Money Talks Symposium: Rights and Resources
Deborah Hellman’s marvelous essay aims to establish that “Money is not speech,” and who could disagree with that? But I am not sure that anything follows from that conclusion for free speech doctrine. Like Hellman, I think that the key to understanding this issue is to back away from the particular controversy–money in elections–and consider the general relationship between rights and resources.
Consider a series of hypotheticals in which government regulates resources in ways that impact on the ability of right holders to exercise their rights:
Hypothetical 1: Abortion and Medical Resources. Imagine that the state makes a law the prohibits the use of particular medical resources to perform abortions. Doctors are not allowed to use medical instruments to perform abortions. It is true that “medical instruments” are not the right to choose whether to give birth. But does this fact establish that the constitutional right of choice would not be violated by this resource regulation?
Hypothetical 2: Assembly and Transportation Resources. Imagine that a group of protestors want to hold a demonstration outside a nuclear testing facility in Nevada. The government enacts a law that forbids the use of transportation facilities (buses, taxis, and private vehicles) for the purpose of attending the demonstration. It is true that “buses” are not “assembly”. But does that fact establish that the constitutional right of assembly would not be violated by this resource regulation.
Hypothetical 3: Blogging and Computing Devices. Imagine that I want to blog about legal theory. The government enacts a statute that forbids the use of computing resources (PC’s, laptops, iPhones, etc.) for this purpose. It is true that “laptops” are not “speech. But does that fact establish that the constitutonal right of free speech would not be violated by this resource regulation.
Each of these three hypotheticals can be altered to bring “money” into the picture. What if the government prohibited the expenditure of funds to purchase medical instruments use to perform abortions? What if the government prohibited the expenditure of funds to rent a bus to get to the demonstration? What if the government prohibited the purchase of laptops for the purpose of blogging? In each case, money is the means by which resources are obtained. Of course, it is true that “money is not speech,” but does it follow that regulations of money cannot violate the freedom of speech for that reason?