle linguistic significant a rather also There “[ijllustra- restrictions size color imposes view. both With section.” provisions foregoing by the permitted tions “foregoing deleted, the requirements “publications” “purposes” any ... ob- . . . . . of. printing here, “the as relevant permit, provisions” every- they permit is, States” —that United security or ligation illus- exemption to limiting the ¶ The sentence 4.74,, 6. § thing prohibited newsworthy historical, or educational, numismatic, philatelic, “for trations is therefore albums” newspapers, journals, books, articles, purposes are meant provisions remaining exemption, heart clearly the specified certain permitting objective the central ensure only to *31 Accordingly, I agree appellants with that the list publi- cations sensibly cannot congressional reflect a intention to special confer particular status on the media listed. Instead, those words are best read as operating in necessary conjunc- tion with “purposes” provide enforcement authorities general guidance as particular to the kinds “legitimate” Congress activities protect meant to while permitting those authorities to exclude uses in media whose appearance form or present too serious a risk of fraud. On this construction, however, requirements the two are so completely intertwined as to plainly they inseverable; single constitute a statutory provision operates as integrated They whole. therefore “must stand or fall as a unit.” Cf. Planned Parenthood Missouri v. Danforth, 428 U. (1976). S. 52, 83
Ill
A
obligation
court’s
separable
leave
parts of a statute
in force is consistent
general
with its
duty
give
statutes
constructions that avoid constitutional difficulties. See New
York v. Ferber,
without face. tional at stake interests Amendment First Because Appellants Brief for Government, by the denigrated are ease neces it becomes by ignored White, but all 20, and adage importance. nature emphasize their sary to reflects words” thousand is worth picture *32 “one ex an are understanding common-sense no is there for expression of form important tremely of cursory examination a And, as substitute.15 genuine demonstrates, vividly case this issue at magazine covers especially evocative an particular is money in image of matters about communicating ideas way of powerful and sports. politics to ranging from economics concern, public conten appellants’ Contrary to Supp., 1383. at F. 539 substantially 20, a Appellants for Brief tion, kind expression of form uniquely valuable abridges a judg appellants’ that, in ground defended cannot in some ideas express same speaker can ment, way.16 curiam); (1974) (per 15 410 U. S. Washington, 418 v. Spence Cf. (1969); 503, 505-514 District, S.U. 393 School Moines v. Des Tinker describing the (1931). 359, 369 U. S. California, v.
Stromberg
difficult, as is so
is
here, it
issue
like
symbols
value
expressive
eloquence:
Jackson’s
upon
improve
case, to
often
communicating ideas.
way of
effective
but
primitive
ais
“Symbolism
institution, or
idea,
system,
some
symbolize
flag to
or
emblem
of an
use
nations, politi-
and
Causes
mind.
from mind
cut
a short
personality,
their
loyalty
knit
seek
groups
ecclesiastical
lodges and
parties,
cal
rank,
announces
The State
design.
banner,
color
flag or
following to
black
maces, uniforms
through crowns
authority
function, and
altar
Crucifix, the
Cross, the
through
speaks
church
robes; the
ideas
convey political
often
State
Symbols of
raiment.
clerical
shrine, and
person
A...
ones.
theological
convey
come
symbols
religious
just
com-
man’s
one
what is
it, and
into
puts
meaning he
symbol
from a
gets
Board
Virginia
West
scorn.”
jest
is another’s
inspiration
fort
(1943).
624, 632-633
Barnette,
S.
319 U.
v.
Education
Vincent, 466
Taxpayers
v.
Angeles
Los
City Council
g.,E.
171, 180-184
S.
Grace,
U.
v.
States
(1984); United
789, 812
U. S.
Even as Justice White would revise it, the statutory-
scheme at issue
just
here works
such a
abridg-
substantial
speech
ment of
significant
numbers of individuals who
might wish to use illustrations of
currency
for perfectly
ways
reasons and in
pose
no serious risk of
counterfeiting. Depending on which of
interpretations
two
“publications”
adopted,
such illustra-
(A)
tions are either
if
only
allowed,
at all,
when
licensed
agents
Secret Service
enforcing
utterly
standardless
statutory definition of
(B)
“illustrative” uses or
completely
prohibited
they
because
do
literally
appear “in articles,
journals,
books,
newspapers, or albums.”
Secretary
Cf.
State Maryland
Joseph
H.
Munson Co.,
A independent An “publications” requirement has not, until today, been understood as the critical element in the statu tory scheme even supra, Government. See at 674-6 *33 77.17 We therefore have little basis on which to determine (1983);Metromedia, Inc. v. Diego, San 453 490, U. S. 501-502, (1981) 516 (plurality opinion); Schad v. Ephraim, Mount 452 61, U. (1981) S. 78 (Blackmun, J., id., concurring); at 79 (Powell, J., concurring); Linmark Associates, Inc. v. Willingboro, 431 85, U. S. 93 (1977); Southeastern Promotions, Ltd. v. Conrad, 420 U. 546, S. 556-558 (1975); Spence v. Washington, supra, 411, at 4;n. State, Schneider v. 147, 308 U. S. (1939).
