taking action to prosecute him under 18 U.S.C. §§ 471-509, (b) taking action to interfere with plaintiff's artistic work, and (c) damaging or destroying his possessions; (2) direct defendants to return all property that was seized by the Secret Service; and (3) award compensatory damages to plaintiff for interference with and injury to his property. Compl. at PP 10-11.
The defendants contend that sections 474 and 504 constitute reasonable time, place, and manner restrictions upon free speech. Defendants suggest that the goals of these provisions are to prevent counterfeiting and to preserve and maintain the integrity of the currency system of the United States. Defendants argue that they are constitutional facially and as applied to plaintiff. The government suggests that they have tailored minimal restrictions aimed at the manner or style in which money is illustrated rather that to the content of illustrations of United States currency. They maintain that the First Amendment does not guarantee to plaintiff the right to illustrate money as a symbol in precisely the manner plaintiff happens to consider most effective. Defendants also challenge the existence of any case or controversy between plaintiff and defendants.
A. Standard of Review
A district court may grant summary judgment if it is clear that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment is appropriate only if "the evidence is such that a reasonable jury could not return a verdict for the nonmoving party." Washington Post Co. v. U.S. Dep't of Health & Human Servs., 275 U.S. App. D.C. 101, 865 F.2d 320, 325 (D.C. Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). Rule 56(c) dictates that "the mere existence of some alleged factual dispute between the parties shall not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). For purposes of evaluating a motion for summary judgment, the facts must be viewed in the light most favorable to the nonmoving party. Id. (citations omitted).
B. The Merits of the Summary Judgment Motions
1. Constitutional Challenges to the Statutes
This court now faces a task similar to the one the Supreme Court faced in the case of Regan v. Time, Inc., 468 U.S. 641, 82 L. Ed. 2d 487, 104 S. Ct. 3262 (1984). In that case, Time, Inc., the publisher of several popular magazines, challenged the validity of sections 474 and 504. Over the course of many years, Time, Inc. was advised by Secret Service agents that particular photographic reproductions of currency appearing in its magazines violated these provisions. Nevertheless, Time continued to use the reproductions. Id. at 646. The cover of the February 16, 1981, issue of Sports Illustrated featured a color photographic reproduction of $ 100 bills pouring into a basketball hoop. The Secret Service informed Time that the illustration violated federal law. The Service demanded seizure of all plates and materials used in connection with the production of the cover. The Service also requested the names and addresses of all involved in the preparation of the cover. Time initiated a suit remarkably similar to the present action, seeking a declaratory judgment that sections 474 and 504 were unconstitutional on their face and as applied to Time, as well as an injunction preventing the defendants from enforcing or threatening to enforce the statutes. Id.
In the plurality opinion of the Court, authored by Justice White, the Court determined that the "purpose" clause of section 504 was unconstitutional, failing as a valid time, place, and manner regulation because it discriminated on the basis of content. 452 U.S. at 648. Nevertheless, the Court found neither section 474 nor the entirety of section 504 to be unconstitutional on its face or as applied to Time, Inc. Id. at 659.
However, that decision is not dispositive on all of the issues raised in the present case. Moreover, since the decision in Regan, section 504 has been rewritten by Congress in an attempt to remedy the unconstitutional portions of the statute struck down by the Supreme Court's pronouncement. Today, this court reviews the current statutory provisions to determine whether they can survive constitutional scrutiny on their face or as applied to Boggs.
As a threshold matter, a court should determine whether the speech at issue is covered by the First Amendment. Time, Inc. v. Regan, 539 F. Supp. at 1382-83. In so doing, the court "must look to the content of the expression." Id. at 1383 (citations omitted). "The image of money is a powerful, expressive symbol, of significant value" in the communication of ideas. Id. "It is, to state the obvious, a particularly effective symbol for the communication of ideas about money itself." Id. It clear that plaintiff uses his illustrations of money to illustrate and question "the meaning and uses of art and money in everyday life." Boggs' Aff. P 7. Boggs' use of illustrations of money are "intimately related to the expression and communication of [his] ideas." Time, Inc. v. Regan, 539 F. Supp. at 1383. The publication or printing of illustrations of United States currency is protected speech under the First Amendment of the Constitution. Therefore, Mr. Boggs has a First Amendment right to create illustrations of United States currency absent constitutionally permissible overriding considerations.
Plaintiff challenges the constitutionality of the statutes at issue in this case. Plaintiff bears a heavy burden in seeking to have sections 474 and 504 declared unconstitutional on their face. As the Supreme Court stated in United States v. Salerno,
A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exist under which the Act would be valid. The fact that the . . . Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.
481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). Moreover, a statute carries a presumption of constitutionality. North v. Walsh, 656 F. Supp. 414, 420 (D.D.C. 1987).
"Because of the interrelationship of sections 474 and 504, the ultimate constitutional analysis must be directed to the impact of these sections in tandem." Time, Inc. v. Regan, 539 F. Supp. at 1385. Criminal liability is only imposed under section 474 when a likeness of United States currency fails to meet the requirements imposed by section 504.
The exceptions in section 504 apply "notwithstanding any other provision of this chapter," including section 474. "Thus, if the restrictions imposed by § 504 sufficiently accommodate . . . First Amendment interests, both statutes must be upheld." Regan v. Time, Inc., 468 U.S. 641, 647, 82 L. Ed. 2d 487, 104 S. Ct. 3262 (1984). This court therefore begins with an analysis of the restrictions imposed by section 504.
In Regan, the government attempted to justify the restrictions imposed by section 504 as a reasonable time, place, and manner regulation.
Under that statutory scheme, a person could create illustrations of currency if the reproductions met the purpose, publication, color, and size requirements set out in section 504(1). Under the "purpose" clause, one could create an illustration of currency if made for "philatelic, numismatic, educational, historical, or newsworthy purposes." According to the "publication" clause, these illustrations were appropriate for publication in "articles, books, journals, newspapers, or albums." In addition, any permitted illustrations had to meet various size and color restrictions.
Plaintiffs argued that the purpose requirement of section 504 was not a valid time, place, and manner regulation because it discriminated on the basis of content, and the Supreme Court agreed. The Court held that "[a] determination concerning the newsworthiness or educational value of a [reproduction] cannot help but be based on the content . . . and the message it delivers." The Court went on to say that the legality of the reproduction was often "dependent solely on the nature of the message being conveyed." Regan, 468 U.S. at 648 (quoting Carey v. Brown, 447 U.S. 455, 461, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980)). The Court reiterated its position with regard to regulations affecting First Amendment rights:
Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.