Reply Brief — Boggs v. Summers

supreme Court, Uf

fI UR

No. 98-1785 AUG 17 1999

SseeenUi Ide LER

IN THE

Supreme Court of the United States

J.S.G. BocGs,

Petitioner,

Vv.

LAWRENCE H. SUMMERS, BRIAN L. STAFFORD,

and JANET RENO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONER

KENT A. YALOWITZ

Counsel of Record

ARNOLD & PORTER

399 Park Avenue

New York, New York 10022

(212) 715-1000

DENNIs G. LYONS

ARNOLD & PORTER

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

August 17, 1999 Attorneys for Petitioner

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WILSON - Eps PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

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TABLE OF CONTENTS

Page

Bt BI III scniececilusilscsinitenibiniaecariamietuamtieie po 1

a. Respondents’ “Remedy” Argument 2

b. Respondents’ Failure to Address Freedman... 6

2. Ex Parte Submission 200000000000... ce ccccccccecoeeecseeoecoeen 7

Failure to Review the Record 2.0000...0.0.-..ccccccccecce---. 8

PT EE ae 10

ii

TABLE OF AUTHORITIES

Cases: Page

A Quantity of Copies of Books v. Kansas, 378 U.S.

I ND venchidtidiestenaenee 8,4

American News Co. v. Ladas, 454 F. 2d 1287 (6th

Cir. 1972) 5

Astro Cinema Corp. v. Mackell, 422 F. 2d 298 (2nd

rs SEWED sxtcisenessssessepassenivcuicaioonsdaananeanencs 5

Bethview Amusement Corp. v. Cahn, 416 F.2d 410

CB GRR: TIRED ssivinsbccncintensinns 5

6

4

5

Carey v. Piphus, 485 U.S. 247 (1978) ......................-

Cinema Classics, Ltd. v. Busch, 339 F. Supp. 43

(C.D. Cal. 1972), aff’d, 414 U.S. 946 (1978)......

City of Duluth v. Wendling, 237 N.W.2d 79 (Minn.

1975) .. sienna ik cutie ilies aaa

Cooper v. City of Greenwood, 904 F.2d 302 (5th

CRE. RID cicssencvscctincatenentiatenaisisndemaiainas tienes adie 3

Fort Wayne Books v. Indiana, 489 U.S. 46 (1989).. 4

Freedman v. Maryland, 380 U.S. 51 (1965).......... passim

Huffman v. United States, 470 F.2d 386 (D.C. Cir.

1971), conviction vacated on further appeal, 502

Pane 20 CD. Ca Se ction 5

Johnson v. City of Rochester, 197 N.W.2d 244

(Minn. 1972) ............... 5

Lee v. City of Rome, 866 F. Supp. 545 (N.D. Ga.

BINED. snitansenscsnioniicstnndceceiimiiapelbiadepnesiies adie 5

Marcus v. Search Warrant, 367 U.S. 717 (1961)... 4

Metzger v. Pearcy, 393 F.2d 202 (7th Cir. 1968)... 5

New York Times Co. v. Sullivan, 376 U.S. 254

Ca a sccsivveinccsiesisisscetcnitisesin thes Mithiataiambama ucadanannetta acerca 8

People v. Superior Court, 104 Cal. Rptr. 876 (Cal.

CR AO, TG ae scevsctentcocininceonnians 5

Platt Amusement Arcade, Inc. v. Joyce, 316 F.

Ben. SS Cer ae Fs PE cette eee 5

Sooner State News Agency, Inc. v. Fallis, 367 F.

Supp. 628 (N.D. Okla. 1978) ....................-ccccccoseeee 5

State v. A Quantity of Copies of Books, 379 P.2d

254 (Kan. 1963), rev’d, 378 U.S. 205 (1964)... 3

Tyrone, Inc. v. Wilkinson, 410 F.2d 689 (4th Cir.

TD ccentssivnsenitinniiinainiiiaiaemman aimee ; 5

iii

TABLE OF AUTHORITIES—Continued

Page

United States v. 37.29 Pounds of Semi-Precious

Stones, 7 F.3d 480 (6th Cir. 1998) _....00000.. 3

United States v. Alexander, 428 F.2d 1169 (8th

IRATE D aA SE Tie SES ARE AD ar TI 5

United States v. Pryba, 502 F.2d 391 (D.C. Cir.

