[fn1] This case was originally brought against John W. Magaw, in his capacity as Director of the United States Secret Service. On December 7, 1993, Eljay Bowron became Director of the Secret Service. "When a public officer is a party to an action in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, . . . the officer's successor is automatically substituted as a party. Proceedings following the substitution shall be in the name of the substituted party. . . ." Fed.R.Civ.P. 25(d)(1). This court hereby orders substitution of the aforementioned party.

Kent A. Yalowitz, Arnold & Porter, New York City, for plaintiff.

Susan A. Nellor, Asst. U.S. Atty., Civil Div., Washington, DC, Maravin Speed, Office of the General Counsel, U.S. Secret Service, Washington, DC, for defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

Plaintiff, a visual and performance artist, challenges the constitutionality of provisions of the federal anti-counterfeiting statutes, requesting declaratory, and injunctive relief.

Defendants have filed a motion to dismiss, and the parties have filed cross-motions for summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted.

I. Introduction

J.S.G. Boggs is an artist and academic. His work has been exhibited throughout America and Europe and is currently on exhibit under the auspices of the Smithsonian Institution. Mr. Boggs' work has been the subject of wide-spread media attention. This notoriety is due, in part, to the fact that much of Mr. Boggs' work is in the "image of money." See Complaint for T.R.O., Prelim. & Perm.Inj., & Other Relief ("Complaint") 4; Aff. Boggs 6. Many are actual-sized, trompe l'oeil pieces. Id. 6; Boggs Aff. 3. After explaining to merchants that he is an artist, Mr. Boggs then barters these pieces, offering to exchange his art for the face value of the reproduction in goods and services. Boggs has "spent" thousands of pictures of currency ("Boggs Bills") around the world over the last eight years. Id.

The purpose behind Boggs' approach to art does not appear to be to defraud those with whom he barters.[fn10] As he states:

I have brought art out of the museum and into the street. I explore issues of trust, value, aesthetic beauty and questions about the usefulness and value of art — all in a dialogue with the viewer, rather than in a monologue directed at the viewer. In proposing a transaction, I generally ask a series of questions designed to prompt the viewer into thinking about the meaning and uses of art and money in everyday life. My art allows me to ask the viewer, directly, what art should look like, what should be done with it, and what it represents. In part, my work is designed to elucidate the idea that the value of money. . . should be consciously accepted on the basis of our trust in each other and in our social and political institutions. My work allows art . . . to reach people who cannot be coaxed into galleries and museums.

Boggs' Aff. 7-8.

An unlikely collector, the Secret Service has taken a keen interest in the work of Mr. Boggs. In September 1990, Secret Service agents effectively stopped the publication of a catalog featuring Mr. Boggs' work. When Secret Service agents seized the color proofs for the catalog, they informed the printing company that the publication of Boggs' work, in their actual dimensions and in full color, would be in violation of the counterfeiting statutes. Compl. 9. The United States Attorney in Florida did not bring charges. Id. 10.

In March 1991, reports of Mr. Boggs' attempting to obtain merchandise from a local store using a reproduction of United States currency prompted a visit from the Secret Service in Cheyenne, Wyoming. Id. 11. A Secret Service special Agent and
the United States Attorney for the District of Wyoming visited Boggs in his hotel room. At their request, Boggs provided a general sample of 15 Boggs Bills. Boggs was advised that his reproductions appeared to be in violation of the counterfeiting statutes and were subject to seizure. This sample is being retained by the Secret Service as contraband. Defs.' Mot. Dismiss at 4. On October 4, 1991, the Office of the United States Attorney for the District of Wyoming declined prosecution of Boggs. Compl. 12.

In September 1992, the Pittsburgh area Secret Service was alerted to Boggs' attempts to use his reproductions in the Pittsburgh area. Id., Abraham Aff. 2. Boggs contacted the Pittsburgh Field Office by telephone and voluntarily appeared for an interview on October 1, 1992. During the interview, Boggs would not produce any other samples. The Secret Service provided Mr. Boggs with a pamphlet explaining the guidelines for reproducing currency; however, Mr. Boggs stated that he was familiar with the guidelines, but did not believe they applied to his work. Id. 5.

