Category: First Amendment


Money Never Stops Talking: Doctrinal Implications?

One of the (many!) interesting questions raised in this fascinating discussion is what, if any, doctrinal impact Hellman’s argument would have. I want to suggest two areas where it would make a difference.

(1) The first is that it would require a return to an explicit, grounded, technologically current examination of the resource link between money and speech rights (or money and politically influential speech), instead of skipping that step.

Buckley itself suggests that its money/speech conclusion is technologically and temporally bounded:

“A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached. This is because virtually every means of communicating ideas in today’s mass society requires the expenditure of money. The distribution of the humblest handbill or leaflet entails printing, paper, and circulation costs. Speeches and rallies generally necessitate hiring a hall and publicizing the event. The electorate’s increasing dependence on television, radio, and other mass media for news and information has made these expensive modes of communication indispensable instruments of effective political speech.”

If you take this passage seriously, it sounds a lot like Hellman; it includes a exploration of on the ground resource facts, and explicitly time-bounded observations about the contemporary material requirements of political speech/political influence (which it conflates). The Court refers to the resources required “in today’s mass society”, and references to television, radio, and “hiring a hall.”

It suggests that a significant part of the question is “the quantity of expression,” and the “dept of their exploration.”

Obviously the internet changes the capacity to publicly speak in great quantities and in great depth. The “humblest handbill” is now a facebook update, and does not require printing, paper, and circulation costs—it requires a visit to the public library.

Even the “size of audience reached”, unfortunately lined up as a parallel to depth and quantity, is complicated in an internet era–it is now possible, if not likely, to reach a massive audience without money.

This is not to say that political influence is cheap: today’s mass media is a confusing blend of concentrated MSM, the new data oligarchs like facebook and google news, and personalized media. But it is to say that the technological and media environment are radically different, and it is at least possible (though not likely) for someone with no money to have enormous political influence through online communications.

Under the money=speech rubric, this is not particularly relevant. Under money facilitates speech, these on-the-ground facts are critical: they are in fact the heart of the question.

(2) The second, related, is that it encourages a specific examination of how legislatures in fact distribute political speech and influence rights. Inasmuch as Congress chooses to enable some non-market based access to political speech, it would change the analysis. (Professor Solum and I have been discussing this in another comment thread.) So, for example, if the government created a matching funds system (like the system proposed in FENA in Congress now, where low dollar funds are matched), the amount an individual would have the constitutional right to spend might be diminished.

In both of these ways I suspect that Hellman’s argument would lead to a much more practical, less theoretical, approach towards political corruption and political speech, both of which tend to be overly abstracted and under-described in the courts.


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.


Money Talks Symposium: Equality of Communicative Opportunity

In my earlier post, I suggested that Deborah Hellman is right to focus on the relationship between rights and resources.  “Money is not speech,” but money can buy resources that are necessary to enable speech.  In this post, I would like to address another deep question raised by Hellman.

To raise this question, I want to distinguish between “freedom of speech” as legal doctrine and what I will call “freedom of expression,” referring now to a principle of political morality which may (or may not) match the existing positive law.

The ability to exercise a right can require resources, but resources may be scarce, both in the economist’s sense that they have a price and in the more informal sense that there may be a limited amount of a given resource.  I believe that we have two intuitions about the freedom of expression.  The first intuition is that realizing the freedom of expression is inconsistent with limits on the amount of expression.  If we are engaged in a discussion, and I have another point to make, the freedom of expression requires that I be allowed to make.  The second intuition is that realizing the freedom of expression requires equality of communicative opportunity.  If we are engaged in a discussion, and you are allowed to make a point, then I must be allowed an equal opportunity to respond.  That means that it is inconsistent with the freedom of expression to have a set of legal rules that give some speakers more communicative opportunities and other speakers fewer such opportunities.

What happens when we combine these two intuitions (“unlimited speech” and “equality of communicative opportunity”) with the facts that speech requires resources and that resources are scarce.  In the words of Johnny Mercer, “something’s gotta give, somethings gotta give, something’s gotta give.”

Given scarce resources, unlimited speech for some can interfere with equality of communicative opportunity.  And this tension is particularly noticeable in the context of political speech.  Reaching a mass audience is a resource intensive enterprise.