STII saictccscaelaceasbidcheaciidalctliraliedle tied ee 5

\@

In THE

Supreme (wrt of the United States

No. 98-1785

J.S.G. Boacs,

¥. Petitioner,

LAWRENCE H. SUMMERS, BRIAN L. STAFFORD,

and JANET RENO,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

REPLY BRIEF FOR PETITIONER

1. Prior Restraint.—The Petition demonstrates that

the self-help confiscation of Boggs’ art without any pro-

cedural safeguards was a gioss departure from established

First Amendment requirements. The Petition also dem-

onstrates that the lower courts approved this departure

on the ground that erotic expressive material charged

with obscenity is entitled to more First Amendment pro-

tection than other speech.

Respondents do not and cannot deny that Boggs’ art is

entitled to protection under the First Amendment. They

do not and cannot deny that they did not provide any-

thing resembling the process this Court mandated in

Freedman v. Maryland, 380 U.S. 51 (1965), and its

progeny. And they do not and cannot deny that the

2

Freedman safeguards apply to a wide variety of speech—

not just erotic expression.

Respondents also ignore the views of amici—who con-

firm that Boggs is a well-regarded artist whose work

merits serious consideration, drawing attention to issues

concerning the interplay between art and money and the

many ways in which they coexist.*

a. Respondents’ “Remedy” Argument.—Respondents’

principal argument in opposition to the Petition is not to

deny the importance of the issue or even to defend the

lower courts on the merits but to make an oblique sugges-

tion that this Court may not be in a position to effect

the relief Petitioner seeks: the return of his art as a

remedy for the First Amendment violations he has suf-

fered. Respondents’ argue that the First Amendment

violation must go without a remedy because “contraband

per se” may never be returned. Opp. 10-14.?

In the first place, Respondents’ position begs the ques-

tion because it assumes that Boggs’ art was “contraband

per se,” although that was an issue on which the govern-

ment had the burden of proof. An item is not “contra-

band per se” until the government proves that the item

1 Respondents’ case seems to turn in large part on a wooden

translation from the French of the phrase “trompe Veil.” The

fact of the matter is that trompe l’oeil works of art do not fool

the brain, they fool the eye—for an instant; they tease the viewer,

as does Boggs’ art. If they did actually deceive, they would not

be works of art. Because Respondents insist on distorting the na-

ture of Boggs’ work—which is not in the record because of the

extraordinary departures in the courts below from normal judicial

procedures—Petitioner respectfully invites the Court to evaluate

the two representative samples of Boggs’ work attached hereto

(App. la to 4a).

2 Respondents also claim that even if the art was not contra-

band and was improperly seized, they could not be made by the

courts to give it back (Opp. 10-11 n.5), a position for which they

cite no authority. See infra pp. 3-5 & n.4, p. 10.

3

fits a valid statutory prohibition.* In this case, the only

“proof” has come in an ex parte hearing of which no

transcript was taken and in which neither the alleged

“contraband” nor copies of it nor any description of it

ever made it into the record.

Even on its own terms (that is, assuming that Boggs’

art or portions of it were contraband) Respondents’ sug-

gestion is wrong for two reasons. First, this and other

courts have held repeatedly that the remedy for the im-

proper seizure and retention of property presumptively

protected by the First Amendment, invalid for absence

of an adversary hearing, is: the return of the material.

Even the District Court, which ruled against Boggs, recog-

nized that “Boggs accurately notes that the proper remedy

for the unconstitutional seizure and retention of [expres-

Sive] property is the return of the material.” Pet. App.

30a. The District Court’s statement was indisputably

correct.

In A Quantity of Copies of Books v. Kansas, 378 US.

205, 206-08 (1964), the books at issue had been seized

without a prior adversary hearing. Less than two months

after the seizure, a state trial court held a hearing and

adjudged the books to be obscene. See State v. A Quan-

tity of Copies of Books, 379 P.2d 254, 255 (Kan. 1963),

rev'd 378 U.S. 205 (1964). That determination, as well

as the order to destroy the books, was affirmed by the

State appellate courts. Id. at 257. This Court accepted

the state courts’ post-seizure determination that the books

at issue were obscene—and thus contraband per se—but

3 See, e.g., United States v. 37.29 Pounds of Semi-Precious

Stones, 7 F.3d 480, 485 (6th Cir. 1998) (“fuJntil the United

States proves [the elements of the statute rendering the stones con-

traband including] illegal importation, the gemstones are not the

property of the United States”); Cooper v. City of Greenwood, 904

F.2d 302, 305-06 (5th Cir. 1990).