Aside from the fact that the Government simply has no business second-
guessing
judgments
editorial
.as to the communicative value of illustrations,
cf. Miami Herald Publishing Co. v. Tornillo,
681
tional in a
portion
substantial
of the cases to which applies,”
ante, at 650, we must consider
applies
how it
to other cases—
even if
application
appellee
may be clear.19
As I have
supra,
noted,
at
appellants’
672-673,
inter-
pretation of the statute licenses the Treasury Department to
determine, on a necessarily ad hoc basis,
given
whether a
picture appears in a medium of which the statutory list is
“illustrative” or whether, instead, its medium looks too much
like the kind of
prohibited
“facsimiles”
by
parts
statutory scheme. This
might
construction
many peo-
enable
ple using pictures of the currency
for
purposes to
avoid
liability,
criminal
but it creates precisely the sorts of
constitutional infirmities that have led the Court to invalidate
“purposes”
requirement.
As read
appellants, the
“publications” requirement vests in Secret
agents,
Service
monitoring the
variety
enormous
pictures
uses to which
the currency
put,
can be
virtually
authority
unconstrained
decide
given
whether a
imposes
illustration
liability
criminal
on its author or not. Cf. Kolender v.
supra,
Lawson,
at
358-361.20
unguided
Such
discretion inevitably poses a seri-
ous
government
risk of
discrimination on the basis of content
subject
matter. Cf. Lovell v. Griffin,
425 imposes criminal 18, in Title counterfeiting provisions construing intent, showing unlawful of any liability without deemed only uses those exempt §504 to statutory scheme the render would authorities enforcement good faith.’” act who trap those for ‘a than more “little (1979) (quoting 395 379, S. Franklin, 439 U. v. Colautti (1942)). 524 513, S. Ragen, U. 314 v. States United “publications” suggest, the appellants Accordingly, as if, kinds of “descriptive illustrative” only is meaning precise its permit and to Congress intended uses of Service by Secret judgments case-by-case to left must abridged rights are Amendment First “whose people agents, their on prohibition direct will] traded ¶ have 6, [§by 474, them to available if it is that, licensing scheme activity for discretion unguided only at available is all, at v. Maryland Secretary State Service].” Cf. [Secret On 12. n. S.,U. Co., 467 Joseph Munson H. today uncon- is upheld statutory scheme interpretation, apparent [is] “because face its on stitutional attempt unaccept- create legislation such enforce Los City Council ideas.” suppression of risk of able (1984) 797 S.U. Vincent, 466 Taxpayers Angeles v. for supra, at Lawson, v. omitted). Kolender also See (footnote n. 8.21 358-359, (“It (1940) is 88, 97-98 S. Alabama, U. v. Thornhill threat pervasive but censor by the power abuse sporadic
merely the dis freedom danger that constitutes very existence its inherent may therefore asking a license had have might who One cussion. prosecuted he is licensing when scheme whole question into call (“We (1938) 444, 451-452 U. S. Griffin, it”); Lovell procure failure which motive Whatever face. its invalid ordinance think very founda at the it strikes such character its adoption, its induced censorship”); license it subjecting press freedom tion (“A (1931) 359, 369-370 U. S. California, Stromberg v. as indefinite vague and construed, is so authoritatively face, upon politi- free [for opportunity [the] use of fair punishment permit
683
B
Insofar as his opinion'reveals, however, Justice White
appears to assume that the list of media is not “illustrative”
appellants
suggest, but rather strictly limited to “articles,
journals,
books,
newspapers, or albums.” See ante, at 649,
n. 5, 650, and nn. 6 and 7. Assuming, arguendo, that so
construed the list of media is sufficiently
prevent
definite to
arbitrary enforcement,22it presumably excludes illustrations
of the currency
regard to size,
—without
capacity
color, or
deceive—on such
placards,
items as
pamphlets,
billboards,
bumper stickers,
posters,
leaflets,
artist’s canvasses, and
signs. Unlike Justice White,
I have little trouble conclud-
ing
by
that,
imposing
liability
criminal
persons
making
such illustrations
without
showing of unlawful intent, the
prohibition
by
created
“publications”
penal
renders this
scheme “‘susceptible
sweeping
improper application.’” Bigelow
Virginia,
v.