Deborah Hellman’s position is that “adequacy” is the key, so she formulates the principle that restrictions on speech are permissible only if government provides “an adequate alternative method of distribution.”  Perhaps, but I am not sure that our understanding of freedom of expression as a principle of political morality is captured by the notion of “adequacy.”  Suppose that I have been given an “adequate” opportunity to speak, but there is more that I want to say.  I have additional points to make & additional audiences to reach.  Does the limitation to adequate speech cohere with our intuition that the freedom of expression is violated by limits on the amount of expression? And suppose that I am given an “adequate” opportunity to speak, but someone else is given a greater opportunity?  Isn’t equality of communicative opportunity required, irrespective of the “adequacy” of the opportunity I am provided?

In the context of campaign finance regulation, unlimited speech and equality of communicative opportunity are on a collision course–especially in the context of an economic system that permits pervasive inequalities in the distribution of resources.  A given legal regime can favor either unlimited speech or equality of communicative opportunity, but no regime can simultaneously achieve both.  I think this is the reason that Mike Seidman emphasizes that for him, Hellman’s “article raises very deep questions about whether a regime of civil liberties is really possible without significant reallocation of economic resources.”

I agree with Seidman–these are deep questions, and I am skeptical about the possibility that the notion of “adequacy” can provide a deep and deeply satisfying answer.


Money Talks Symposium: One more thought

I forgot to add one point to my last post – probably because I hate to take issue with Professor Chemerinsky in his valiant defense of my view.  Nonetheless, I would like to point out a divergence between my view and the one he articulates in his post.  He says that recognizing that spending money merely facilitates speech, “it should be appropriate to restrict spending to ensure that more speech really happens.”  This is a much stronger claim than the view I propose and one I am not sure I agree with.  Congress could decide that the means to participate in elections should be distributed on a non-market basis because this is a good that calls for a different distributive principle than ability to pay.  Whether this decision would yield more or less speech, I cannot predict.  Nor do I think that is the gravamen for whether this decision is constitutional.  Rather, I think that the congressional decision affects property, with implications for the exercise of speech, and is permissible so long as Congress provides an alternative distributive mechanism and employs distributive criteria that no not violate other constitutional rights.


Money Talks Symposium: Marketplace of Ideas, Metaphor or Reality?

First let me say how very honored I am that Concurring Opinions is hosting this symposium on my piece, Money Talks But It Isn’t Speech.  I especially appreciate the comments both those challenging my view and those defending it.

I see the questions posed by Lawrence Solum and Mike Seidman as driving at a similar point.  Solum, in particular, begins by agreeing that money provides the means to exercise many rights.  He emphasizes too that money is not the only means, there are other resources one brings to bear in the exercise of rights.  Where a law restricts the use of these means, he argues that it restricts rights or at least makes a prima facie case to be restricting rights.  The examples he offers would allow legislatures to do an end run around rights by simply restricting the means to exercise those rights.  Clearly this isn’t a tenable result.  In the paper, I emphasize both that democratic decision-makers must be free to decide whether goods are to be distributed via the market or instead via other methods and that we must insure that this permission doesn’t allow the legislatures to curtail rights as Solum’s examples suggest.  Here’s how we can do both:  democratic decision makers may decide to distribute a good via a non-market means but in order to do so must provide an alternative method of distribution.  Think of votes and organs here.  Votes are distributed on the basis of age and citizenship, organs on some account of medical need.  Solum’s hypotheticals do not present cases where legislatures have provided an alternative distributive mechanism at all.  Unless the state does so, it has violated the underlying right by curtailing the means to exercise the right.

This brings me to Zephyr Teachout’s thoughtful defense of my view.  She suggests that Congress (or a state legislature) removes a good from the market when it makes it “freely available to all.”  While Congress has provided an alternative distributive mechanism where it makes the good “freely available to all,” I find I cannot adopt this interpretation of my view as I think it is too demanding.  Organs are not freely available to all, nor are votes, babies, sex, etc.   Rather, I think Congress or the state legislature must provide an adequate alternative method of distribution.  The two words to stress here are “adequate” and “distribution.”  Solum’s examples fail this test because they are simply not methods of distribution at all.  I include “adequate” to address the challenge of a case like Mike Seidman’s example of a government that eliminates the market in books and distributes the limited supply on a non-market basis.  Most likely the loss of a market in books would dramatically affect the supply.  If it does so in a way that leads to dramatically fewer books, then the alternative distribution method may not be adequate.  I realize, of course, that determining adequacy will not be easy and can only say now that I am leaving this issue for another day.  This example points out the way that money incentivizes the exercise of rights as well as facilitates it.