4

held that the post-seizure hearing did not cure the First

Amendment violations that had occurred, and reversed

the order authorizing their destruction. 378 U.S. at 208,

212-13.

Indeed, this Court has expressly and repeatedly rejected

the claim that the status of particular expressive materials

as “contraband” constitutes a defense for failure to follow

constitutionally required procedure in their seizure. See

A Quantity of Copies of Books, 378 U.S. at 211-12 (“it

is no answer to say that obscene books are contraband”);

Marcus v. Search Warrant, 367 U.S. 717, 730-31 (1961)

(“assimilation of obscene literature to gambling para-

phernalia and other contraband . . . does not answer the

appellants’ constitutional claim, but merely restates the

issue whether obscenity may be treated the same way”);

Cinema Classics, Ltd. v.-Busch, 414 U.S. 946 (1973),

affg 339 F. Supp. 43, 48-49 (C.D. Cal. 1972) (“De-

fendants assert that they have the right to retain all of the

materials seized regardless of the legality of the warrants

or the legality or illegality of the manner in which they

were executed. They assert this right of retention on the

theory that the materials seized are ‘contraband.’ This

argument must be rejected.”); see also Fort Wayne Books

v. Indiana, 489 U.S. 46, 66-67 (1989) (emphasizing

that the government cannot escape these constitutional

safeguards through its characterization of the seized ma-

terials). The presumption of First Amendment protec-

tion for expressive materials cannot be rebutted until

the “claimed justification for [seizure] . . . is properly

established in an adversary proceeding.” Id. at 67.

Respondents fail to discuss or distinguish these hold-

ings. They also fail to acknowledge the multitude of

cases ordering return of expressive material—material

that the government generally contended to be “contra-

5

band per se”—as a remedy for First Amendment viola-

tions.*

Second, Respondents’ approach would turn on its head

the standard laid down by this Court in Freedman v.

Maryland, and followed repeatedly in case after case. In

Freedman, the Court ruled not only that any seizure of

expressive materials must be for a brief and specified

period, but also that the government must bear the bur-

den of going to court to suppress the speech and bear

the burden of proof once in court. 380 U.S. at 58-59.

Respondents do not even cite Freedman. Instead, they

suggest a radical new approach derived from Carey v.

Piphus, 435 U.S. 247 (1978), a case interpreting the

Fourteenth Amendment. Under Respondents’ approach,

the government would be free to seize expressive material

and then do nothing. The speaker would then have the

burden of going to court and, once in court, proving that

the expressive material is not “contraband.” Merely stat-

ing Respondents’ position demonstrates what a radical

4E.9., United States v. Pryba, 502 F.2d 391, 404 n.97 (D.C. Cir.

1974) (ordering return of First Amendment materials seized with-

out prior adversary hearing); American News Co. v. Ladas, 454

F.2d 1237, 1240 (6th Cir. 1972) (same) ; Huffman v. United States,

470 F.2d 386, 392 (D.C. Cir. 1971) (same), conviction vacated on

further appeal, 502 F.2d 419 (D.C. Cir. 1974); Astro Cinema Corp.

v. Mackell, 422 F.2d 293, 298 (2nd Cir. 1970) (same); United

States v. Alexander, 428 F.2d 1169, 1176 (8th Cir. 1970) (same) ;

Bethview Amusement Corp. v. Cahn, 416 F.2d 410, 411-12 (2d Cir.

1969) (same); Tyrone, Inc. v. Wilkinson, 410 F.2d 639, 640-41 (4th

Cir. 1969) (same); Metzger v. Pearcy, 393 F.2d 202, 203-04 (7th

Cir. 1968) (same); Lee v. City of Rome, 866 F. Supp. 545, 552

(N.D. Ga. 1994) (same); Sooner State News Agency, Inc. v. Fallis,

367 F. Supp. 523, 528-29 (N.D. Okla. 1973) (same); Platt Amuse-

ment Arcade, Inc. v. Joyce, 316 F. Supp. 298, 299-300 (W.D. Pa.