421 U. S.
(1975)
809, 816
(quoting NAACP v. Button,
of a proudly child displaying his grandparent’s birthday gift of a green, $20 bill; a six-foot enlargement of portrait of George Washington on a bill, $1 used as theat- scenery rical by high a school copy drama club; legend, ‘In God We Trust’, on the by leaflets distributed those oppose who Federal aid to finance abortions; and a by three-foot placard five-foot bearing an artist’s render- ing of a ‘shrinking’ dollar by bill, striking borne worker cal discussion] is repugnant to the guaranty of liberty contained in the Fourteenth Amendment”). See generally Colautti Franklin, 439 U. S. (1979). is,
22 There
however, much truth in the District Court’s observation that
“[t]he definition of a journal, newspaper or album anyone’s
game to
play.”
currency —strains expres- statutory form of aon ban degree a to which may interests legitimate state substantially furthers sion exceptions.26 As its consideration assessed be often reinterpret would enacted, originally and White arbi- riddled here statutory at issue scheme it, activities unlawful and lawful trary between distinctions substantially scheme appellants’ claim undermine Pictures legitimate interests. the Government's furthers “nonpubli- undefined, class but broad, in the appearing manner regard their prohibited without are cations” capacity to composition, or shape, color, size, production, by “publishers,” pictures manfactured But anyone. deceive counter- useful to more presumably be facilities whose slides as color well Appellants 21-22, as Brief for feiters, see permitted. §504(2), Like- currency, are pieces of actual may be quality paper stock newsprint or appearing on nesses plastic, or wood, made those not apparently but allowed, currency painted portion picture a small A cardboard. prohibited, a while sign is protest appearing on orange negative can enlarged may manufacture “publisher” black natural bill print of dollar front used white.27 Environment, 444 a Better Schaumburg v. Citizens g., e. See, (plurality S., at 514 Diego, U. Metromedia, v. San Inc. 636; S.,U. at S., 72-77. 452 U. Ephraim, Mount Schad opinion); language “publications” “purposes” I believe Because intended conditions various statute’s §504(1) inseparable actual closely resemble too do exempted ensure size the color whether not consider supra, I need currency, n. see carefully crafted a more part constitutionally form could limitations constitutionality no view express I therefore statutory scheme color uphold the decision The Court’s requirements. of those vel non *41 if “publications” sum, requirement has sufficiently definite prevent content to arbitrary enforcement, the statutory upheld scheme today fatally is overbroad. The restriction in the context of this statutory scheme, however, suffers from two serious flaws that should not pass without comment.
First, Justice White upholds the statute’s apparently irrational dis- tinction between black and pictures white and those appearing in, say, pink or orange on the basis of what may be the weakest conceivable kind of legislative history. A statement by a party to this litigation submitted to days three after party had filed its notice of appeal in this Court and concerning legislation that has not been reported out of commit- tee, much passed less by either House of Congress. See App. D to Juris. Statement (transmitting to House Subcommittee statement of Deputy As- sistant Secretary of Treasury 4275). on H. R. There is no indication what- soever in the legislative history of the statute actually passed by Congress prints color were excluded because they require more negatives to produce, thereby “increasing] a counterfeiter’s access,” ante, 657, at materials that can be used illegitimately. Instead, it seems obvious that the color restriction was intended to minimize the possibility permit- ted illustrations could passed off as genuine article. See, g., e. 64 Cong. (1923) Rec. (remarks 4976 Cummins) Sen. (“Mark you, these stamps are printed to be in black and white, not in color, and they are to be defaced, so that they can possibly be used again”). Second, the post hoc justification offered appellants for the color restriction in the statute as now written cannot satisfy the requirement that “viewpoint neutral” regulations abridging speech must be narrowly tai- lored to achieve governmental substantial interests. g., e. See, City Council Los Angeles v. Taxpayers Vincent, 466 S.,U. for 808; at Clark v. Community Creative Non-Violence, ante, at 293-294; Brown v. Glines, 444 U. 348, S. 354-355 (1980); Procunier Martinez, v. 416 U. S. 396, 413 (1974); Erznoznik v. City Jacksonville, S., 422 U. at 217-218; United States v. O’Brien, 391 367, U. S. 377 (1968); id., at 388 (Harlan, J., concurring). Appellants have made no effort to appellee’s controvert claim, based on uncontested affidavits accepted by the District Court, “[w]hatever practices professional might counterfeiters be, all of Time’s four color separations of currency every contain obscuring feature distortion picture, ultimate and thus are useless to the counter- feiter.” (footnote Brief Appellee 44 omitted). See 539 F. Supp., at and n. 19. See generally H. Simon, Color in Reproduction 59- 65 These distortions demonstrate that, contrary to Justice assertion, post, at 700-701, Time does wish to use “illustrations Stevens’ counterfeiting in regulating provisions detailed extensive eccentric numerous as well parts Title demonstrate here issue the statutes exceptions to variety wide aon provisions penal by these imposed ban flat counterfeiting danger of no conceivable posing expression pro- necessary or essential “‘greater than far involved.’” interest governmental particular tection (1984) S. Rhinehart, 467 U. Co. Times Seattle (1974)). *42 396, S.U. Martinez, 416 Procunier (quoting > sus- statutory scheme acknowledge, the appellants As publishers in which manner “regulates the today
