Regan v. Time, Inc.

468 U.S. 641, 104 S. Ct. 3262, 82 L. Ed. 2d 487, 1984 U.S. LEXIS 147, 52 U.S.L.W. 5084

• Court: Supreme Court of the United States
• Decided: July 3, 1984
• Docket: 82-729
• Status: Published

Opinions

Justice White

announced the judgment of the Court and delivered the opinion of the Court with respect to Part II-A, and an opinion with respect to Parts II-B, II-C, and II-D, in which The Chief Justice, Justice Rehnquist, and Justice O’Connor join.

The Constitution expressly empowers Congress to “provide 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 statutes that together restrict the use of photographic reproductions of 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 Amendment. Appellants ask us to overturn that judgment.

I

Title 18 U. S. C. § 474 was enacted during the Civil War to combat the surge in counterfeiting caused by the great increase in Government obligations issued to fund the war and the unsettled economic conditions of the time. See United States v. Raynor, 302 U. S. 540, 544-546 (1938). The sixth paragraph of that section provides criminal liability for anyone who “prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression in the likeness of any . . . obligation or other security [of the United States] or any part thereof. . . .”¹

This complete ban on the use of photographic reproductions of currency remained without statutory exception for almost a century. However, during that time, the Treasury Department developed a practice of granting special permission to those who wished to use certain illustrations of paper money for legitimate purposes. In 1958, Congress acted to codify that practice by amending² 18 U. S. C. §504 so as to permit the “printing, publishing, or importation ... of illustrations of . . . any . . . obligation or other security of the United States . . . for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums . . . .” 18 U. S. C. § 504 (1). In order to “prevent any possibility of the illustrations being used as an instrument of fraud,” S. Rep. No. 2446, 85th Cong., 2d Sess., 5 (1958) (hereafter S. Rep. No. 2446); H. R. Rep. No. 1709, 85th Cong., 2d Sess., 3 (1958) (hereafter H. R. Rep. No. 1709), and in an effort to avoid creating conditions which would “facilitate counterfeiting,” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3, Congress also adopted three restrictions that the Treasury Department normally imposed on those who were granted special permission to create and use such photographs. First, the illustrations had to be in black and white. Second, they had to be undersized or oversized, i. e., less than three-fourths or more than one and one-half the size of the original. And third, the negative and plates used in making the illustrations had to be destroyed after their final authorized use.³ Therefore, under the present statutory scheme, a person may make photographic reproductions of currency without risking criminal liability if the reproductions meet the purpose (numismatic, philatelic, educational, historical, or newsworthy), publication (articles, books, journals, newspapers, or albums), color (black and white), and size (less than three-fourths or more than one and one-half of the size of the original) requirements of § 504(1), and if the negatives and plates are destroyed immediately after use.

Over the course of the past two decades, Time, Inc., the publisher of several popular magazines, has been advised by Secret Service agents that particular photographic reproductions of currency appearing in its magazines violated the provisions of §§474 and 504. Despite the warnings, Time continued to use such reproductions. When the front cover of the February 16, 1981, issue of Sports Illustrated carried a photographic color reproduction of $100 bills pouring into a basketball hoop, a Secret Service agent informed Time’s legal department that the illustration violated federal law and that it would be necessary for the Service to seize all plates and materials used in connection with the production of the cover. The agent also asked for the names and addresses of all the printers who prepared the cover and requested an interview with a member of Time’s management. Ten days later, Time initiated the present action against the Secretary of the Treasury, the Director of the Secret Service, and others,⁴ seeking a declaratory judgment that §§ 474, ¶ 6, 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.

On cross-motions for summary judgment, the District Court ruled in favor of Time. 539 F. Supp. 1371 (SDNY 1982). The court first determined that Time’s use of the illustrations was speech protected by the First Amendment. It then held that § 474 could not by itself pass constitutional muster because although it was enacted to protect the Government’s compelling interest in preventing counterfeiting, it was overbroad.

The court concluded that the exceptions permitted by § 504 did not save the blanket prohibition because that section presented constitutional problems of its own. Focusing on the requirements that the illustration appear in an article, book, journal, newspaper, or album and that it be used for philatelic, numismatic, educational, historical, or newsworthy purposes, the court held that § 504 could not be sustained as a valid time, place, and manner regulation because it required the Government to make distinctions based on content or subject matter. The court also determined that the purpose and publication restrictions were unconstitutionally vague, observing that “[t]he determination of what is ‘philatelic, numismatic, educational, historical, or newsworthy’ is rife with assumption and open to varying interpretation” and that “[t]he definition of a journal, newspaper or album is anyone’s game to play.” 539 F. Supp., at 1390. The court thus concluded that both § 474, ¶ 6, and § 504 were unconstitutional.

