Brief - Thomas Jefferson Center

United States Court of Appeals
for the
District of Columbia Circuit
No. 95-5100
J.S.G. BOGGS
Appellant,
v.
ELlAY BOWRON, et al.,
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BRIEF OF AMICI CURIAE
THE AMERICAN ARTS ALLIANCE, THE AMERICAN SOCIETY OF
NEWSPAPER EDITORS, THE THOMAS JEFFERSON CENTER FOR THE
PROTECTION OF FREE EXPRESSION, AND THE VOLUNTEER LAWYERS
FOR THE ARTS
J. JOSHUA WHEELER
ROBERT M. O'NEIL
Counsel/or
THE THOMAS JEFFERSON CENTER
FOR THE PROTECTION OF FREE
EXPRESSION
400 Peter Jefferson Place
Charlottesville, VA 22901
(804) 295-4784
COll1'lsel contitllied on inside cover
BARRY G. SZCZESNY
Counsel/or
THE AMERICAN ARTS ALLIANCE
1319 F Street, N.W.
Suite 500
Washington, D.C. 20004
(202) 737-1727
RICHARD M. SCIDv1IDT, JR.
ALLANR. ADLER
J. BRIAN DEBOICE
Counsel/or
THE AMERICAN SOCIETY OF NEWSPAPER EDITORS
P. O. Box 4090
Reston, VA 20090
(202) 293-3860
LAURA R. HANDMAN
Counsel/or
THE VOLUNTEER LA WYERS FOR THE ARTS
1 East 53rd Street
Sixth Floor
New York, NY 10022
(202) 662-2999
CERTIFICATE AS TO PARTIES,
RULINGS, AND RELATED CASES
A.
Parties
Except for the following, all parties, intervenors
and amlCl appearing in this court are listed in the Brief for
the Appellant.
Amici are:
American Arts Alliance
American Society of Newspaper Editors
Thomas Jefferson Center for the Protection of
Free Expression
Volunteer Lawyers for the Arts
B.
Rulings Under Review
The Order and Memorandum Opinion of the District
Court (Lamberth, J.), dated December 9, 1993, are reported at
842 F. Supp. 542.
References to the rulings at issue appear
in the Brief for Appellant.
c.
Related Cases
This
petition
for
case was previously before
a
writ
withdrawn as moot.
of
mandamus,
No.
this
95-5096,
Court on a
which
was
The District Court certified this case for
appeal under Rule 54(b), so a separate claim remains pending
below.
In addition, Boggs v. United States, et al., No. 95 CV
1051, was filed in the United States District Court for the
District of Columbia on June 2, 1995, seeking relief under the
Federal Tort Claims Act and the Freedom of Information Act.
That Complaint has not been answered.
ii
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
i v
STATEMENTS OF INTERES T
1
S~Y
OF FACTS
3
S~ Y
0F
3
ARGUMENT
ARG1JMENT
4
I. FIRST AMENDMENT FREEDOMS MAY BE ABRIDGED BY
THREATS AND INFORMAL PRESSURES QUITE AS MUCH AS
BY FORMAL SANCTIONS OR CHARGES
4
II. AN ARTIST'S FREEDOM OF EXPRESSION INCLUDES THE
RIGHT TO SELECT A CONTROVERSIAL MEDIUM OR THEME
8
III. RECOGNITION OF ARTISTIC FREEDOM IS ESPECIALLY
APPROPRIATE IN THIS CASE
IV. SECTION 504 IS BEING APPLIED TO BOGGS IN A
CONTENT-BASED MANNER
V. SECTION 504 FAILS AS A LEGITIMATE TIME, PLACE,
OR MANNER RES TRICT ION
CONCLUS ION
12
16
18
20
iii
TABLE OF AUTHORITIES
Page(s)
Bantam Books v. Sullivan, 372
u.s.
58 (1963) .....
Boggs v.Bowron, 842 F. Supp. 542 (D.D.C. 1993) ..
4-6,14
4,12
Finley v. National Endowment for the Arts, 795 F.
supp. 1457 (C.D. Cal. 1992)
Freedman v. Maryland, 380
u.s.
8
51 (1965)
Grayned v. City of Rockford, 408
u.s.