Seidman’s  other example raises a slightly different point.  He worries about the criteria that the government might use in distributing abortions (if they were distributed via non-market means).  Here, I inclined in part to agree with Teachout.  Abortions themselves are not scarce, so there is no reason an adequate alternative distributive mechanism wouldn’t provide them to all who present themselves. But the deeper point is that for truly scarce goods – medical resources more generally, for example – a non-market method authorizes the government to decide the criteria of distribution.  Here I think I am going to bite the bullet.  Market based distributions distribute goods based on ability to pay.  Often these distributions are dramatically unjust.  An alternative distributive method of a scare resource will inevitably use a distributive method that will leave someone out.  So long as that scheme doesn’t infringe another constitutional right – Equal Protection most notably – then it is permissible.


John Bingham and the Alien & Sedition Act

We think of John Bingham as a civil libertarian because he called for the extension of the Bill of Rights to the States.  Some of his views on free speech, therefore, may come as a surprise.  (They certainly did to me.)

During President Andrew Johnson’s Senate trial, Bingham (as a House manager) defended the article of impeachment that accused the President of sedition because of his criticisms of Republicans in Congress. In response to defense counsel’s argument that the charge violated the First Amendment, Bingham said that this was wrong because, in his view, the Alien and Sedition Act of 1798 was constitutional.  After pointing out that no court had held the Act invalid, he explained:

“I admit that no such law as that ought to be upon your statute-book, of general opposition and application in the country, except in a day of national peril.  That was a day of national peril.  There was sedition in the land.  The French Minister was abroad in the republic, everywhere attempting to stir up the people to enter into combinations abroad hurtful and dangerous to the security of American institutions.”

. . .

“The freedom of speech guaranteed by the Constitution to all the people of the United States is that freedom of speech which respects, first, the right of the nation itself, which respects the supremacy of the nation’s laws, and which finally respects the rights of every citizen of the republic.  . . . I stand, Senators, for that freedom of speech, but I stand against that freedom of speech which would disturb the peace of nations and disturb the repose of men even in their graves.”

Somehow I doubt that Bingham’s (qualified) endorsement of the Alien and Sedition Acts will be cited by anyone as an expression of the original understanding of incorporation.


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?


Money Talks Symposium: Money as a Means to More Speech

I am delighted to participate in this discussion about Professor Hellman’s excellent article. Having read earlier messages from today, I find that I am much more in agreement with Professor Teachout than with Professor Seidman.

Professor Hellman rightly questions whether spending money in election campaigns should be regarded as a form of speech in itself. As she rightly points out, this is the premise of Citizens United v. Federal Election Commission and has been assumed ever since Buckley v. Valeo. It is often forgotten that in Buckley, the D.C. Circuit came to an opposite conclusion and held that spending money in elections is not itself speech, but rather conduct that communicates.

Money is speech only in that spending money is a form of communicating a message of support. But as Buckley recognized, this is achieved by any size contribution or expenditure. Allowing unlimited contributions or expenditures does not necessarily (though it could) express greater support.

The real argument for protecting spending money in election campaigns is that money facilitates speech. More spending likely translates into more speech. But that does not make spending money speech, just something that leads to more expression. This is the central insight of Professor Hellman’s article: there is a relationship between money and many constitutional rights. Her article very carefully details the different types of relationships that might exist.

Most importantly, once it is recognized that spending money in elections is not itself speech, but rather only a means to more speech, then it should be appropriate to restrict spending to ensure that more speech really happens. In other words, once it is realized that spending money is a means to the end of more speech, then spending can be restricted if it is done for the sake of having more speech occur.


Money Talks Back: A Quick Response to Seidman’s Response to Hellman

Delighted to be here! Deborah Hellman’s article is so wonderful and clear-headed that it makes you feel downright healthy, as if someone had gone into the weeds and, in fact, weeded them. It displays none of the learned helplessness that can often drag down post-Buckley writing, and takes on directly Buckley’s problematic conclusion that the use of money in the political campaign context constitutes protected first amendment speech.