In November 1992, a press clipping alerted the Secret Service to the fact that Boggs had printed one million dollars in Boggs Bills and was planning to use the notes in the Pittsburgh area during the next year. Id. 7-8. On December 1, 1992, after consultation with the United States Attorney's Office for the Western District of Pennsylvania, the Secret Service obtained federal search warrants for the residence, studio, and office of Boggs. The Service seized several items, characterized by Boggs as the bulk of his life's work, pursuant to the properly executed warrants. Plf.'s Mem.Mot.T.R.O. & Prelim.Inj. at 2, 11. In a December 8, 1992, meeting with agents of the Secret Service, Boggs was advised that his reproductions were in violation of the statute and that he could be prosecuted for his actions if he continued. Compl., Abraham Aff. 10.

On February 8, 1993, the United States Attorney for the Western District of Pennsylvania sent a cease and desist letter to Boggs, stating that continued reproducing and passing of Boggs Bills could subject him to prosecution. The letter expressed that the Service viewed his "continued manufacture, possession and distribution of `Boggs bills' as a violation of the law." The United States Attorney's Office is currently considering whether it will prosecute Mr. Boggs in Pennsylvania.

On May 25, 1993, Boggs attempted to resolve the matter through administrative means. He petitioned the Secretary of the Treasury pursuant to 18 U.S.C. § 504 for permission to continue his reproduction and distribution of Boggs Bills. Compl., Ex. A. Prosecutors agreed to refrain from taking steps to indict Boggs pending the decision by the Secretary. Plf.'s Mem.Mot.T.R.O. & Prelim.Inj. at 3. On September 2, 1993, Boggs' petition was denied by the Secret Service. Id., Ex. B. On September 3, 1993, Boggs initiated the current proceeding.

II. Motion to Dismiss for Failure to State a Claim

A. Standard of Review

Before reaching the merits of plaintiff's claims, however, the court must address its jurisdiction over this matter. Defendants suggest that the complaint should be dismissed for failure to state a claim for equitable relief. When reviewing the adequacy of a complaint for purposes of a Rule 12(b)(6) motion, plaintiff's factual allegations must be presumed true and liberally construed in favor of the plaintiff. Phillips v. Bureau of Prisons, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. DeKalb County, Georgia, 433 U.S. 25, 27 n. 2, 97 S.Ct. 2490, 2492 n. 2, 53 L.Ed.2d 557 (1977)). In addition, the plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 820 F.2d 1245, 1254 (D.C. Cir. 1987) (citing Pauling v. McElroy, 278 F.2d 252, 254, (D.C. Cir.), cert. denied, 364 U.S. 835, 81 S.Ct. 61, 5 L.Ed.2d 60 (1960)).

Dismissal is only appropriate if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth, 820 F.2d at 1254 (citations omitted); Phillips, 591 F.2d at 968.

B. Reaching the Merits of this Case

Plaintiff asks this court to enjoin the ongoing criminal investigation and possible future criminal prosecution in the Western District of Pennsylvania on constitutional grounds. Compl. at 10. The question is whether this court should reach the merits of this case. Defendants suggest not. After considering the extraordinarily well-written pleadings and memoranda of all parties, this court believes that it may hear the merits of this request for injunctive relief under the Declaratory Judgment Act, the equities of the situation at hand requiring this court to provide a forum for plaintiff's complaint.