7
104 (1972).
7
Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, No. 94-749, 1995
u.s.
LEXIS 4050
(1995)
Kovacs v. Cooper, 336
8, 9
u.s.
77 (1949)
15
Nelson v. Streeter, 16 F.3d 145 (7th eire 1994)..
9-10
O'Keefe v. Snyder, 83 N.J. 478, 416 A.2d 862 (1980)
17
Piarowski v. Illinois Community College Dist. 515,
759 F.2d 625 (7th Cir. 1985)
R.A.V. v. City of St. Paul, 505
8,9
u.s.
377 (1992)..
Regan v. TIME, Inc., 468 U.S. 641 (1984)
19
12-16,
18-19
Schneider v. state, 308 u.s. 147 (1938)
Southeastern Promotions, Ltd. v. Conrad, 420 u.s.
* This brief does not principally rely on any of these authorities.
iv
10
546 (1975)
10
Spence v. Washington, 418 u.S. 405 (1974)
11
Tinker v. Des Moines School District, 393 u.S. 503
(1969)
11
United States v. Eichman, 496 u.S. 310 (1990)
11
West Virginia Board of Education v. Barnette, 319
u.S. 624 (1943)
10
STATUTES:
18 U.S.C. § 504 (1988)
.
STATUTES AND REGULATIONS
All applicable statutes are contained in the Brief for the
Appellant.
v
3,12-13
UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA
No. 95-5100
J.S.G. BOGGS,
Appellant,
v.
ELJAY BOWRON, et al.,
Appellees.
On Appeal from the United States District Court
for tile District of Columbia
BRIEF OF AMICI CURIAE
THE AMERICAN ARTS ALLIANCE, THE AMERICAN SOCIETY OF NEWSPAPER
EDITORS, THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE
EXPRESSION, AND THE VOLUNTEER LAWYERS FOR THE ARTS
STATEMENTS OF INTEREST
The American Arts Alliance
America's
professional,
is
the principal
nonprofit
artists, and their publics.
arts
advocate
organizations,
for
their
As such, it advances support for the
arts and wishes to do so in this case.
The
American
Society
of
Newspaper
nonprofit organization based in Reston,
than
fifty
years,
has
assisted
Editors
(ASNE)
Virginia that,
journalists
in
is
a
for more
providing
an
unfettered and effective press
people
and
has
further
in the
worked
to
Amendment rights for every citizen.
service of
promote
and
the American
defend
First
ASNE has filed briefs amicus
curiae in state and federal courts in a wide variety of cases,
seeking
recognition
and
affirmation
of
freedom
of
press
and
freedom of speech.
The
Thomas
Expression
Jefferson
is
a
Center
nonprofit,
for
the
Protection
nonpartisan
of
Free
institution
in
Charlottesville, Virginia, whose sole mission is the safeguarding
of freedoms of expression defined in the First Amendment of the
Uni ted states Consti tution.
in
several
ways,
administrative
including
bodies,
The Center has pursued its mission
testimony
public
before
statements,
and
litigation that may effect free expression.
briefs
amicus
curiae
in
state
and
legislative
and
involvement
in
The Center has filed
federal
courts
in
a
wide
variety of cases, seeking recognition and affirmation of freedoms
of speech and press.
endorsed
Nancy
this
Landon
brief,
Although the Center's Board of Trustees has
it
should be
noted
Kassenbaum,
abstained
from
that
Center
participating
Trustee,
in
this
matter.
Volunteer
Lawyers
for
the
Arts
(VLA)
organization based in New York City that,
five years,
is
a
nonprofit
for the past twenty­
has provided free legal services to visual artists,
photographers, and other artists and arts organizations unable to
2
afford them.
VLA also supports artists'
rights,
and has
filed
briefs amicus curiae in cases where those rights are -- as here ­
- at issue.
SUMMARY OF FACTS
Amici curiae adopts the Statement of Facts contained in the
Brief for Appellant.
Sill1l1ARY OF ARGUMENT
This case raises important issues of artistic freedom and free
expression
under
Constitution.
the
First
Amendment
sanctions
the
United
An acclaimed and established artist,
an unusual medium of expression,
government
of
agents,
that
and
never
has
states
who has chosen
has seen his works impounded by
been
materialize.
persistently
He
has
threatened
found
display of his works to be increasingly difficul t
the
sale
with
and
and hazardous.
