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?

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9 Responses

  1. zephyr teachout says:

    Again, I think I read the argument differently–that the state can chose to make things available through markets or non-markets. Regarding all your questions:

    Hypo 1: The state could not pass that law. The state could pass a law forbidding *paying* for abortions IF it created a non-market mechanism for providing them free to all who wanted them. The state has to provide one method–either market or nonmarket. The key is that it doesn’t HAVE to provide the market mechanism.

    Hypo 2: Same. State could not pass that law. But if it provided free transportation everywhere, it would have more leeway in banning paying for transportation.

    Hypo 3: Same.

    All of these are situations in which the government is not freely providing access to the constitutional right, so it has to allow the use of resources to access that right.

  2. Logan Roise says:


    You are right in stating that it is possible to violate a right by regulating the monies need to engage in that right but we also need to look at who is attempting to exercise that right. Does a legal entity only on paper get afforded the same inalienable rights that I have as a human and citizen of this country?

    For example, if a labor union/corporation has the right to spend money in support of a candidate/issue/legislation/etc, should they then not also have the right to vote on election day? As Justice Kennedy wrote in Citizens United, corporations have special knowledge that is beneficial to the public and should thus be allowed to spend monies freely. But then should they also not being able to vote in favor or in opposition to the candidate/issue/legislation/etc at hand?

  3. Lawrence Solum says:

    Actually, I think we are reading the argument in the same way. The question is not “Is money speech?” It isn’t (except in very unusual circumstances). We both agree that the availability of resources can be required by a right. The claim that I make in the post is very narrow. From the fact that money is not speech, it does not follow that state regulation of money used to enable speech could not violate the freedom of speech. The general point is that “Money is not speech” is not the premise that does the work in the arguments you make in reply to the hypotheticals.

  4. Lawrence Solum says:


    I think you are right to distinguish the two issues. The connection between rights and resources is distinction from the question whether government regulation of associations and groups (including corporations and unions) can violate the freedom of speech. But there is a deep similarity between the two different contexts. Suppose that we were to decide than only natural persons have freedom of speech–and hence that corporations and unions have no free speech rights of their own. There would still be a question whether government regulation of corporate or union speech violated the rights of members, employees, or contractual partners. Newspapers are owned by corporations, but regulation of newspapers could violate the free speech rights of reporters, free lancers, editors, and readers. Universities are owned by corporations (nonprofit ones in the case of traditional universities), but regulation of universities by government can violate the rights of faculty members and students.

  5. zephyr teachout says:

    Okay, I see.

    So here’s where I see it making a doctrinal difference then, perhaps–let me try this out and see if it works–it might not:

    > In the campaign finance context, every individual needs access to political speech. Assume for a second that it is agreed this is just an individual right. Then you would analyze it as you might a right to a lawyer–some money is necessary, but not infinite–so that you wouldn’t necessarily allow for infinite individual spending. You could have restrictions on spending even outside of the contribution context.

    > If 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.

    > If the government created a fully state-funded election system, giving money to candidates who received, say 100,000 signatures or more, or the top 3 signature-getters, then there might be no individual right to donate to campaigns at all.

    All of these would be significant departures from the current doctrine.

  6. Lawrence Solum says:


    Let me zero in on your third hypothetical. Suppose that government created a “fully state-funded system, giving money to candidates” [who met some threshold level of qualification].

    Lot’s of questions would arise. Let’s think about the following:

    (1) What if one of the candidates believes that the state supplied level of resources, although equal for each candidate, is not adequate to express all of the points the candidate would like to make to all of the relevant audiences. Suppose for example, that the level of funding for Presidential candidates in the general elections were $50,000. In those circumstances, would there be a claim that equal public funding did not provide sufficient resources, and hence that the restriction on private funds was a violation of the freedom of speech?

    (2) What is some individual wants to make arguments that none of the candidates is making? Suppose that the level of funding is adequate, but the candidates are running “image ads” and none of them are discussing policy. I would like to run an issues ad, advocating for a candidate on the basis of a particular policy that the candidate favors and his opponents do not. Further suppose that the system of public funding prohibits these individual expenditures. Could this resource restriction violate the freedom of speech?

  7. zephyr teachout says:

    Good hypos (because, in part, they are very real)(and they are part of the reason I support (2) (matching funds) instead of (3)).

    I think the answer to both of your questions is “yes, there would be a claim” and “maybe it would win”–that each would be fact dependent and a lot like the way we analyze the right to a lawyer. Courts would look at “meaningful” speech access rights, etc–with some deference to the legislature, and some skepticism about entrenchment concerns.

    But its certainly possible that a court would examine the facts and say, no, there is enough money for meaningful speech here–in Hellman’s framework, I don’t think you can tell either case on its face. Which, I think, is a good thing–it leads 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.

  8. Logan Roise says:


    Point well taken but I feel like you could distinguish between the corporation and the media outlet (i.e. it would be one thing to regulate the speech of GE and another thing to regulate the speech of NBC). It would get more complicated in regard to a corporation like NewsCorp. I also think it is possible to regulate the rights of a corporation/labor union while not violating the rights of the individuals. Of course, I’m assuming that when you say that the AFL-CIO cannot do X, individual members would still be able to do X individually. Of course, you might then run into constitutional problems with freedom of association (i.e. we pooled together to protect our rights and by restricting our rights as a group you are now violating our individual rights).

    Regardless, I’ve enjoyed reading & commenting on this symposium.

  9. Howard Wasserman says:

    While I support some scheme of public funding, it seems to me these proposals would instantiate the expenditure/contribution distinction. Public funding or other non-market mechanisms do nothing to enable non-candidates to speak, so no “adequate alternative mechanism” is being provided to them. The key would be that candidates/political parties no longer can *accept* contributions from citizens/groups. But what non-market mechanism is in place for these people to be heard? This is what makes Ayres’ “Patriot Bucks” proposal unique–it would extend the mechanism beyond candidates.