1970) (same); City of Duluth v. Wendling, 237 N.W.2d 79, 82-83

(Minn. 1975) (same); People v. Superior Court, 104 Cal. Rptr.

876, 890-91 (Cal. Ct. App. 1972) (same); Johnson v. City of

Rochester, 197 N.W.2d 244, 247 (Minn. 1972) (same).

6

departure it would be from this Court’s First Amendment

jurisprudence. The other cases cited by Respondents

(Opp. 12) involve the return of non-expressive contra-

band, and say nothing about the appropriate remedy for

a violation of the First Amendment.

b. Respondents’ Failure to Address Freedman.— When

Respondents finally get to the merits, they have almost

nothing to say. They ignore the First Amendment cases

holding the Freedman safeguards applicable to all kinds

of speech, including political speech, charitable fund-

raising, news reporting, popular entertainment, and even

commercial speech. See Pet. 15-16 & nn.8-10, 19 &

n.12. In fact, Respondents do not even cite Freedman

itself. They merely claim that the lower courts were

correct in “declining” to “extend” (Opp. 16) the Freed-

man safeguards beyond the context of “obscenity,” be-

cause obscenity seizures require the exercise of “quite

subjective” judgment. Opp. 15. But the standard for

obscenity prosecutions (“whether to the average per-

son, applying contemporary community standards, the

dominant theme of the material taken as a whole appeals

to the prurient interest” (Opp. 15)) does not appear any

more “subjective” than the standard for counterfeiting

prosecutions (whether the items “bear such a likeness or

a resemblance to a genuine [bill] . . . as is calculated

to deceive an honest, sensible and unsuspecting person of

ordinary observation and care supposed to be honest and

upright” (Pet. 17 & n.11)). Both standards require in-

terpretation of what the “average” or “reasonable” person

would think about the intent or purpose of a picture: the

obscenity standard requires judgment about whether the

average person would think the picture “appeals to the

prurient interest” and the counterfeiting standard requires

judgment about whether a reasonable person would think

enn

7

the picture is “calculated to deceive.” (On that question,

see the exemplars appended to this Reply Brief.)

Moreover, Freedman and its progeny turned on the

opportunity for unsupervised censorship, not on the quan-

tum of judgment the censor must exercise. Even the

panel majority conceded that the counterfeiting standard

requires the exercise of “some j dgment” (Pet. App. 7a)

and Judge Rogers, in dissent, pointed out that it was the

questionable “judgment” of the Secret Service and the

District Court that a sponge and a bow tie could be “cal-

culated to deceive” as is required by the statute at issue

here (Pet. App. 13a).

2. Ex Parte Submission.—Respondents never come to

grips with the ex parte nature of the proceedings in the

District Court. In fact, the words “ex parte” do not ap-

pear in Respondents’ Opposition. Instead of defending

the ex parte receipt of the core evidence in the case, Re-

spondents pretend that the defects complained of in the

Petition were merely that there was argument on paper

rather than orally in open court, and that the procedure

took place in chambers rather than in open court. But

the process afforded did have some other difficulties, which

Respondents do not mention, namely that: Boggs did not

know which objects the government had submitted to the

Judge for his consideration; Boggs did not have copies of

the objects or even a list describing them; the J udge did

not identify the particular objects that he found to be

contraband; Boggs had no opportunity for particularized

argument concerning the particular objects; and neither

the objects nor any copy or description of them ever made

it into the record. Respondents offer no justification for

this radical departure from the ordinary judicial process

other than to distort the record, misleadingly stating that

Boggs “declined” to make the evidence available to the

District Court (Opp. 8); the record shows that the evi-

8

dence has been under lock and key in the vault of the

Secret Service since 1992 (Pet. App. 18a). Respond--

ents fall back on the absurd contention that the burden

was on the plaintiff, through a motion for reconsideration

after the court had entered a judgment infected by these

irregularities. But the right to appellate review has never

depended on making a motion to reopen a final judgment.

3. Failure to Review the Record.—Compounding the

procedural anomalies at the district court, the Court of

Appeals simply refused to look at the core evidence in

this dispute. This behavior drastically departed from es-

tablished judicial conduct and the rule of other circuits.