While no artist has been jailed or fined here for creating work of
which
the
government
disapproves,
the
threat
to
the
creative
process and free expression is no less great.
The
artist
has
repeatedly
through less formal channels.
plea to the federal courts.
sought
redress
and
vindication
Finally, in desperation, he took his
Those courts should afford relief to
an artist whose only possible offense seems to be his choice of
United states currency as his theme or medium.
3
While there have
been suggestions of possible confusion and deception in his use of
currency,
such
suggestions
Moreover,
the
consistent
criminal
acts
confirms
find
failure
such
no
to
doubt
support
charge
about
the
the
in
the
artist
presence
record.
wi th
any
of
the
asserted government interest.
Amici curiae will offer five arguments in support of reversal:
First, that First Amendment freedoms may be abridged as gravely by
threats and informal pressures as by formal charges and sanctions;
second,
that an artist's First Amendment rights include the choice
of medium or
theme;
third,
that
the
circumstances
especially warrant such constitutional protection;
U.S.c. §504
manner;
(Supp. V 1993)
and fifth,
that
of
this
fourth,
case
that 18
is being applied in an unconstitutional
18 U.S.C.
sec.
504
is not
a
legitimate
time, place, or manner restriction.
Amici curiae also adopts the arguments put forth in the Brief
for Appellant, particularly that the First Amendment does not allow
criminal
responsibility
to
be
imposed
without
some
element
of
scienter on the part of the defendant.
ARGUMENT
I.
FIRST AMENDMENT FREEDOMS MAY BE ABRIDGED BY THREATS AND
INFORMAL PRESSURES QUITE AS MUCH AS BY FORMAL SANCTIONS OR
CHARGES.
The Supreme Court recognized well over thirty years ago,
Bantam Books v. Sullivan, 372 u.S. 58
4
(1963),
in
that free expression
may be as gravely endangered by informal pressures from government
as by criminal
charges or civil
sui ts.
The practice which the
Bantam Books Court found violative of the First Amendment consisted
of adopting and having law enforcement officers distribute lists of
books which a state commission believed children should not read.
When
publishers
proved
that
such
informal
curtailed the market for their books,
threats
had
sharply
the Supreme Court concluded
that First Amendment rights had been abridged:
People do not lightly disregard public officers' thinly
veiled threats to institute criminal proceedings against
them if they do not come around .
[This] is a
form of regulation that creates hazards to protected
freedoms
markedly
greater
than
those
that
attend
reliance upon the criminal law.
Id. at 68.
The
artist
in
the
present
case
has
experienced
strikingly
similar injury and loss because of informal pressures and threats
from government officers.
As the District Court found:
[Boggs] is being injured by the Secret Service in a
number of ways other than threat of prosecution.
Not
only has the Secret Service seized his work, but also
Mr. Boggs finds himself unable to sell his art.
Fear of
Secret Service seizure has also caused the artists'
cooperative where Boggs lives to stop accepting his
work. . . . Collectors and gallery owners who would like
to show or buy Boggs' work are also fearful of Secret
Service intervention.
Boggs v. Bowron, 842 F. Supp. 542, 548 (D.D.C. 1993).
In Bantam Books,
the Court noted with special
concern that
informal pressures and threats often need to be scrutinized even
more closely -- and may be even more dangerous
5
than formal
criminal
charges
precisely because
they
are
informal:
obviating the need to employ criminal sanctions,
"In
thus
the state has at
the same time eliminated the safeguards of the criminal process."
Bantam Books,
publishers
worst
of
372
u.s.
at
in Bantam Books,
both
worlds:
69-70.
the
Such
Thus,
informal
pressures,
for
for
the
system may present
the
on
Boggs
one
as
hand,
curtail
expressive interests and activity no less severely or extensively
than would the filing of formal charges; yet at the same time, the
creative person whose work is the object of such pressures may lack
the procedural safeguards and the chance for a
hearing that due
process ensures to one who has been formally charged with a crime.
There is another reason for close scrutiny of such informal
pressures.