tained Stevens’ Justice spurious.” appear plainly currency which of air- negatives, enlarging numerals, trimming “patient” counterfeiter — better far obviously be 5—would n. borderlines, post, brushing to coun- trying somehow than bills dollar actual photocopies making off pictures distorted produce to used negatives money terfeit light of And, in magazines. appellee’s appearing [permitted] making used plates negatives “the 504(l)(iii) that this with in accordance use final after their destroyed shall illustrations preventing interest Government’s how to see is difficult section,” it requirement. color by the advanced further is negatives multiple access prohibit does however, the Government significantly, Perhaps most plates produce printer allowing a therefore, generally; printing color currency cannot of the portions pictures only distorted print can that creat- “alibi” an additional with employees his or him provide possibly Nothing in currency. facsimiles realistic produce can ing plates printer ability aof today diminishes upheld statutory scheme 17624-17625 Cong. Rec. plates. such create intentions unlawful time when aat (Section enacted 504 “was McClory) Rep. (remarks of (1981) skilled highly few comparatively the domain was publishing quality large in color by [today] is publishing Quality . . . professionals. circulation, a wide in such skills technology. With an elite longer no legitimate, only a burden is reproduction color against restriction Govern- compelling Conversely, the printer”). law-abiding illus- manufacture prevention in this at stake interest case— ment fully served counterfeiting be used might plausibly —is trations pass to make a crime make 18 that Title provisions numerous 25, supra. nn. currency. See really like look materials may depict every an item person every day.” sees Brief for Appellants 33, n. 24. As by Congress, enacted regula- tion took the form of prohibiting any depictions such unless they were philatelic, “for numismatic, educational, historical, or newsworthy purposes.” In an admirable effort to sustain this scheme, Justice “construes” Stevens language so it means essentially nothing: Notwithstanding the “purposes” requirement purports he uphold, any likeness currency permissible unless it is used for counter- feiting. in contrast, acknowledging that Justice White, “purposes” language cannot be “saved,” offers a new statute that would limit the publishers, activities whose capacity technical engage in actual counterfeiting is thereby diminished not one whit, and that would completely ban “nonpublishers,” presumably who have no such capacity in place. the first Congress The scheme adopted plainly unconstitutional; pieces the alternative legislation proposed by Justice White and bear little resemblance to Stevens the statutes passed.
I do not doubt that a statute can be written that would satisfy both requirements the of the First Amendment and effectively advance the important and ends Con- gress sought to achieve in §§474, Today’s ¶6, and 504. efforts to draft such a statute have, however, confirmed the leaving wisdom of that task Legislative to the Branch. I would judgment affirm the of the District Court. Justice Powell, with whom Justice Blackmun joins, concurring in part and dissenting part. agree I reasoning the holding and the of the Court “purposes”
that the §in contained 504is uncon- stitutional. I agree do not with the Court’s conclusion that policies “the Congress sought by enacting § to advance can be though effectuated even purpose requirement the is unenforceable.” II-B(l) Ante, at 653. As Part of Justice opinion explains, Brennan’s plain language the legisla- and pro- that Congress enacted § that history confirm of 504 tive otherwise exempting, the purpose of sole vision currency, illustra- likenesses comprehensive ban “pur- purposes. specifically identified serve that tions plan. statutory to the is essential therefore, clause, poses” my view, Court, as the unconstitutional, is clause that If agree with I invalid. statute entire holds, properly simply “errs White Justice that Brennan Justice using words and statutory language deleting crucial of his own new for a materials raw remain that 673. making.” Ante, at judg- concurring in the opinion in his Stevens, Justice in favor arguments strong policy part, advances inment post, at restrictions. size color upholding the not I do case, my view n. Under 6. 701-703, and may assume one further I note issue. reach enact promptly to necessary move Congress —would —if carefully statute. drawn more 504(1) § clause “purposes” I believe sum, enacted have would unconstitutional, I, clause. §504 without provisions remaining judg- affirm simply invalidate therefore, reaching constitution- without Court District ment the color requirement or “publication” ality either restrictions. size part judgment in concurring in the Stevens, part.
