REGAN V. TIME, INC., 468 U. S. 641 (1984)

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U.S. Supreme Court

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

Regan v. Time, Inc.

No. 82-729

Argued November 9, 1983

Decided July 3, 1984

468 U.S. 641


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

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

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

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

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

JUSTICE WHITE delivered the opinion of the Court with respect to Part II-A, concluding that § 504's purpose requirement is unconstitutional. It cannot be sustained as a valid time, place, and manner regulation because it discriminates on the basis of content in violation of the First Amendment. A determination as to the newsworthiness or educational value of a photograph cannot help but be based on the content of the photograph and the message it delivers. Under § 504, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message in one is newsworthy or educational, but the message in the other is not. Pp. 468 U. S. 648-649.

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

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

Page 468 U. S. 642

meeting that requirement, and therefore its validity is of only academic interest to appellee. And where it is not clear from the record that the requirement will be used to prevent a person from utilizing an otherwise legitimate photograph, appellee publisher cannot claim that the statute is overbroad because it unconstitutionally precludes nonpublishers from making reproductions of currency even though they meet the statute's other requirements. Pp. 468 U. S. 649-652.

2. The fact that § 504's purpose requirement is unconstitutional does not automatically render the statute's entire regulatory scheme invalid. Whether an unconstitutional provision is severable from the remainder of a statute is largely a question of legislative intent, but the presumption is in favor of severability. Here, it appears that the policies Congress sought to advance by enacting § 504 -- to ease the administrative burden without hindering the Government's efforts to enforce the counterfeiting laws -- can be effectuated even though the purpose requirement is unenforceable. Pp. 468 U. S. 652-655.

3. Section 504's size and color requirements are valid as reasonable manner regulations that can constitutionally be imposed on those wishing to publish photographic reproductions of currency. Compliance with these requirements does not prevent appellee from expressing any view on any subject or from using illustrations of currency in expressing these views. Moreover, the Government does not need to evaluate the nature of the message imparted in order to enforce the requirements, since they restrict only the manner in which the illustrations can be presented. Such requirements also effectively serve the Government's compelling interest in preventing counterfeiting. Because the provisions of § 474 are of real concern only when § 504's requirements are not complied with, § 474 is also constitutional. Pp. 468 U. S. 655-659.

JUSTICE STEVENS, concluding that § 504's purpose requirement is constitutional, also concluded that the statute's size and color requirements are permissible methods of minimizing the risk of fraud as well as counterfeiting, and can have only a minimal impact on appellee's ability to communicate effectively. Pp. 468 U. S. 697-704.

WHITE, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, in which BURGER, C.J.,and BRENNAN, MARSHALL, REHNQUIST, and O'CONNOR, JJ., joined, and an opinion with respect to Parts II-B, II-C, and II-D, in which BURGER, C.J.,and REHNQUIST and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 468 U. S. 659. POWELL, J., filed an opinion concurring in part and dissenting in part, in which BLACKMUN, J., joined, post, p. 468 U. S. 691. STEVENS,

Page 468 U. S. 643

J., filed an opinion concurring in the judgment in part and dissenting in part,post, p. 468 U. S. 692.

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