See Pet. 24-26. Respondents’ excuse (Opp. 19-20)—

that Petitioner waived its right to seek appellate review on

the merits of the confiscation—has never been invoked by

a Court of Appeals in any case (let alone a First Amend-

ment case) to abdicate its responsibiilty to conduct actual

appellate review. As explained in the Petition, the Court

of Appeals had a duty under New York Times Co. v. Sul-

livan, 376 U.S. 254, 284-86 (1964), “to make an inde-

pendent examination of the whole record” in cases that

implicate First Amendment issues. Respondents do not

address or even cite Sullivan.®

* * * *

5 Respondents’ assertion that Petitioner opposed the Government’s

offer to present the bills to the Court of Appeals (Opp. 20) is sim-

ply a missatement of the proceedings below. Point I of Boggs’

Brief cited this Court’s opinion in Sullivan for the proposition that

the Court of Appeals has an independent duty to review the whole

record, and expressly requested a remand for the purpose of, at

minimum, supplementation of the record. When Respondents pro-

posed in their brief for Appellees that they could make a further

ex parte submission to the appeals court, Petitioner noted that fur-

ther proceedings dehors the record would be improper. And at

oral argument, when the Respondents appeared with their “trove

of confiscated art” (Pet. App. 18a), Petitioner expressly requested

that the Court of Appeals look at the art and order the record sup-

plemented. Petitioner followed with a written motion, which the

court denied.

NN eT eT

9

The prohibition on prior restraints is a matter of broad

public interest, and the standards to be followed in for-

feiture proceedings govern more than 2,000 cases per

year in the federal courts alone. See Judicial Business of

the United States Courts: 1997 Report of the Director

at 132 (Table C-2A). Yet Respondents claim that this

case is “unrelated to any generalized issue of national

importance.” Opp. 19. Perhaps this means that while

there are many producers (artists and others) of erotic

material, Boggs appears to be the only artist producing

works of art that satirize and spoof money and that bear

a resemblance to the currency—or at least the only one

that the Treasury has gone after. Or perhaps it means

that the procedural irregularities in this case were so

bizarre that no other court will follow this case as a

precedent.

Neither of those two notions detracts from the impor-

tance of granting certiorari here. Just as producers of

erotic material charged with producing “obscenity” are

entitled to a hearing to determine whether their material

is within the constitutional bounds of what can be sup-

pressed as being “obscenity,” an artist producing works

of art that bear a resemblance to the currency is entitled

to a hearing as to whether his work can be suppressed

under the counterfeiting statute, to the extent that it may

be constitutionally applied. There was no hearing given

Boggs either prior to or after the seizure of his works.

The exemplars of his work chosen by the government for

submission to the District Court were not identified to

Boggs or his counsel; no government brief analyzing them

one by one and arguing for their constitutional coverage

by the statute was submitted, and Boggs had no oppor-

tunity to submit a contrary brief prior to decision: the

Court’s action was ex parte, without supporting find-

ings, without any analysis work by work, and the ex-

emplars examined by the Court in chambers were not

10

even put in the record. The grant of summary judgment

to the Treasury under these circumstances was a travesty.

That departures so wide from the Federal Rules of Civil

Procedure and the fundamental requirements of procedu-

ral due process are blessedly rare does not detract from

the importance of this case, involving not only an ex-

traordinary departure from procedural regularity but also

the important question of the applicability of the rule

announced in Freedman and applied uniformly in the

intervening years. Moreover, the government’s assertion

(Opp. 10-11 n.5) that even if the works were not contra-

band, the doctrine of “sovereign immunity” precludes the

courts from ordering their return, notwithstanding the

First Amendment’s protection of free speech and the

Fifth Amendment’s protection of private property, is so

odious as to suggest that this case be taken to extirpate

that notion, as well as to teach the proper scope of the

Freedman case and to correct the gross departures from

procedural due process sanctioned below.

CONCLUSION

For the foregoing reasons, and for the reasons stated

in our Petition, the Petition for a writ of certiorari should

be granted.

Respectfully submitted,

KENT A. YALOWITZ

Counsel of Record

ARNOLD & PORTER

399 Park Avenue

New York, New York 10022

(212) 715-1000

DENNIs G. LYONS

ARNOLD & PORTER

555 12th Street, N.W.

Washington, D.C. 20004

(202) 942-5000

August 17, 1999 Attorneys for Petitioner