If governmental interests are genuinely implicated -­
in this case,
for example,
if there were a risk that Boggs'
art
could deceive or defraud -- then it is the criminal process that
should be invoked to vindicate those interests.
If over a
long
period government cites such risks, but then takes no formal action
to restrain or reduce them, it is hard to avoid reaching one of two
conclusions
--
ei ther
that
the
risk could not
beyond a reasonable doubt in a criminal court,
is
for
some
reason
not
willing
to
test
its
have
been proved
or that government
claims
under
the
criminal due process standards that would apply the moment formal
charges were filed.
Such an analysis does not necessarily impute
bad faith to the responsible government agency.
6
It does, however,
suggest that the agency should either move to invoke formal charges
or leave a harried citizen alone -- especially if that citizen is
engaged in creative activity and expression.
never
asked to
intervene
in order
to
test
If the courts are
formal
charges,
then
those courts should be willing to tell government to back away.
Indeed,
safeguards
the
be
in
First
place
Amendment
so
that
requires
no
that
governmental
procedural
authority
may
erroneously, on an ad hoc and subjective basis, suppress someone's
speech.
u.s.
See Grayned v. City of Rockford, 408
104, 108 (1972).
To prevent this type of interference with expressive activity (even
in
the
area
protection)
of
the
obscenity
Court
which
requires
receives
that
interposed on governmental actions.
51,
no
judicial
First
Amendment
proceedings
Freedman v. Maryland, 380
be
u.s.
(1965) .
The
absence
of
formal
process
here
is
even
more
because of the selective application of the statute.
Service
has
chosen
to
focus
upon
Boggs
among
the
suspect
The Secret
hundreds
of
persons, including many commercial advertisers, whose depictions of
u. S.
currency
regulations.
do
not
Indeed,
confornl
to
the
statutory
intent to regulate such symbolic use,
defame
the
Appellant at 41-42).
and
color
Treasury Department officials have publicly
recognized the symbolic value of currency,
would
size
intrinsic
value
of
and have stated their
condemning acti vi ties that
currency
(see
Brief
for
Such content-based interpretation of the only
7
applicable
substantial
government
counterfeit bills.
deceit
seems
statute
or
fraud
interest
Here,
was
incompatible
in
with
the
deterring
intended
or
and
circulation
the record clearly shows
either
valid
that no
practiced.
of
such
Thus
the
persistent use of informal threats and devices -- and the absence
of
those
formal
charges
one would expect
if a
major
government
interest were at risk -- strongly suggest impermissible government
censorship,
and
more
fully
sustain
the
plea
for
judicial
intervention.
II.
AN ARTIST'S FREEDOM OF EXPRESSION INCLUDES THE RIGHT TO SELECT
A CONTROVERSIAL MEDIl~ OR THEME.
Free expression for an artist means more than simply the right
to pursue a familiar and traditional medium of creative endeavor.
It also entails the right to select forms and means that may not
meet
conventional
canons
of
A unanimous
"art".
Supreme
Court
recently held that "the fundamental rule of protection under the
First Amendment [is] that a speaker has the autonomy to choose the
content of his own message."
Hurley v. Irish-American Gay, Lesbian
and Bisexual Group of Boston, No. 94-749, 1995 U.S. LEXIS 4050, at
*30 (1995).
Recent cases involving artistic freedom have addressed
the display of controversial works in familiar forms,
Piarowksi v.
Illinois Community College Dist. 515, 759 F.2d 625 (7th Cir. 1985),
or
government
Endowment
for
funding
the Arts,
for
795
art
F.
and
artists,
Supp.
8
1457
Finley
(C.D.
v.
Cal.
National
1992),
or
artists'
recourse
against
those
who
have
damaged
their
works,
Nelson v. streeter, 16 F.3d 145 (7th Cir. 1994).
These cases reflect
two principles
one explici t
and the
other implicit -- of direct import for the issue now before this
court.
The explicit premise is that art is no less fully protected
under the First Amendment than is political expression.
Posner explained in Piarowksi, 759 F.2d at 628:
As Judge
"[T]he freedom of
speech and of the press protected by the First Amendment has been
interpreted to
embrace the purely artistic as well
expression .