The Declaratory Judgment Act states:

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes other than actions brought under section 7428 of the Internal Revenue code of 1986, a proceeding under section 505 or 1146 of title 11, or in any civil action involving an antidumping or countervailing duty proceeding regarding a class or kind of Canadian merchandise, as determined by the administering authority, any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

28 U.S.C.A. § 2201 (West Supp. 1993) (emphasis added).

Under the Declaratory Judgment Act, the court must have before it "a case of actual controversy within its jurisdiction." This phrase has often been interpreted as synonymous with the "case or controversy" requirement of Article III of the Constitution. "[C]oncrete legal issues, presented in actual cases, not abstractions" are required for adjudication of legal disputes. United States v. Appalachian Elec. Power Co., 311 U.S. 377, 423, 61 S.Ct. 291, 306, 85 L.Ed. 243 (1940); see also Golden v. Zwickler, 394 U.S. 103, 110, 89 S.Ct. 956, 960, 22 L.Ed.2d 113 (1969); Electric Bond & Share Co. v. SEC, 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936 (1938). "Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 512, 85 L.Ed. 826 (1941).

In order for a party to seek preenforcement review of a statute, the dispute must also be ripe for adjudication. 10A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice & Procedure § 2757 (1983). For example, a plaintiff can usually challenge the legality of a statute only when he or she is prosecuted for its violation. Then, the plaintiff can raise a defense that the law is unconstitutional.

However, a plaintiff need not "first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974). Threats of criminal prosecution may provide a basis for adjudication. Id. A plaintiff "should not be required to await and undergo a criminal prosecution as the sole means of seeking relief." Doe v. Bolton, 410 U.S. 179, 188, 93 S.Ct. 739, 745, 35 L.Ed.2d 201 (1973). Indeed, civil actions for declaratory relief against criminal prosecution have become a common method of challenging the constitutionality of federal statutes. Moreover, courts have not hesitated to restrain or enjoin criminal prosecutions where First Amendment rights are at stake. PHE, Inc. v. Department of Justice, 743 F. Supp. 15, 26 (D.D.C. 1990).

As Wright, Miller, and Kane explain:

[C]ourts have declined to hear cases seeking a declaratory judgment on the constitutionality of a particular statute . . . when plaintiff has not shown that there is any immediate threat that the statute will be enforced against him. But, courts also have not hesitated to issue a declaration if "one or both parties have taken steps or pursued a course of action which will result in "`imminent' and `inevitable' litigation. . . ." Thus, when the threat of prosecution under a challenged statute is real, a declaratory judgment on the constitutionality of the statute is appropriate.

10A Wright, Miller, & Kane, supra, § 2757 (footnotes and citations omitted). Inherent in this rule of law is that there is an unfairness to requiring a person to violate a law in order to challenge it.

In considering whether to entertain a case, a court should consider the hardship to the parties in withholding court consideration and the significance of the harm in denying review. These factors must be weighed on a case-by-case basis, construing the Declaratory Judgment Act liberally so as to effectuate its broad, remedial purpose.

Because the separation of powers doctrine dictates substantial deference with respect to prosecutorial decisionmaking in investigations and prosecutions, there is a strong policy against intervening in ongoing criminal investigations. North v. Walsh, 656 F. Supp. 414, 420 (D.D.C. 1987). The standard of obtaining any form of injunctive relief is high, but a party who seeks to enjoin a criminal investigation has a particularly heavy burden. Id. Our Court of Appeals has denied such equitable relief, ruling that "only the most extraordinary circumstances warrant anticipatory judicial involvement in criminal investigations." Id. (citing Reporters Committee for Freedom of the Press v. AT & T, 593 F.2d 1030, 1065 (D.C. Cir. 1978), cert. denied 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639 (1979)). In addition, the Supreme Court has routinely rejected collateral challenges which impede ongoing criminal investigations.

The rationale is threefold. First, courts must protect the public's interest in the fair and expeditious enforcement of the criminal laws. Second, courts should balance the defendant's need to assert his rights against the judiciary's interest in conserving its resources. And third, principles of separation of powers caution courts against intervening in a criminal investigation conducted by another branch of government. Id.

Despite the caution which a court must exercise in deciding whether to hear the merits of a declaratory action to enjoin a criminal prosecution, Mr. Boggs is involved in a controversy ripe for adjudication. Having exhausted his administrative remedy, Mr. Boggs has pursued a course of conduct that will result in inevitable litigation. There is no question that Mr. Boggs and the Secret Service have "adverse legal interests." This court believes these interests are of "sufficient immediacy and reality" to warrant adjudication.