dissenting prohibition constitutionality challenge to the Time’s proceed on currency might making likenesses against Time’s if even First, *44 theories. quite different of two either rather protected adequately ability communicate to pictures com- publications that contain exception for complex against prohibition limitations, size plying with color exception is come within not do communications statute entire poorly defined—that so broad—or so impact of potential considering the Second, without invalid. parties, the statute on third are invalid, restrictions part, they apply or in whole to Time. Given this stat- express exception expression may ute contains an fully rights, accommodate Time’s First I Amendment think begin analysis by evaluating impact the Court should its litigant of the statute on the before the it Court before any question concerning impact confronts the statute’s parties. third
I also think that the Court should decline Time’s invitation plunge right analysis into the constitutional without pausing to determine and to whether, what a fair extent, protect construction of the statute would Time’s unnecessary adjudication interests and also avoid the questions. Treasury Department’s constitutional Most ofthe pictures currency—and criticism of Time’s use of I believe reproductions—stemmed all its criticism black and white regard reading from what I as an incorrect of the word §504(1). “newsworthy” Although recognize I reading not Government has been consistent in its of that any ambiguity readily word, could have been eliminated declaratory judgment construing the term. Time, however, did ask the District Court or this Court for a favorable construction of the Instead, statute. as is the litigation, current fashion First Amendment cf. United (1983), Grace, 461 U. S. it States asks this Court to confusing constitutionally adopt questionable the most interpretation fortify it could in statute that order to challenge. its constitutional
I Plainly rely there is no need on the “overbreadth” support standing challenge the con- doctrine Time’s widely stitutionality publisher of this statute. Time is magazines. perfectly circulated news record makes ability impairs clear that communicate with by using public small, some illustrations that include but currency. reproductions of There can colorful be no doubt *45 challenge statute’s standing to appellee’s concerning any color may not use money of pictures that requirement three- than less either must white except black actual of the size times a half one than more or fourths rights are Amendment First own Time’s coins. or bills implicated. clearly are this statute problems Time’s thatme clear isIt exception that fact slightest in the exacerbated not require- “purpose” by a limited prohibition blanket as or, requirement Bren- “publications” ment concepts. merges both requirement single argues, a nan picture provision, of proper construction Under “news- qualify as disseminate will money Time well requirement purpose satisfy the thus —as worthy”—and satisfy the thus “magazine” ain being contained —and as constitu- evaluate Thus, requirement. publications they affect restrictions size color tionality significance unnecessary to consider wholly it is Time, purpose or publications either Metromedia, Inc. Cf. Court. before not are parties who J., (1981) (Stevens, 542-548 U. S. Diego, 453 San (opinion of 649-652 ante, also part); see dissenting in ac- have might the statute J.). short, while White, all rights Amendment First adequately commodated abridging Time’s successfully avoided it has if individuals, has exception, Time through press speech or freedom regarding parties rights third championing the stake no issues. these
II
one
no
occurred
probably
adopted,
§474 was
When
communication.
limited
presumed
§474
enacted
Congress post-Civil War
currency
likenesses
photographing
printing
anyone
currency for
images
use
good. The
up
no
was
too eso-
probably
was
purposes
communicative
legitimate,
*46
teric to be
significant
deemed
or realistic in the
century,
19th
and it was of the utmost concern to assure
integrity
greenback
value of the
under
—itself
attack on constitutional
grounds
being
inherently worthless and not suitable as
legal
Legal
tender, see The
Tender
(1871)
Cases, 12Wall. 457
(overruling Hepburn v.
(1870)).
Griswold,
Section 474, to the prohibits extent it expression at all, only does so inadvertently incidently. object of § plain 474 is nothing has whatever to do suppress- with ing dissemination of ideas on the basis of anything content or prohibition else. The plainly is not any “aimed at restraint speech freedom of . . . .” Cox v. Hampshire, New U. S. 569, 578 It image dedicates Congress selected currency for our to the use for which lawfully it is prohibits intended and all making others from likenesses of image. Section 474 itself does not turn on the content subject matter of message speaker a might wish to convey; it significant serves a governmental interest; and it open leaves alternative channels for communication of the subject information. It is grounds attack on the that it governmental serves the interest too imprecisely justify the incidental effect on § communication. In short, 474 is a restriction on the manner expression, and if it would suffer infirmity, constitutional presumably it would ground that it is “overbroad.” provision This stood on the nearly books for century without modification or challenge, but as the passed, decades and the instruments of mass multiplied communication became sophisticated, more expression free clashed with §474. The image familiar of United currency States became powerful symbol, point to the perhaps becoming some- what of a modern icon. So embedded is the freedom speech press governmental in our institutions suggestion no overt of a infirmity constitutional in 474, Treasury Department adopted practice, without statutory evident authority, making exceptions from the aon expression free interest prohibition broad case-by-case basis. whatever narrow attempt Congress’ Section accommodate sought to §474: infects