. unless the artistic expression is obscene in the
legal
sense."
Similarly,
in
upholding
the
right
as poli tical
of
a
private
parade sponsor to include or exclude whatever group it chooses, the
Supreme Court most recently declared:
[A] narrow, succinctly articulable message is not a
condition
of
constitutional
protection,
which
if
confined to expressions conveying a
'particularized
message,' would never reach the unquestionably shielded
painting of Jackson Pollock, music of Arnold Schoenberg,
or Jabberwocky verse of Lewis Carroll.
Hurley, No. 94-749, 1995 u.S. LEXIS 4050,
added) (citations omitted) .
As
Judge
Posner made
clear
in Nelson,
at *23
(1995)
(emphasis
such protection does
not
depend upon the acceptabili ty of the theme or the medium of the
artistic w,)rk;
controversial and provocative art as well as bland
and conveno:ional expression claims First Amendment protection.
is
clear ... that
government
books that offend them,
officials
are
not
permi tted
to
"It
burn
and we do not see any difference between
9
burning
an
offensive
book
and
burning
an
offensive
painting."
Nelson, 16 F.3d at 148.
The other premise is implicit,
Amendment roots:
but has
firm and deep First
An artist's freedom of expression must extend to
the choice of medium as well as theme,
and of the symbols through
which he chooses to express his ideas.
It is nearly sixty years
since the Supreme Court declared,
147,163
(1938),
in Schneider v. State,
308 u.S.
that such choices are a vital part of the process
of expression: "[O]ne is not to have the exercise of his liberty of
expression in appropriate places abridged on the plea that it may
be
exercised
in
some
other
place."
Four
Southeastern Promotions, Ltd. v. Conrad,
Court
reaffirmed
the
decades
420 u.S. 546,
Schneider principle
in
the
later,
in
(1975),
the
context
of
the
choice of site for the performance of a controversial musical play.
Similarly,
nationally recognized syrrlbols which have
communicative
banned
for
principles:
impact
others
cannot
without
is
"Symbolism
communicating ideas.
be
protected
undermining
a
primitive
against
basic
but
the
some
First
effective
greatest
uses
or
Amendment
way
of
The use of an emblem or flag to symbolize
some system, idea, institution, or personality, is a short cut from
mind to mind."
West Virginia Board of Education v. Barnette,
319
U.S. 624, 632-33 (1943).
The
importance of such choices
to the exercise of artistic
expression has been repeatedly reaffirmed,
10
and in varied contexts.
In Spence v. Washington,
418 u.S. 405
(1974),
the conviction of a
college student who,
war,
window
flew
from
inserted peace
his
symbol.
an
inverted
Finding
that
the Court overturned
protesting the Vietnam
American
such
use
of
flag
the
with
flag
an
was
protected symbolic speech, the court explained:
[T]he context in which a symbol is used for purposes of
expression is important,
for the context may give
meaning to the symbol.
[A] n intent to convey a
particularized
message
was
present,
and
in
the
surrounding circumstances the likelihood was great that
the message would be understood by those who viewed it.
Id. at 410; see also United states v. Eichman, 496 U.s. 310
(flag burning); Tinker v. Des Moines School District,
(1969)
(1990)
393 u.s. 503
(black armbands) .
These cases reflect a common theme of controlling importance
here:
The speaker may as a First Amendment matter choose where and
when and how he or she will speak,
unless government can silence
the message altogether (such as with child pornography), or unless
the choice of forum conflicts with a valid and completely contentneutral
time,
warrant
a
place
government
or
manner
ban
on
rule.
the
Neither
exception
artist/speaker's
choice
would
here.
While government clearly may punish people for passing counterfeit
bills wi thout
abridging ei ther the maker's or the passer's
free
speech, there has been no credible proof of such an offense here.
11
III. RECOGNITION OF ARTISTIC FREEDOM IS ESPECIALLY APPROPRIATE IN
THIS CASE.
In its opinion,
the District Court stated it
faced "a task
similar to the one the Supreme Court faced in Regan v. TIME,
Inc.,
468 u.S. 641 (1984) ."
