prove: a) that the person charged was the person who actually defaced the bill in question; and,
b) that the person who stamped the bill in question did so with the specific intent to “render the
bill . . . unfit to be reissued.”
Unlike people who the participate in the “Where’s George” project, who actually record the
serial numbers of the bills they mark, it will be almost impossible for the Secret Service to
identify individuals participating in this campaign, in that most people will stamp bills outside
the presence of police authorities and then put the bills into the stream of commerce.
An exception to this would be people who stamped their bills in public, such as at festivals, or,
using the mobile “Rube Goldberg Machine.” It is conceivable, but unlikely (given limited
government resources), that the Secret Service could “stake-out” such public stampings in order
to identify the stampers.
Even if the government can prove the identity of the stamper, a conviction for defacing currency
under 18 USC 333 will be difficult for the government to obtain, because of the need for the
government to prove that the stamper acted “with the intent to make the bill unfit for reissue.”
Specific intent, as the term implies, means more than the general intent to commit the act.
The fact that the stamp might, indeed, make the bills unfit for reissue, is not relevant. In the case
of 18 USC 333, Congress defined the crime to punish only those persons who act “with the
intent to make the bill unfit for reissue.” It is that specific mental state, rather than the actual
withdrawing of the bill from circulation, that the Government is required to prove beyond a
reasonable doubt in order to win a conviction. see Patterson v. New York, 432 U.S. 197, 211, n.
12, (1977).
People stamping bills in this case would actually have the opposite intent. Rather than trying to
get the bills taken out of circulation, stampers would be acting with the hope, and the intent, that
the bill would remain in circulation for as long as possible, to promote the stamp’s message to as
many recipients as possible.
For those reasons, I believe that conviction under 18 USC 333 is unlikely.
b. Using paper money to create advertising is prohibited by 18 USC 475 which states:
[w]hoever . . . writes, prints, or otherwise impresses upon . . . to any [coin or currency] of the
United States, any business or professional card, notice, or advertisement, or any notice or
advertisement whatever, shall be fined under this title. (Emphasis added).
It is unlikely that 18 USC 475 would be applicable to this bill marking campaign. The statute, on
its face, appears to prohibit marking, or otherwise altering, U.S. currency for the purpose of
turning it into a vehicle for commercial advertising. Participants in this campaign would be
marking, or otherwise altering, U.S. currency for the purpose of engaging in expressive conduct
protected by the First Amendment.
Assuming, for the sake of argument, that 18 USC 475 is applicable to this case, 18 USC 475 is
different from 18 USC 333, in that 18 USC 475 is not “content- neutral.” Instead it appears to
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be an effort by the Federal Government to protect the "physical integrity" of a privately owned
bank note in order to preserve the bank note’s status as a symbol of the Nation.
This is evidenced by the fact that 18 USC 475 pertains to U.S. currency, only (18 USC 333
applies to bank notes owned by any nation’s federal reserve banking system); and, by the fact
that the statute is not a blanket prohibition of any forms of defacement, but, instead appears to be
an attempt to protect the symbol value U.S. currency, by keeping it from becoming a mere
vehicle for commercial advertising.
In United States v. Eichman, 496 U.S. 310 (1990), the U.S. Supreme Court considered the Flag
Protection Act of 1989 (FPA), a federal law passed in reaction to the Supreme Court’s decision
in Texas v. Johnson. 491 U.S. 397 (1989), which upheld the right of a political protestor to burn
the American flag, In Eichman, the Supreme Court held that, even though the FPA contained no
explicit content-based limitation on the scope of prohibited conduct,” it is nevertheless clear that
the Government's asserted interest is "related `to the suppression of free expression," 491 U.S. at
410.
The Eichman Court then went on to hold that statutes which place content-based restrictions on
expression must be subjected to "the most exacting scrutiny," quoting Boos v. Barry, 485 U.S.
312, 321 (1988). Applying that “most exacting scrutiny,” the Court found that the Government's
stated interest - protecting the "physical integrity" of a privately-owned flag in order to preserve
the flag’s status as a symbol of the Nation interest [could not] justify its infringement on Mr.
Eichman’s First Amendment rights. United States v. Eichman, 496 U.S. 310 at 318.
18 USC 475, on its face, is a content-based restriction on expression, in that it restricts
commercial advertising. Applying it, wrongfully, to prohibit the expressive conduct envisioned
by this bill-stamping campaign, would also be a content-based restriction.
Applying Eichman’s “most exacting scrutiny” would likely result in the statute being
struck down as it relates to this clearly protected political speech.