Mr. Boggs is also justified in his well-founded fear of prosecution. Boggs has received numerous warnings emanating from the Treasury Department. See supra Part I. Plaintiff has been told that if he does not cease and desist "from the use of any future reproductions of currency appearing in color," the matter will be turned over to the United States Attorney for "appropriate action." The United States Attorney has never disavowed the possibility of prosecution. See supra footnote 10.

"The absence to date of prosecutorial action with respect to plaintiff does not diminish or lessen the immediacy and ripeness of this controversy: `[c]ontingency of official enforcement of clearly applicable criminal prohibitions should not be grounds for denying present review, even if there is no demonstrated threat of prosecution.'" Time, Inc. v. Regan, 539 F. Supp. 1371, 1382 (S.D.N.Y. 1982), aff'd in part and rev'd in part 468 U.S. 641, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984) (citations omitted).

In addition, Mr. 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. Boggs Aff. 15. Collectors and gallery owners who would like to show or buy Boggs' work are also fearful of Secret Service intervention. See Sam Berkowitz Aff.

In Wagner v. Simon, 412 F. Supp. 426 (W.D.Mo. 1974), aff'd 534 F.2d 833 (8th Cir. 1976), the court reached the merits of a declaratory relief claim in a case with facts strikingly similar to the present case. Plaintiff requested that the court declare that a "work of art" that he created by using a photographic enlargement of a fifty dollar Federal Reserve note, which was seized by agents of the United States Secret Service under the provisions of section 474, was not within the scope of the counterfeiting statutes, and to declare that section 474 of that statute was unconstitutional or unconstitutional as applied to plaintiff. Id. 412 F. Supp. at 428.

Plaintiff created a black and white enlargement from a negative of the federal reserve note, and modified the bill, creating images within the currency reproduction that expressed criticism of President Nixon's economic policies and his involvement in the Watergate scandal. Id. The court held that the "seizure of the facsimile by the Secret Service and the threats of criminal prosecution have effectively prevented plaintiff from marketing and displaying reproductions of the facsimile." The court noted that these facts were sufficient to satisfy the case or controversy requirement of Article III. Id. at 430.

Defendants also assert that Rule 41(e) of the Federal Rules of Criminal Procedure provides an adequate remedy at law for the violation of Boggs' First Amendment rights. Rule 41(e) involves the return of property held by or on behalf of the Court. While the return of plaintiff's property is important, it is not a substitute for declaratory and injunctive relief vindicating his constitutional rights. Moreover, Rule 57 provides that "another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate." Fed.R.Civ.P. 57. The language in the Declaratory Judgment Act itself establishes beyond doubt that declaratory relief is alternative and not exclusive.

III. Motions for Summary Judgment on Injunctive Relief

The court will now address the parties' cross-motions for summary judgment. Since both motions raise the same issues, the court will consider the two motions simultaneously.

In his quest for declaratory and injunctive relief, plaintiff contends that 18 U.S.C. § 474 and 504 prohibit plaintiff from using illustrations or likenesses of United States currency as vehicles for the expression of opinions and ideas in violation of his First Amendment rights. Plaintiff contends that these provisions are overly broad and curtail plaintiff's right of free speech, constituting unconstitutional censorship of his work. Plaintiff suggests that these statutes are unconstitutional on their face, and as applied to the activities of plaintiff. Plaintiff argues against the existence of any compelling governmental interest justifying the need for the constraints placed upon his symbolic use of illustrations of money. Plaintiff also states that the challenged provisions are not narrowly tailored so as to advance any constitutionally cognizable compelling governmental interest that may exist without unnecessary abridgement of First Amendment rights. Finally, plaintiff suggests that the statutory provisions do not apply to his work.