She starts by removing the question from its usual arena—”what is the relationship between money and political speech?”—into a new one—”what is the relationship between money and all constitutionally protected rights?” Money, she points out, is useful to the exercise of most of our constitutional rights. How it is distributed also creates incentives and disincentives to the actual exercise of all of them. However, the incentive relationship between the distribution of funds and the exercise of speech does not mean that all laws limiting certain kinds of spending require the strictest constitutional scrutiny. It would be useful to be able to spend money to exercise the right to sexual intimacy, but Congress is free to ban prostitution. It might be useful for states to pay people to exercise the constitutionally protected right to vote, but Congress is free to ban such payments.

Instead, she suggests, Congress must protect rights, but it can do so in one of two ways—either by making them (the rights) freely available to all, or by allowing the market to make them available, and not banning people from spending money to get them.
This is where I think that Professor Seidman gets something wrong in his interpretation of Prof. Hellman’s article. He suggests that in Hellman’s world, the government could ban selling books and give away only a few, on its own terms. (And the same with abortions).

I take Hellman to be saying something different. I take her to be saying that if it isn’t distributed via the market, it has to be universally distributed by the government. (Like, e.g., the right to a lawyer in a criminal trial). I take her to be saying that if there is a right, there must be a non-monetary way for everyone to exercise that right, or they have to allow people to spend money to access that right.

In other words, the government could never ban writing or creating books, but it could ban buying books if it made every book free. The government could never ban abortions, but it could ban paying for abortions if it made access to abortions universally acceptable.

And so I come to the opposite conclusion of Professor Seidman: I take it to mean that all civil liberties must be protected, but the government has leeway in terms of how to protect them, either by providing them freely, or providing a market for them. The potential doctrinal impact of her article would be to give legislatures more leeway in how—not whether–to enable universal access to constitutionally protected rights.


Money Talks: Civil Liberties and Market Allocations

It is a great honor to participate in this symposium on Deborah Hellman’s fine article.  For me, the article raises very deep questions about whether a regime of civil liberties is really possible without significant reallocation of economic resources.  Let me explain why.

Professor Hellman argues that “Where the good used to effectuate [a] right is distributed via the market, then a right which depends on that good includes the right to spend money,” but not otherwise.  Taken at face value, this assertion is entirely circular.  What a market consists of is a method of allocating goods through the expenditure of money (or some substitute for money).  The assertion therefore amounts to a claim that access to rights can be distributed by markets when they can be distributed by markets.

This apparent circularity is eliminated by Professor Hellman’s assertion, later in the paper, that the political branches should be free to determine whether or not to utilize market allocations.  But this revision avoids circularity only by permitting some strikingly counterintuitive results.  Suppose, for example, the government eliminated the market in books and provided, instead, that the government would allocate a limited supply of books on some nonmarket basis.  Or suppose that the government abolished the right to buy an abortion and, instead, provided that the government would allocate the limited supply of abortions based on its judgment of which women needed them the most.  Surely, these plans would be unconstitutional, but Hellman’s proposal would appear to allow them.

Indeed, on reflection, I think it is clear that Hellman’s proposal means that no civil liberties would be guaranteed against government invasion.  The reason for this is that the exercise of every right is dependent on some sort of property entitlement.  Consider, for example, freedom of speech.  Virtually all speech requires some property, whether it is a printing press, a megaphone, or a computer.  Even a person using nothing but her own vocal cords must speak from some location, and the location is owned by someone.  If the government could eliminate markets in all of this property, then it could allocate the property in other ways that suited its purposes.  It would follow that all speech would be subject to government permission.

In order to avoid this conclusion, there must be some kind of limits on the extent to which government can order and reorder markets.  What are those limits?  One possibility is that the Lochner Court was right after all.  On this view, the Constitution requires laissez-faire ordering,  but not just because “freedom of contract” protects these allocations.  It turns out that freedom of speech protects them as well.

Professor Hellman wants to reject this possibility, and so do I.  It assumes incorrectly that supposedly laissez-faire market allocations are “just there” and are not, themselves, the product of rules that the government is responsible for.  The other possibility, that I favor, is to subject government allocation rules to constitutional criticism on civil liberties grounds.  On this view, the government has an affirmative obligation to establish market rules that permit meaningful exercise of civil liberties.