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Ads on coins alleged by Mint to be prohibited by law

The bully-boys at the U.S. Mint are threatening Marvel Comics and the Franklin Mint with a fine under an obscure law that it claims prohibits advertising a promotion for Fantastic Four: Rise of the Silver Surfer, a new movie that 20th Century Fox is bringing out this spring.

Some 40,000 California state quarters were altered to feature a superhero called the Silver Surfer. Essentially, a sticker was placed on the reverse.

As the Franklin Mint press release put it, ?The collector?s ?Silver Surfer? U.S. quarter will be emblazoned with the image of the legendary Marvel Comics character who takes a leading role in the movie. This legal tender coin is a 2005 California statehood commemorative quarter minted by the United States Mint and specially color-enhanced by The Franklin Mint for Twentieth Century Fox.?

The coins with promotional message attached were to be distributed in circulation over Memorial Day weekend, approximately 800 in each state. Those who found the coins could enter contests online at http://riseofthesilversufer.com.

At the Web site, it does not appear that one must have one of the promotional pieces to participate. Contests include a trip for four to premier of the film in London. The film?s release date in the United States is June 15.

The legal issues involved here are similar to the experience, and the threat, that artist Paul Jackson faced with his Missouri state quarter design stick-ons, that the artist J.S.G. Boggs was forced to deal with when Secret Service confiscated his hand-drawn dollar bills and that Time Magazine faced when the Treasury Department ganged up on it for printing color pictures of $100 bills for a cover story on betting.

Under discussion is a law contained in title 18 of the United States Code, section 475.  It reads in pertinent part, ?Whoever designs, engraves, prints, makes …  or utters, issues, distributes … any business or professional card … or advertisement in the likeness or similitude of any obligation or security of the United States … or otherwise impresses upon or attaches … [to] any coin of the United States, any … advertisement, or any notice … shall be fined under this title.?

If taken literally, Jackson, Boggs and Time Magazine would have been prohibited from their conduct. But the aim of the statute is to protect against counterfeiting, not to protect against a robust freedom of expression that is provided for under the First Amendment to the U.S. Constitution. The First Amendment prohibits Congress from regulating freedom of speech.

Lawyer advocates can argue many positions, but the U.S. Solicitor General, in its brief to the Supreme Court in Regan v Time, Inc., put it into this perspective: the issue was the First Amendment and title 18 (in that case, section 474).

That section is similar to the Marvel Comics coin: ?Whoever prints, photographs, or in any other manner makes or executes any engraving, photograph, print, or impression … except by direction of some proper officer of the United States (shall be guilty of a crime).?

The Solicitor General?s brief approvingly quotes from the court that first heard the challenge to the statute: ?The government has a compelling interest in preventing counterfeiting and thus maintaining the integrity of the nation?s currency system.?

Its view of the substantial question raised: ?As the Framers of the Constitution recognized, the power to establish a monetary system is an essential attribute of national sovereignty. … A concomitant of that power is the authority to preserve and maintain the integrity of the nation?s monetary system.?

When the Supreme Court decided the Time Magazine case, footnote 25 shows the key to why section 475 falls to the first amendment. In it, the court ? which essentially required the Treasury to make rules to allow colored reproduction ? sets forth the basis of its thought process, in each case referring to a section of the criminal statutes in title 18 of the U.S. Code.

?Wholly apart from the statutes at issue here, it remains a crime to forge, counterfeit, or alter any United States obligation with intent to defraud, § 471; to pass, utter, publish, or sell … with intent to defraud, § 472; to buy, sell, exchange, transfer, receive, or deliver any forged, counterfeited, or altered obligation with the intent that the same be passed, published, or used as true and genuine, § 473.?

It continues the prohibition ?to possess, with intent to forge or counterfeit … [anything which resembles] … currency, § 474, ¶ 4; to possess, take, sell, or make an impression from any tool, implement, instrument, or thing used for printing or making other tools or things used for printing obligations of the United States, §§ 475, 476.?

In other words, if it is not counterfeiting ? and the Marvel Comics addition through the Franklin Mint is not creating a false coin, rather it is augmenting it through colonizing ? the government lacks a compelling interest to regulate advertisements or otherwise regulate this classic example of speech.

Where this all will go will no doubt ultimately be determined by lawyers, judges and perhaps the Supreme Court itself.

In the meantime, there?s a new collectible in circulation, and a 52nd state quarter to collect. The 51st is Paul Jackson?s stick-on design for the Missouri quarter, where the legal issues are nearly the same. 

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