Appellants sought review of the District Court’s decision by invoking this Court’s appellate jurisdiction under 28 U. S. C. § 1252. We noted probable jurisdiction, 459 U. S. 1198 (1983), in order to determine whether the two statutes could survive constitutional scrutiny.

h — 1 HH

The District Court correctly observed that “[bjecause of the interrelationship of Sections 474 and 504, the ultimate constitutional analysis must be directed to the impact of these sections in tandem.” 5B9 F. Supp., at 1385. The exceptions outlined in § 504 apply “[notwithstanding any other provision of this chapter,” including §474. The criminal liability imposed by §474 therefore applies only when a photographic reproduction fails to meet the requirements imposed by § 504. Thus, if the restrictions imposed by § 504 sufficiently accommodate Time’s First Amendment interests, both statutes must be upheld. We accordingly begin our inquiry by focusing on the restrictions imposed by § 504.

A

Appellants assert that the restrictions imposed by § 504 are valid 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 Consciousness, Inc., 452 U. S. 640, 648 (1981) (quoting Consolidated Edison Co. v. Public Service Comm’n of N. Y., 447 U. S. 530, 536 (1980)). Second, it must “‘serve a significant governmental interest.’” 452 U. S., at 649 (quoting Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976)). And third, it must “‘leave open ample alternative channels for communication of the information.’” 452 U. S., at 648 (quoting Virginia Pharmacy Board, supra, at 771). The District Court concluded that the purpose requirement of § 504 could not be sustained as a valid time, place, and manner regulation because it discriminates on the basis of content. We agree.

A determination concerning 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 the statute, one photographic reproduction will be allowed and another disallowed solely because the Government determines that the message being conveyed in the one is newsworthy or educational while the message imparted by the other is not. The permissibility of the photograph is therefore often “dependent solely on the nature of the message being conveyed.” Carey v. Brown, 447 U. S. 455, 461 (1980). Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment. Id., at 463; Police Department of Chicago v. Mosley, 408 U. S. 92, 95-96 (1972). The purpose requirement of §504 is therefore constitutionally infirm.⁵

B

The District Court also concluded on vagueness and other grounds that limiting the exemption from the §474 ban to likenesses of currency contained in “publications” was itself invalid. We do not address that issue, however, because there is no evidence or suggestion that Time, a publisher of magazines, has ever, or will ever, have any difficulty in meeting that requirement.⁶ The validity of the publication requirement, standing alone, is therefore of only academic interest to Time. This Court, as a matter of both constitutional limitation and prudential restraint, does not sit to resolve issues that are of only passing concern to the parties.

Time nevertheless contends that the publication requirement renders the statute overbroad and subject to challenge by a publisher such as Time. Kolender v. Lawson, 461 U. S. 352, 358-359, n. 8 (1983); New York v. Ferber, 458 U. S. 747, 768-769 (1982); Schaumburg v. Citizens for a Better Environment, 444 U. S. 620, 634 (1980); Broadrick v. Oklahoma, 413 U. S. 601, 612-616 (1973); Thornhill v. Alabama, 310 U. S. 88, 98 (1940). The essence of Time’s argument seems to be that even if publishers may constitutionally be required to conform to the other requirements of §504, that section is overbroad because it unconstitutionally precludes nonpublishers from making reproductions of currency even though they meet the other requirements of the statute. However, such an overbreadth challenge can be raised on behalf of others only when the statute is substantially overbroad, i. e., when the statute is unconstitutional in a substantial portion of the cases to which it applies. New York v. Ferber, supra, at 770; Broadrick v. Oklahoma, supra, at 615. How often the publication requirement will be used to prevent a person from utilizing an otherwise legitimate photograph is not clear from the record before us. In describing the noncounterfeiting uses to which photographic reproductions of currency could be put, the House and Senate Committees referred only to situations in which publications were involved.⁷ In light of the paucity of evidence to the contrary,⁸ we may assume that the legitimate reach of § 504 “dwarfs its arguably impermissible applications” to non-publishers. New York v. Ferber, supra, at 773. Therefore, invocation of the overbreadth doctrine is unavailing to Time.