Plaintiff requests the court to (1) enjoin defendants from (a) prosecuting plaintiff or taking action to prosecute him under 18 U.S.C. § 471-509, (b) taking action to interfere with plaintiffs 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 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., 865 F.2d 320, 325 (D.C. Cir. 1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (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 is no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2509-10 (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, 104 S.Ct. 3262, 82 L.Ed.2d 487 (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, 104 S.Ct. at 3265. 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. Id. at 648, 104 S.Ct. at 3266. 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, 104 S.Ct. at 3272.

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 is 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. 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, 2100, 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, 104 S.Ct. 3262, 3266, 82 L.Ed.2d 487 (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, 104 S.Ct. at 3266 (quoting Carey v. Brown, 447 U.S. 455, 461, 100 S.Ct. 2286, 2290, 65 L.Ed.2d 263 (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.

Id. 468 U.S. at 648-49, 104 S.Ct. at 3266-67 (citations omitted).

In response to this decision, Congress revised 18 U.S.C. § 504, deleting the purpose and publication clauses. The current section 504 only sets out "size and color" limitations on illustrations of currency. Under this section, persons may be authorized by the Secret Service to make illustrations of United States currency if the illustrations are in black and white and of a size that is less than three-fourths or more than one and one-half times the linear dimension of real currency.

In the present action, defendants again attempt to justify the restrictions imposed by section 504 as reasonable time, place, and manner regulations. In order to be constitutional, a time, place, and manner regulation must meet three requirements. First, it "may not be based upon either the content or subject matter of speech." Heffron v. International Society for Krishna Conciousness, Inc., 452 U.S. 640, 648, 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981) (quoting Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980)). Second, it must "serve a significant governmental interest." Id. 452 U.S. at 649, 101 S.Ct. at 2564 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)). And third, it must "leave open ample alternative channels for communication of the information." Id. 452 U.S. at 648, 101 S.Ct. at 2564 (quoting Virginia Pharmacy Board, 425 U.S. at 771, 96 S.Ct. at 1830). In addition, restrictions on First Amendment rights "must . . . be narrowly tailored and no more burdensome than necessary to advance the protective goal" of the government. Action for Children's Television v. FCC, slip op. at 26, 11 F.3d 170 (D.C. Cir. 1993); see also, e.g., Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam); Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). This is an overbreadth doctrine: a law is void on its face if it "does not aim specifically at evils within the allowable area of (government) control but . . . sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech." Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940).

The Supreme Court directly addressed the constitutionality of the size and color restrictions in Regan v. Time, Inc. When passing on whether to address the publications clause in Regan, the Supreme Court noted in a footnote:

Given the fact we hold that, even in the absence of both the purpose and publication requirements, the color and size requirements can constitutionally be applied to Time, . . . and that Time has made no showing that the validity of the publication requirement by itself is of any interest to it, we see no need to reach out and decide the latter issue on our own.

Regan, 468 U.S. at 649-50 n. 6, 104 S.Ct. at 3267 n. 6. The plurality manifest their intent in passing solely on the size and color restrictions by stating:

More importantly, even if both requirements were unconstitutional, it does not follow that the entire statute must fail. . . . Justice Brennan seems to misconceive the premise upon which our argument is based as he goes to great lengths to establish that the publication requirement and the purpose requirement "are so completely intertwined as to be plainly inseverable. . . . Our severability argument proceeds on the premise that both the purpose and publication requirements are unconstitutional. Thus, our entire discussion is directed at whether the color and size requirement can survive on their own.

Regan, 468 U.S. at 652 n. 9, 104 S.Ct. at 3269 n. 9.

In considering the validity of the color and size limitations, the Court found the size and color restrictions to be reasonable time, place, and manner regulations. The Court noted that the size and color limitations did not discriminate on the basis of content. The Court rejected an argument that the color restriction was not narrow enough. The Court further stated that "the propriety of the size limitation is even clearer." Id. The Court described the size limitation as "a reasonable and sufficiently precise way of ensuring that the illustrations themselves do not have the capacity to deceive the unwary and inattentive."