Money Talks Symposium: Adequacy of What?
Thanks to Lawrence Solum for pressing me to clarify what I meant in my prior post regarding an adequate alternative method of distribution. First, I do not believe – as Solum asserts – that “restrictions on speech are permissible only if government provides ‘an adequate alternative method of distribution.’” Rather, there is a real and important difference between a restriction on speech and a restriction on spending that affects speech. Restrictions on spending should not be treated as restrictions on speech in all cases. The question I pose is this: when should restrictions on spending be treated as restrictions on an underlying right; or when do constitutional rights include a penumbral right to spend money? When the state has removed the good that one wishes to spend money on from market-based distribution, no violation of the underlying right occurs. The state may do thatwhen it provides an adequate alternative method of distribution.
To the deeper point about resources, equality and rights: I am not sure we all are committed to equality of communicative opportunity. We are committed to freedom of expression (to use Solum’s terms). And so, the relevant question is how we should understand the relationship of this right to the freedom to spend money as one wants – which we don’t recognize as particularly strong. Just because the exercise of many rights, speech among them, is facilitated by money doesn’t entail that our constitutional free speech right (which includes freedom of expression) should cover the right to spend money on speech in all instances. Sometimes it may not. Moreover, the decision to remove a good from market-based distribution may be motivated by a commitment to equality of communicative opportunity or it could rest on something else like equality of political participation, avoiding the commodification of the political process.