C

The District Court concluded that because the purpose and publication requirements were unconstitutional, the entire regulatory scheme outlined in § 504 was invalid. This was error. First, as noted in Part II-B, the validity of the publication requirement is not an issue that can properly be addressed in this case. More importantly, even if both requirements were unconstitutional, it does not automatically follow that the entire statute must fail.⁹

In exercising its power to review the constitutionality of a legislative Act, a federal court should act cautiously. A ruling of unconstitutionality frustrates the intent of the elected representatives of the people. Therefore, a court should refrain from invalidating more of the statute than is necessary. As this Court has observed, “whenever an act of Congress contains unobjectionable provisions separable from those found to be unconstitutional, it is the duty of this court to so declare, and to maintain the act in so far as it is valid.” El Paso & Northeastern R. Co. v. Gutierrez, 215 U. S. 87, 96 (1909). Thus, this Court has upheld the constitutionality of some provisions of a statute even though other provisions of the same statute were unconstitutional. Buckley v. Valeo, 424 U. S. 1, 108 (1976); United States v. Jackson, 390 U. S. 570, 585-591 (1968); El Paso & Northeastern R. Co., supra, at 96. See also Griffin v. Breckenridge, 403 U. S. 88, 104 (1971). For the same reasons, we have often refused to resolve the constitutionality of a particular provision of a statute when the constitutionality of a separate, controlling provision has been upheld. Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210, 234-235 (1932); Southwestern Oil Co. v. Texas, 217 U. S. 114, 120-121 (1910); Field v. Clark, 143 U. S. 649, 695-696 (1892). Before invalidating the entire statute, we should therefore determine whether the remaining provisions of §504 can survive in the absence of the purpose requirement.

Whether an unconstitutional provision is severable from the remainder of the statute in which it appears is largely a question of legislative intent, but the presumption is in favor of severability. “ ‘Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.’” Buckley v. Valeo, supra, at 108 (quoting Champlin Refining Co. v. Corporation Comm’n of Oklahoma, supra, at 234). Accord, United States v. Jackson, supra, at 585. Utilizing this standard, we are quite sure that the policies Congress sought to advance by enacting § 504 can be effectuated even though the purpose requirement is unenforceable.

One of the main purposes of the 1958 version of § 504 was to relieve the Treasury Department of the burden of processing numerous requests for special permission to use photographic reproductions of currency. The legislation was designed to “obviate the necessity of obtaining special permission from the Secretary of the Treasury in each case where the use of . . . illustrations [of currency was] desired.” S. Rep. No. 2446, at 6; H. R. Rep. No. 1709, at 4. At the same time, Congress was aware that in granting requests in the past, the Secretary had imposed size and color limitations in order “[t]o prevent any possibility of the illustrations being used as an instrument of fraud.” S. Rep. No. 2446, at 5; H. R. Rep. No. 1709, at 3. Congress determined that the easiest way to ease the administrative burden without undermining the Government’s efforts to prevent counterfeiting was to codify the then-existing practice, relying heavily on the Treasury Department’s opinion that “the printing in publications of black-and-white illustrations of paper money . . . restricted in size will not facilitate counterfeiting.” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3. This congressional desire to ease the administrative burden without hindering the Government’s efforts to enforce the counterfeiting laws can be achieved even if the purpose requirement is eliminated from the statute.¹⁰ There is no indication that Congress believed that the purpose requirement either significantly eased the Treasury Department’s burden or was necessary to prevent the exception from being used as a means of circumventing the counterfeiting laws. Thus, if the size and color limitations are constitutional,¹¹ Congress’ intent can in large measure be fulfilled without the purpose requirement. We therefore examine the size and color restrictions in light of the First Amendment interests asserted by Time.

D

In considering the validity of the color and size limitations, we once again begin with appellants’ contention that the requirements are sustainable as reasonable time, place, and manner regulations. 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. More importantly, the Government does not need to evaluate the nature of the message being imparted in order to enforce the color and size limitations. Those limitations restrict only the manner in which the illustrations can be presented. They are thus similar to the decibel level restrictions upheld by this Court in Kovacs v. Cooper, 336 U. S. 77 (1949), and the size and height limitations on outdoor signs upheld by other courts, Baldwin v. Redwood City, 540 F. 2d 1360, 1368-1369 (CA9 1976), cert. denied sub nom. Leipzig v. Baldwin, 431 U. S. 913 (1977); Temple Baptist Church, Inc. v. City of Albuquerque, 98 N. M. 138, 146, 646 P. 2d 565, 573 (1982); Krych v. Village of Burr Ridge, 111 Ill. App. 3d 461, 464-466, 444 N. E. 2d 229, 232-233 (1982). Therefore, the size and color limitations pass the first of the three requirements of a valid time, place, and manner regulation.