While
it
is
true
that
both
consti tutionali ty of
close
scrutiny of
Boggs v. Bowron, 842 F. Supp. at 550.
cases
section
TIME's
involved
504' s
color
an
assessment
and
plurali ty opinion
size
of
the
restrictions,
reveals
that
it
was
decided on grounds too narrow to resolve the constitutional issues
raised by this case.
In TIME,
a
sharply divided Court
counterfeiting law,
a
content-based
struck down parts
of
the
finding the enumeration of exempted uses to be
standard
violative
of
the
First
Amendment.
A
plurality went on to hold only that the size and color restrictions
on depiction of u.S. currency were not facially invalid.
at 655-59.
468 u.S.
Justices Brennan and Marshall specifically dissented on
this point. Id. at 659-91.
Congress would not have
Justices Powell and Blackmun wrote that
enacted the
color and size
restrictions
without the clause that was declared to be unconstitutional. Id. at
692.
Justice Stevens, while upholding the constitutionality of all
the provisions
of
the
statute,
specifically stated that
he
doing so only as applied to commercial publishers such as TIME.
In short, while
adequately
the
individuals, if
TIME's
freedom
exception, TIME
of third parties
the statute may not have accorrunodated
First
Amendment
rights
of
all
it has successfully avoided abridging
of
speech
and
press
through
the
has no stake in championing the rights
regarding these issues.
12
was
Id. at 694
Thus,
(stevens, J. concurring in part, dissenting in part) .
five members of the Court in TIME believed either that the
color and size restrictions were invalid or that the validity of
those restrictions in contexts other than commercial publishers had
not been addressed.
Further,
facial
size
although the plurality opinion appears to conduct a
analysis
of
restrictions,
stevens'
the
consti tutional
in
fact
the
validi ty of
analysis
is
the
similar
color
to
and
Justice
concurrence in that it considers the restriction only in
the context of commercial publishers. For example:
Unlike the purpose requirement,
the size and color
limitations do not discriminate on the basis of content.
Compliance with the color and size requirements does not
prevent TIME from expressing any view on any subject or
from using illustrations of currency in expressing those
views.
Id.
at
655-66.
While
it
may
be
debatable
whether
commercial
publishers such as TIME are limi ted from expressing "any view on
any
subject"
by
the
restrictions,
undeniably so limited.
artists
such
as
Boggs
are
In fine art, unlike commercial publishing,
the manner in which the illustration is presented is inextricable
from
its
content.
When
one
adds
the
two
dimensions
this
case
introduces -- the creativity of a gifted artist's use of currency,
and the harm done by the Secret Service's "seize-and-threaten-but­
don't-prosecute" policy,
by the TIME Court.
one gets far beyond the issues addressed
Those issues are squarely presented here,
case that differs as sharply from its antecedent as,
13
in a
let us say, a
suit claiming that no state agency could ever compile for internal
use lists of "desirable" and "undesirable" books would differ from
the vivid and compelling facts of Bantam Books.
Another element distinguishes this case
added force to the artist's claim.
political,
cultural
and
artistic
Boggs'
tradition
from TIME and gives
art is
of
rooted in the
Harnett,
Haberle,
Dubreuil, and other 19th century trompe l'oeil currency artists who
used
currency
commentary.
as
The
a
symbolic
historic
vehicle
shift
to
for
paper
social
and
money
which
political
occurred
quring the first half of the 19th century triggered a heated debate
between banking and industrial interests who favored the shift, and
agricultural interests who opposed it.
This debate culminated in
the rise of Populism, the Free Silver Movement, and the acrimonious
presidential campaign of 1896.
Nineteenth century artists seized
upon images of currency as the quintessential emblem of that social
and political landscape.
(Declaration of Bruce Chambers at 3-4.)
This
in
tradi tion
continued
the
twentieth
century
through
such
works as Andy Warhol's silk screen images of the two-dollar bill.
Indeed,
in TIME,
Justice Brennan commented on the unique power of
currency as an expressive image, stating:
The image of money in particular is an especially
evocative and powerful way of communicating ideas about
matters of public concern, ranging from economics to
politics
to
sports
[and]
a
statute
that
substantially abridges a uniquely valuable
form of
expression of this kind cannot be defended on the ground
that ... the speaker can express the same ideas in some
other way.