“overbreadth” currency free symbol using the interests its Important as marketplace ideas. expression course is of however, communication is, symbolic value purpose primary image purpose of primary —its function governmental A core exchange transactions. use *47 the of compelling nature the case, in implicated is Art. that Congress fact by the demonstrated is interest Government’s empowers expressly Constitution the § of6, cl.8, I, counterfeiting Secu- the of Punishment the provide “[t]o dispute States.” United the of Coin and current rities governmental strength of over not is case in this by the it is served to which extent rather but interest, a however, my view, In question. in provision specific strong governmental particularly a implicates which degree to same to interest serve not need interest interest if the scrutiny itas constitutional withstand interest Similarly, effectuation weaker. were expres- on intrusion nearly if so, perfect, or be not need minimal. is sion interests, competing reconcile attempt to Congress’ § applications impermissible possibly eliminate legislates Congress respect. When great entitled First accommodate prohibition general a exceptions to grudging adopt a should we interests, Amendment liberally con- should but exceptions, interpretation Congress purposes. remedial their effectuate them strue Amendment; First spirit of the exception in the adopted There fashion. same them construe should courts constitutionality Act an favor presumption S. Goldberg, 453 U. g., Rostker e. See, Congress. salient particularly should presumption (1981). This goes far face its statutory scheme regarding stake expression at free accommodating interests in a statutory scheme legitimately directed at a serious substantive evil. Generally, of course, we construe Congress Acts of avoid questions. constitutional g., See, e. United States v. Clark, 445 U. S. 23, 27 This maxim of construction merely is not based on a desire premature to avoid adjudica-
tion of constitutional issues. Like others, the maxim also judicial reflects a presumption concerning the intent of the draftsmen of the language question. In areas legis- where might lation intrude on constitutional guarantees, we believe that Congress, which also has protect sworn to the Constitu- tion, would intend to err on the side of fundamental constitu- tional liberties when legislation implicates those liberties. In this case, this belief is no presumption. mere Congress recognized, as had the Executive Branch years, expressive value image of the currency and determined that 474 undermined such expression, sweeping within its prohibition identifiable, uses image. §504, sought to excise the surplusage from the prohibition broad §474 to ameliorate the overbreadth *48 provision. of that Appellee does §504 not attack as argues overbroad—it that it is not broad enough. Stated way, another appellee contends impermissible that the ap- plications of §474, even large with the exception carved §by out permissible dwarf the applications. Appellee Congress maintains that failed attempt its to accommodate First Amendment interests. Specifically, it purposes attacks the requirement and essentially contends that it has a First right Amendment to take photo- color graphs of United currency States long so as specific the pictures publishes it passed cannot be off as thing. the real
Ill Purposes Requirement
The Court devotes little attention to the constitutionality of purposes the requirement, brushing attempt aside Congress to reconcile the interest in expression free with re- protect- interest currency the with the images of spect to aIn purpose. primary image integrity that of ing the news- of a determination that simply told we are paragraph, currency image the of anof value or educational worthiness the message the of content the on based be must newsworthy in message is if determine will Government the Then exception. the of applicability determining the regulations sweeping statement the makes Court of basis the on discriminate to Government the permitting Amendment.1 First the of per se violative are content a Government give the provision interpret the I do the value the newsworthiness the determine license it the giving Rather, conveyed. being message substantive is question the deserves, I think construction liberal a such currency is used image the the merely whether being image is the way, whether another stated purpose, or permit which “Regulations following statement: the makes Court message the content the basis on the discriminate Government Ante, 648-649. Amendment.” First under tolerated cannot purposes invalidation summary The Court’s light disturbing in particularly statement sweeping of this basis similar striking a language similar quite employed Congress fact under interest governmental a expression free between balance 8, of the I, § authority of Art. express Pursuant Act. Copyright vests generally copyright established Constitution, the work. author original works reproduce right exclusive work, reproducing right infringes that who One § 106. C. U. S. This broad §506. see prosecution, to criminal subject 501(a), is see use” of “fair may make Individuals however, qualified. prohibition, comment, news criticism, such purposes “for works copyrighted § 107. .” . . . research scholarship, or , . . . teaching reporting, use fair suggested seriously been never has knowledge, it myTo because Amendment First is violative Act Copyright provision *49 con- the basis decisions to make authorities governmental allows expression free interests recognized have Indeed, we tent. Corp. Sony generally to serve. intended was provision use fair 450-451, 27, n. 445-446, and S. Studios, Inc., 464 U. City Universal to were opinion today’s language broad If 40n. 454-455, and suspect. highly be provision literally, perhaps applied be used convey express information or an idea.2 That re- quirement easily image met—whenever the is used in con- nection with a news article, it necessarily comply will with this condition unless the editor’s image use of the bears no rational relationship to the information or idea trying he is convey.3 key point is that he must attempting be 2Cf. Schacht v. States, United U. S. 61-62, (1970)(inter n. 3 preting exception from statute making it a crime for a civilian to wear a United States military uniform for “an actor in a theatrical or motion- picture production” to be applicable to a protester in a dramatic street demonstration). 3The legislative history is consistent my view that Congress, by use of the term'“newsworthy,” simply intended to exempt pictures of the currency used connection with articles in publications. The House and Senate Committee Reports, quoted by Justice White, stated that “ ‘[njewspapers quite often publish pictures of paper money or checks connectionwith news articles,’” ante, at 655, (citations n. 10 omitted), and plainly that connection was deemed sufficient the Congress to invoke the exemption. Time’sanalysis of this statement in legislative history is typical of its approach to this litigation. Incredibly, Time asserts that the need members of press report the news was “[c]uriouslyabsent” from the list legitimate purposes set forth in the Committee Reports, interpreting the language quoted as a mere passing observation. Brief for Appellee 8, n. 10. Time thus asks this Court to ignore plain import of language of the statute and the legislative history language which was — plainly intended to benefit publications such as Time—and actually argues for a construction against its interest.