The size and color limitations also meet the second requirement in that they effectively serve the Government’s conced-edly compelling interest in preventing counterfeiting. Time contends that although the color restriction serves the Government’s interest in preventing counterfeiting, it is nonetheless invalid because it is not narrow enough. Time asserts that the color restriction applies to an illustration of currency regardless of its capacity to deceive and is thus broader than is necessary to achieve the Government’s interest in preventing counterfeiting. However, Time places too narrow a construction on the Government’s interest and too heavy a burden .on those enacting time, place, and manner regulations. The Government’s interest in preventing the color photographic reproduction of currency is not limited to its desire to prevent would-be counterfeiters from utilizing the illustration itself. The requirement that the illustration be in black and white is also designed to make it harder for counterfeiters to gain access to negatives that could easily be altered and used for counterfeiting purposes. Only one negative and plate is required for black-and-white printing. On the other hand, the color-printing process requires multiple negatives and plates. This increases a counterfeiter's access to the negatives and plates and enables him to more easily use them for counterfeiting purposes under the guise of a legitimate project. In opposing a recent bill designed to eliminate the color restriction, a Treasury Department official noted these concerns, stating that “[t]he size restriction alone does not address the problem of widespread possession of color separation negatives, nor does it impact upon the availability of a ready-made alibi for the possessors.” Statement of the Honorable Robert E. Powis, Deputy Assistant Secretary of the Treasury, before the Subcommittee on Criminal Justice, House Judiciary Committee on H. R. 4275, reprinted in App. D to Juris. Statement 43a. It is therefore sufficiently evident that the color limitation serves the Government’s interest in a substantial way. That the limitations may apply to some photographs that are themselves of no use to counterfeiters does not invalidate the legislation. The less-restrictive-alternative analysis invoked by Time has never been a part of the inquiry into the validity of a time, place, and manner regulation. It is enough that the color restriction substantially serves the Government’s legitimate ends.¹²

The propriety of the size limitation is even clearer. The size limitation is a reasonable and sufficiently precise way of ensuring that the illustrations themselves do not have the capacity to deceive the unwary and inattentive. Indeed, Time does not advance any serious challenge to the legitimacy of that requirement.

The color and size limitations are therefore reasonable manner regulations¹³ that can constitutionally be imposed on those wishing to publish photographic reproductions of currency. Because the provisions of §474 are of real concern only when the limitations of § 504 are not complied with, § 474 is also constitutional.

H-H J — ( h — i

The District Court correctly determined that the purpose requirement of § 504 is unconstitutional.¹⁴ However, it erred in failing to consider the validity of the remaining portions of the statute that applied to Time. Because the color and size limitations are valid, neither §474 nor §504 is unconstitutional 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.

1 Congress first made it a crime to “print, photograph, or in any other manner execute” an impression “in the likeness” of any United States security in 1862. Act of Feb. 25,1862, ch. 33, §§ 6, 7,12 Stat. 347-348. Two years later, Congress broadened the prohibition to include the making of any such print or photograph. Act of June 30,1864, ch. 172, § 11,13 Stat. 221-222. The statute was reenacted, with few changes, as § 5430 of the Revised Statutes of 1878, and again as § 150 of the codification of 1909. Act of Mar. 4, 1909, ch. 321, 35 Stat. 1116. The statute was reenacted once again with minor changes in the 1948 recodification of the penal laws. Ch. 645, 62 Stat. 706.

2 Section 504 was originally enacted in 1923 to authorize certain illustrations of postage and revenue stamps. Act of Mar. 3, 1923, ch. 218, 42 Stat. 1437. The 1958 amendment was a wholesale revision of the statute.