14
u.s.
TIME, 468
Boggs'
641, 678 (1984)
(J. Brennan dissenting) .
choice of currency as a medium comes not simply from
fascination wi th conunerce.
In addi tion to seeking
(as the artist
himself declared in his District Court affidavit) to bring "art out
of the museum and into the street",
purpose
to
say
something
portrayal of money:
significant
about
money
through
the
"In part, my work is designed to elucidate the
idea that the value of money .
on the basis
there is clear evidence of a
of our trust
. should be consciously accepted
in each other and in our
social
and
political institutions." (See Joint Appendix at A-114.)
The
medium,
to
revive
substantial part the message.
to
say
something
a
once
familiar
phrase,
is
in
Boggs uses currency because he wants
meaningful
about
exchange
and
value
and
therefore about values and society -- that he could not possibly
convey so forcefully in any other way.
a medium or a
theme
Thus the artist's choice of
reflects not only an artistic basis,
political premise as well.
but a
The regulation here is not comparable
to the decibel level restrictions upheld by the Court in Kovacs v.
Cooper,
336 u.S.
77
(1949),
or the height limitations on outdoor
signs upheld by other courts -- examples that the TIME plurality
cited
in
examining
counterfei ting
the
statute.
exceptionally high order,
color
The
and
size
expressive
restrictions
interest
here
of
is
of
the
an
and one not addressed by the plurali ty
opinion in TIME.
15
IV.
SECTION 504 IS BEING APPLIED TO BOGGS IN A CONTENT-BASED
MANNER.
Even
if
this
court
were
to
find
the
plurality
in
TIME
controlling, it should vindicate Boggs because the restrictions are
being applied in a content-based manner.
emphasized
that
"the
Government
does
In TIME,
not
need
to
the plurality
evaluate
the
nature of the message being imparted in order to enforce the color
and
size
restrictions."
exactly what
468
u.S.
the Secret Service
at
656.
is doing.
But
here,
that
The Addendum to
is
the
Brief of Appellant offers dozens of examples of violations of §504
that
are
Service
Boggs.
far
more
ignores
pervasive
these
than Boggs'
violations
only
to
work.
focus
Yet
the
Secret
its
efforts
on
Indeed, Treasury officials have made statements conceding a
policy of seeking to control the symbolic use of currency.
for Appellant at 41-42.
Brief
Such a policy is clearly a content-based
application and therefore the color and size restrictions of §504
are being applied in a manner that violates the First Amendment.
Boggs' currency is clearly a painting, private property which
he barters to a
knowing purchaser as a piece of art.
There is
neither any evidence that Boggs intends to defraud the purchasers
of his bills,
nor that he his artistic activity brings him within
the purview of the government's valid anti-counterfeiting concern.
Indeed, there is clear evidence to the contrary:
that the exchange
is made in the context of a dialogue -- undeniably a useful and
expressive activity -- between buyer and seller over political and
16
social ideas,
including that of a clear and open exchange of art
for services or goods.
No
bills,
reasonable
person
could
conclude
that
Boggs'
often cryptic and in colors other than green,
one-sided
are
ei ther
intended to represent or could reasonably be seen as representing
"counterfeit"
currency.
No
one
complained of being defrauded.
dollar
bill
in
authenticate
it
misconstrue
the
front
as
of
his
work
as
a
invol ved
When Boggs
wai ter,
artwork,
real
in
and
the
these
draws
then
Uni ted states
a
signs
wai ter
transactions
one
the
could
not
currency,
attempt by Boggs to counterfeit such currency.
hundred
back
to
possibly
nor
as
an
In the same vein,
when Georgia O'Keefe bartered her painting Seaweed with Mrs. Weiner
for an amber necklace, the buyer knew she was getting a painting of
seaweed,
not
"real"
seaweed.
See 0' Keefe v.
Snyder,
83 N. J .
478
of money,
not
(1980) •
Boggs'
buyers
know they are
getting drawings
"real" or marketable Uni ted states currency.
this ,
waiters
understand this,
owners
of
Artists understand
amber beads
understand
this. The only persons who seem confused as to the nature of these
transactions and dialogues are the Secret Service.
v.