The history §of 504 makes it rather clear that Congress intended to exempt pictures uses of of money that serve legitimate purpose and that pose no significantthreat of counterfeiting or fraud. The proc- democratic ess through § which 504 was crafted in list, resulted expanded from time time, of exempted uses largely coterminous with uses that actual experience demonstrated were substantial. The fact not still broader is part attributable in to the fact experience did demonstrate a substantial need other exceptions. apt This is an case for remembering the words of Justice Holmes: “Great constitutional provisions must be administered with caution. play Some must allowed joints for the of the machine, and it must be remembered legislatures are ultimate guardians of the liberties and welfare of the people quite *50 700 pro- expression symbol as using the be must he
communicate: reproducing merely not and Amendment, First the tected purpose, noncommunicative currency for some images the of counterfeiting.4 g., facilitate to e. Requirements Size Color in the contained illustrations cover respect the With inis interest Time’s appear that it would case,
record currency, the the of realistic reproducing commu- the effective more illustration, realistic more May, 194 v. Co. T. R. Missouri, &K. courts.” as the degree a great 267, 270 U. S. will § 504 scope of interpretation fair a that me clear It seems currency and of reproductions of uses substantially legitimate all involve itself request purpose Moreover, the illegitimate. are that those exclude negatives with printer finds Treasury agent aIf sense. surely makes determine appropriate is inquiry an possession, currency in his of to serve. intended were negatives those purpose re- “purposes” of my construction of critical is Brennan Justice legitimate between distinction a broad draws § which quirement that think seems currency. He reproductions uses illegitimate rewrit- “judicial is “newsworthy” mean “newsworthy” to word reading the ” exempt “ toit to construe purpose’ ‘pervertís] ing” and or attention to the called been had uses 663-664, 1. n. ante, enacted. it was before Department Treasury accepted has Brennan suggest I respect, due all With constitu- alluring waters headlong into the plunge invitation Time's most unfa- light in the language crucial construes analysis. He tional plum constitutional larger still toward eye with to Time vorable ironically invalidated, then is § 504 itself, when § 474 horizon — inseverability grounds. grounds on overbreadth either to attack subject g., counterfeiting, e. advocate is to conveyed to be idea However, if the a clear presents speech manual, and counterfeiting aof publication evil, speech substantive about bringing danger present Amendment. the First under unprotected pic- printing simply interest no expresses noted, be Time, it should de- not we need hence message; any money unconnected tures no bill, expressing a dollar photograph unadorned whether cide exception. by the covered bill,” would is a dollar “this than message not does purposes I believe because note I should severability issue. reach Amendment, doI First offend *51 nication. However, very heart of the Government’s grows interest stronger the more realistic the illustration is. Stated way, another Time does not want to use illustrations of the currency which plainly appear spurious; the Govern- precise ment’s legitimate interest permit is to only those illustrations which do plainly appear spurious. Time notes that one pictures of these may be worth a thousand words; the Government notes one pictures of these negatives may be worth a thousand dollars. Time particularly objects to the color —it print wants to pictures of money in its actual color.5 Time’s communicative interest in printing pictures of the currency in color seems weak.6 We are not told that use of the actual 5A color other than the actual color, or one similar it, to might be com municative under some circumstances, but the record does not indicate that Time has any interest in using other colors. Time may argue, how ever, that the black and white requirement is overbroad on the ground that it is irrational as applied color other than a color similar to the actual color of the currency. But the legitimate sweep of the statute dwarfs its arguably impermissible applications because it seems quite plain that ordinarily it is the actual color which would be selected most often. This conclusion is supported not only by the record this case, but common sense as well. Time, it should noted, be argues that in most cases the expressive qual- ity of illustrations of the currency derives principally from artistic interpre- tation and distortion of the image, and therefore states that “an actual-size, true-color, unembellished picture of a dollar bill ... is of little use to journalists.” Time’s Brief for Appellee 3. If that true, is Time seems to be conceding it has little interest in challenging the color and size limita- tions, or stated another way, the color and size limitations have a de minimis impact on its ability to communicate effectively. 