3 In 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 importation 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 United States, and

“(D) postage stamps, revenue stamps, notes, bonds, and any other obligation or other security of any foreign government, bank, or corporation for philatelic, numismatic, educational, historical, or newsworthy purposes in articles, books, journals, newspapers, or albums (but not for advertising purposes, except illustrations of stamps and paper money in philatelic or numismatic advertising of legitimate numismatists and dealers in stamps or publishers of or dealers in philatelic or numismatic articles, books, journals, newspapers, or albums). Illustrations permitted by the foregoing provisions of this section shall be made in accordance with the following conditions—

“(i) all illustrations shall be in black and white, except that illustrations of postage stamps issued by the United States or by any foreign government may be in color;

“(ii) all illustrations (including illustrations of uncanceled postage stamps in color) shall be of a size less than three-fourths or more than one and one-half, in linear dimension, of each part of any matter so illustrated which is covered by subparagraph (A), (B), (C), or (D) of this paragraph, except that black and white illustrations of postage and revenue stamps issued by the United States or by any foreign government and colored illustrations of canceled postage stamps issued by 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 in accordance with this section.”

4 In addition to the Secretary of the Treasury and the Director of the Secret Service, the defendants included the Attorney General, the United States Attorney for the Southern District of New York, and the Special Agent in charge of the Secret Service’s New York Field Office.

5 Appellants do not defend the constitutionality of the purpose requirement as written. Brief for Appellants 27-28; Tr. of Oral Arg. 10-14. They ask us to construe the statute narrowly in order to avoid the constitutional conflict, contending that the references to the various purposes are merely descriptive and illustrative, rather than prescriptive and mandatory. However, appellants are unable to suggest any meaningful interpretation of the purpose requirement that would survive constitutional scrutiny. If the requirement means only that the photograph must serve some purpose, it is meaningless because every photograph serves some purpose. On the other hand, 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. Assuming that Congress intended the language to have some meaning, we conclude that the entire purpose requirement is unconstitutional. In 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 used to prohibit nonpublishers from ever using photographic reproductions of currency since much of the discussion in his opinion concerns the constitutionality of the publication requirement. Post, at 679-690. As clearly stated above, and as we reiterate here, we express no opinion as to the validity of the publication requirement since Time has failed to show that that requirement affects its conduct in any way. It may well be that a person could not constitutionally be prohibited from using a reproduction which conformed with every portion of the statute other than the publication requirement. But that is an issue which must be raised by someone who has been, or will be, precluded from using such a reproduction for that reason.

Justice Brennan also suggests that we should decide whether the publication requirement is invalid on the basis that it is inextricably intertwined with the unconstitutional purpose requirement. However, Time has not made that argument. Time argues that the publication requirement is unconstitutional because it is vague and overbroad, not that it should be struck down because Congress would never have included the requirement in the statute in the absence of the purpose requirement. Given the fact that 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, infra, at 656, 658-659, 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.

7 The Committees observed that photographic reproductions of currency could be used for many legitimate purposes. “Publishers of textbooks often desire to use illustrations of 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 to picture the currency in circulation during a particular historical period. Newspapers quite often publish pictures of paper money or checks in connection with news articles . . . .” S. Rep. No. 2446, at 5; H. R. Rep. No. 1709, at 3.

8 Time cites one instance in which a person may have been prevented from utilizing a photographic reproduction of currency because it failed to appear in one of the enumerated publications. Wagner v. Simon, 412 F. Supp. 426, 431, n. 6 (WD Mo. 1974), aff’d, 534 F. 2d 833 (CA8 1976). But one arguably unconstitutional application of the statute does not prove that it is substantially overbroad, particularly in light of the numerous instances in which the requirement will easily be met. See n. 7, supra.

Justice Brennan maintains that we misconstrue the overbreadth doctrine by focusing on the one prior instance in which the statute was arguably 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 by Time. There is no evidence that the Government has ever, or will ever, interpret the statute so as to prevent Polaroid snapshots of children holding currency or any of the other hypothetical activities conjured up in Time’s brief. It is important to remember that the overbreadth doctrine operates as an exception to the normal rules of standing. Thus, it is up to the party invoking the doctrine to demonstrate “a realistic danger that the [ordinance] will significantly compromise recognized First Amendment protections of parties not before the Court.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 801 (1984) (emphasis added). Justice Brennan states that we should remand the case to provide Time with an opportunity to make that showing, suggesting that Time had no idea that such a showing would be required. Post, at 680, n. 18. This ignores the fact that it was Time, not this Court, which first argued that it had standing to challenge the publication requirement because of the overbreadth doctrine. See Brief for Appellee 41, n. 29 (“The Government. . . argues that Time has no standing to raise this issue .... This strategy . . . flies in the face of traditional First Amendment overbreadth analysis, under which Time is permitted to challenge § 504 on behalf of those to whom the statute would be unconstitutionally applied”).

9 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 . . . .” Post, at 677. See post, at 665-677. 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 requirements can survive on their own.

