# Reply Brief — Boggs v. Summers > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0776%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Reply Brief - **Published:** January 1, 1999 - **Citation:** 528 U.S. 811 ## Text 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 ncaa WILSON - Eps PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001 1% Ox 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0776%3A5. Public record. Not legal advice.