6The front of United States currency is very not colorful in any event. Aside from the serial numbers and the Seal of the Department of the Treasury, which are a rather green, vivid the rest of the image borders on being black and white itself. The difference between printing a black white image of it and and color image of it would have a de minimis impact on the value of image for communicative purposes, compare App. 17 (black and white likeness of a thousand bill) dollar with an actual one dollar bill, but would a significant have impact on the value of the image for fraud ulent or deceptive purposes. While it may be that only the most gullible com itself, aside idea expresses an currency color currency. But color about municating information ideas substantive necessary to communicate not is the size than any more convey, attempting Time size. showing actual communicated must bill mes anything to if little adds color actual bill’s use especially currency itself because particularly sage, colorful. to be requirements, size meets reproduction A decep- preventing interest Government advances sure, *52 well, as interest the advances requirement color the tion, but requirement. size the of independent is that manner ain evil the likelihood the reduces requirements Imposing both greater extent to a prevent desired legitimately Congress requirements. the just one imposing than is requirement color that Time, does argue, as To Time well. as requirement the size invalidate invalid some because invalid is requirement color argues that yet “none requirement color violate its covers other- deception or could capacity for remotest has them 43. Appellee for Brief counterfeit.” a to make used be wise violated covers if made be could argument The same arguing points to Time reasons The requirement. size fraud— for instruments as real risk pose no covers its covers, paper used kind as factors such or obscured partially are bills images of fact both violated if Time applicable equally be distorted —would whatever point is The requirements. size color deception is instruments as have covers capacity nickel —could wooden proverbial take indeed might who us —those among cover magazine Time a cutout accepting into duped possibly thou- as a color and same size same were the if even article genuine only printed and is paper kind of different on a isit bill, since dollar sand negatives existence thought apparently side, one counterfeiting. threat real pose a plates color necessarily if enhanced the bill is shown in its actual color, just as it is enhanced if the reproduced bill is in its actual size. Moreover, Time ignores all but potential variety of ways negative which a could be illegitimate used pur- poses. The requirement size meaningless, always met, respect negative. to a point, of course, is that a negative print that makes a meeting the size can also print make a the exact size of a bill. If it is a black and negative, white all that produced can be is a black and white reproduction of the if bill; it is a negative, color a color re- production may be made. The fact that the bill partially obscured in the photographs or even negatives in the is not dispositive; prohibits the statute making photographs color parts even of bills for a reason.7
The statute at issue in this part case is but one compre- of a hensive scheme to be sure; but that cannot suscepti- render it ble to ground invalidation on the portions the other largely the scheme governmental meet the interest. The fact that there are other statutes punish available to counter- feiters negate does not the Government’s interest here; Congress may provide statutory “alternative pros- avenues of *53 ecution to assure the protection effective of one and the same interest.” United States v. O’Brien, 391U. S. 367, 7 If the numerals on the bill are not obscured, for example, a nega color of tive that bill could be used reproduce to copies of those numerals in the correct size and in color on paper resembling that used in real currency and then affixed to a lower bill, denomination airbrushing the borderlines to complete deceptive instrument. Moreover, it is no answer say to for given photograph in used preparing any given cover, all of the cor ners shown, are not they as are, for example, in the hundred dollar bills shown in Exhibit F to the complaint, App. 23. All of the numerals may not be necessary for perpetrating fraud; a patient and the counterfeiter or con-artist in the printshop may bide time, his making prints from nega tives as they become available. It is no say answer to the criminal would do better to take his own color photographs, ante, see at 688-690, n. in for doing so he violating this statute. as gullible as well protects the statute This perfect near until wait need the Government and shrewd, act. presses to rolling off forgeries are arsenal weapon an in one conclusion, defrauders and counterfeiters deprive would-be designed to strength of given the deception and, tools of constitutionality which presumption interest state size the color Congress, I believe ofAct to attaches requirements minimizing risk methods permissible are only mini- a counterfeiting, have can aswell fraud effectively. ability communicate Time's impact on mal “Congress do can argues, that Time may be, as well It pres- counterfeiting than preventing job in better much question Appellee 46. Brief §474 §504,” ent done have could is not whether course, us, right to Time’s job it violates did whether job, but better sym- publish the is free Time not: It expression. does free messages it wishes express the publish and wishes itbol comply with merely must symbol; it convey use are symbol which printing that manner restrictions interests governmental strong to the reasonably related likenesses deceptive uses counterfeiting and preventing currency. part, Court judgment of Accordingly, I concur part. dissent