10 Justice Brennan seems to agree that the purpose requirement does not significantly advance Congress’ express interest in easing the Treasury Department’s administrative burden. Post, at 676-677, n. 14. Similarly, he does not dispute our conclusion that the statute can serve the other purpose expressed by Congress — to ensure that the exception would not permit counterfeiters to circumvent the law — even in the absence of the purpose requirement. Instead, he argues that Congress had some other, paramount interest in mind when it enacted the statute and that that interest cannot be achieved once the purpose requirement is struck down. This overriding congressional interest, according to Justice Brennan, is to “permit illustrations for purposes Congress considered worthwhile.” Post, at 673. However, nothing in the legislative history of the 1958 amendment indicates that Congress’ overriding concern in expanding the purpose requirement was to promote certain worthwhile activities. There is no discussion in the legislative history concerning which activities were considered to be most worthwhile or why some activities were more worthwhile than others. Instead, the statute referred to illustrations for numismatic, educational, historical, and newsworthy purposes only because those were the types of activities for which the Treasury Department had received exemption requests in the past.

“The Treasury Department receives numerous requests for special permission to use illustrations of paper money . . . for various legitimate purposes. Publishers of textbooks often desire to use illustrations of United States savings bonds and postal money orders, for example in school textbooks. Collectors of old paper money likewise wish to use illustrations in articles relating to their issue and in collector’s catalogs. Historians similarly want to use illustrations of paper money to picture the currency in circulation during a particular historical period. Newspapers quite often publish pictures of paper money or checks in connection with news articles, usually because of ignorance of the statutory prohibitions against the use of such illustrations.

“Paragraph (1) of section 504... as it would be amended by the bill, will specifically permit such illustrations for numismatic, educational, historical, and newsworthy purposes and will obviate the necessity of obtaining special permission from the Secretary of the Treasury in each case where the use of such illustrations is desired.” S. Rep. No. 2446, 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 of 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 the absence of the purpose requirement.

11 Time does not challenge the constitutionality of the requirement that the negatives and plates be destroyed immediately after the final authorized use. Id., at 9, n. 11.

12 Justice Brennan argues that the color restriction at issue in this ease is invalid because one of the interests served by that restriction — prohibiting counterfeiters from gaining access to color negatives and plates and from having an instant alibi for possessing those items — was not adequately expressed in the 1958 legislative history. Post, at 688-690, n. 27. Although Congress never expressly articulated this specific interest when it enacted the legislation in 1958, it did state that in 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 exception would not “facilitate counterfeiting.” S. Rep. No. 2446, at 5-6; H. R. Rep. No. 1709, at 3. Justice Brennan does not dispute that this interest is furthered by the color requirement’s effect of limiting the availability of negatives and plates to would-be counterfeiters. Instead, he argues that the particular negatives and plates used by Time would be of little assistance to counterfeiters and that the asserted interest is adequately served by other provisions of the statute. Post, at 688-690, n. 27. Neither of these arguments is persuasive.

First, in determining whether a time, place, and manner regulation substantially serves the Government’s interest, the effectiveness of the regulation should not be measured solely by the adverse consequences of exempting a particular plaintiff from the regulation. Clark v. Community for Creative Non-Violence, ante, at 296-297; Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640, 652-653 (1981). If Time is exempted from the color requirement, so must all others who wish to use such reproductions. While Time may consistently use negatives and plates that are of little use to counterfeiters, there is no way of ensuring that others will adhere to that practice.

Second, the fact that the Government’s interest is served to some degree by the requirement that the negatives and plates be destroyed after their final use does not render the color requirement superfluous. During the time that the negatives and plates are in existence for legitimate purposes, they can still be used for counterfeiting purposes, possibly by the same individuals who are creating the legitimate reproductions. Coupled with the other interest served by the color requirement — to prevent the unwary from being deceived by otherwise legitimate reproductions — we believe that the Government’s interest in the increased deference provided by the color requirement in this respect is sufficient to override whatever interest Time might have in printing the reproduction in color.

13 Time does not suggest that the color and size restrictions are invalid because they fail to leave open ample alternative channels of communication. Nor would such an argument be persuasive. Time is free to use whatever means it wishes to communicate its ideas short of using color photographs that do not meet the size requirement. The alternative means of communication left open are almost limitless.

14 All Justices except Justice Stevens agree that the District Court was correct to this extent.

15 The Justices joining this opinion and Justice Stevens disagree with and reverse the District Court in these respects.