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.

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4 Responses

  1. Lawrence Solum says:


    Thanks for correcting me re your view–and please excuse my mischaracterization.

    I am not quite sure what your position is. Here are two possibilities:

    (1) Government must provide an “adequate substitute” if it curtails resources for expression.

    (2) Government must provide a system of rights such that each person has “adequate” resources for expression.

    Or something else?


  2. “am not sure we all are committed to equality of communicative opportunity. We are committed to freedom of expression (to use Solum’s terms).”

    I’m far from certain these are the same thing. The only equality I’m committed to is equality of rights, which generally does NOT result in any other sort of equality.

    “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.”

    Or it could, as in the case of campaign ‘reform’, be motivated by the desire of politicians that a wide class of speakers STFU. Can we stop pretending that incumbent politicians, who get to write these laws, are passing them out of noble, upright motives, and the fact that they make life hard on challengers is just accidental?

    Here’s something people defending these sorts of regulations seldom address: The people crafting the laws have an UNAVOIDABLE conflict of interest. One of massive proportions.

    Whatever theoretical motives for regulations impacting political speech might, in a perfect world, justify such regulations, we are not in that perfect world. We’re in the one where incumbent officeholders write such laws with the aim of disadvantaging challengers by forcing people they don’t want speaking to shut up.

  3. Deborah Hellman says:


    Thanks for pressing me on this point. I think I need to give this further thought but here’s what I am thinking now. My view is basically your #1 but I must confess I’m troubled a bit by your wording. Here’s how I think about it. Consider the following three examples. The first is a narrower version of your #1.

    A. Government forbids spending money on election-related communications

    B. Government forbids spending money to buy babies

    C. Government forbids spending money to buy books

    Can the state do any of these things or should A and C be seen as restrictions on freedom of speech and B as a restriction on procreative liberty? In my view, this depends on whether the government has removed the good in question (election-related communications, babies and books) from the market. To determine if it has done so it must have provided an adequate alternative method for distributing each of these goods. Public financing of elections or other possible schemes (I don’t mean to take a position about what is best) would satisfy this requirement in A. Family law and adoption law which provide that babies belong to their genetic parents except when adopted through particular procedures etc. provides such in the second. It is harder to see how the state could do this in the third. While public libraries are a step, money provides incentives to produce books such that curtailing their sale would likely dramatically reduce the supply. This leads me to think that alternative distributive mechanisms would not be adequate.

    However, here’s where I am troubled and especially appreciate your pressing these points. Clearly one could make the same argument I’ve made re books about the supply of organs. In fact, Eugene Volokh makes precisely this point in arguing that the right to buy organs ought to be seen as part of the right to direct one’s medical care. Will I need to change my view and side with him on this?

    Second, I imagine your saying that one can always argue that whatever resources the state provides for election-related communications or something else are not in fact adequate. Here I’m torn then between two ways to go on this. First, I could pull back from the adequacy prong and say instead only that the state must adopt a method of distribution. This approach disposes of your hypos from the first post but not the books case. Alternatively, I could stick with adequacy and think about adopting Seidman’s deconstructivist approach (which I have so far resisted) and say that the State always has an obligation to insure that rights can be adequately exercised. This would have a positive dimension – making sure folks had resources to exercise rights – and a negative dimension – setting the floor for what the state must ensure before it can remove private spending from the ambit of the right.

    I realize this isn’t as well expressed as it could be but hope you see where I am going here.

  4. This whole conversation has the feel of a bunch of academics coming together after Brown v Board of Education to discuss how separate but equal is constitutional, and pointedly refusing to come to grips with the fact that separate never was going to be equal, because the people demanding separate didn’t WANT equal.

    You just don’t want to face the elephant in the room, do you?