SECTION 504 FAILS AS A LEGITIMATE TIME, PLACE, OR MANNER
RESTRICTION.
Even if TIME controlled this case,
decision
is
no
longer
In
viable.
17
the reasoning behind that
the
ten
years
since
that
decision,
technology has made the color and size restrictions of
§504 useless as a restraint on counterfeiting.
restrictions no
longer promote a
The color and size
substantial
government
interest
and therefore fail as a time, place, or manner restriction.
Reasonable time, place and manner regulations must meet three
standards:
(1)
the regulation/statute may not be based either on
the content or subject matter of speech;
it must be narrowly
(2)
tailored to serve a significant governmental interest;
leave
open
TIME,
468
18
u.s.c.
ample
u.s.
alternative
at 648.
channels
At minimum,
for
(3)
it must
communication.
the color/size restriction in
§504 fails parts two and three of the test.
When §504 was assessed in 1984, four Justices were of the view
that
there were
potential
sources
counterfeiting.
computer
legi timate
of
technological
color
plates
reasons
which
That is no longer true.
technology,
§504
commercial and fine artists.
impacts
for
could
be
restricting
used
for
Now, with the advance of
not
counterfeiters,
but
only
As Justice Brennan foresaw in TIME,
[I] n an age of easy access to high-quali ty printing,
ranging
from
the
office
copying
machine
to
the
sophisticated photo-offset equipment of printers for
hire, the notion that a would-be counterfeiter would use
the plates created for appellee's magazine covers
instead of copying actual pieces of currency -- strains
credibility.
468
u.s.
The
at 687
(Brennan, J. dissenting).
third requirement
restrictions
is
channels
communication.
of
that
they
of
reasonable
must
leave
Earlier
18
time,
open
cases
place
ample
have
and manner
alternative
established
a
principle
symbols,
of
central
value
such as the flag,
here
that
certain
high-impact
have deliberate and exclusive meanings
not available through alternative channels.
Further,
are multiple
as Justice Brennan noted in his TIME dissent,
provisions
under
Title
18
which
fully
there
protect
the
government's interest in barring illustrations that could be used
for
counterfeiting.
Id.
at
687.
The
existence
of
adequate
content-neutral alternatives further undercuts the justification of
a
speech-restricting
statute.
As
the
R.A.V. v. City of st. Paul 505 u.s. 377
Supreme
Court
stated
(1992):
"Let there be no
mistake about our belief that burning a cross in someone' s
yard is reprehensible.
disposal
to
prevent
Amendment to the fire. "
But st.
such
in
front
Paul has sufficient means at its
behavior
Similarly,
here.
19
wi thout
adding
the
First
comparable al ternati ves exist
CONCLUSION
If the Secret Service has a valid counterfeiting case against
Boggs, that case should be pursued.
If there is no such case, but
simply a desire on the part of a government agency that Boggs apply
his creative talent to media more tradi tional than Uni ted states
currency,
the
artist
should be
left
alone.
Indeed,
the
First
Amendment leaves government no other recourse.
Respectfully submitted,
J. Joshua Wheeler
Robert M. O'Neil
The Thomas Jefferson Center for
the Protection of Free
Expression
400 Peter Jefferson Place
Charlottesville, Va. 22901
804-295-4784
20
CERTIFICATE OF SERVICE
I certify that on July 10, 1995, I served the foregoing Brief of Amici Curiae by first
class mail, postage prepaid to:
Charles F. Flynn, Esq.
Assistant United States Attorney
United States Attorney's Office for the District of Columbia
10-112 Judiciary Center Building
555 4th Street, N.W.
Washington, D.C. 20001
Kent Yalowitz
399 Park Avenue
New York, NY 10022
Philip W. Horton
1200 New Han1pshire Avenue, N.W.
Washington, D.C. 20036
J. Joshua Wheeler, Esq.
CERTIFICATE OF COMPLIANCE
WITH CIRCUIT RULE 28(d)(1)
I hereby certify that the Word Count feature of WordPerfect Version 5.1 indicates
that the foregoing Brief of Amici Curiae, inclusive offootnotes and citations, contains no
more than 8,750 words.
J. Joshua Wheeler, Esq.