Legal Commentary

Money-as-Speech Versus Speech to Get Money

By Orin Kerr

Over at Slate, Temple law professor David Kairys argues that conservative judges have been inconsistent in enforcing the principle that spending money can have a speech component protected by the First Amendment. He writes:

The first theory appeared in a 1976 decision, Buckley v. Valeo, which invalidated some campaign-finance reforms that came out of Watergate. The Court concluded that most limits on campaign expenditures, and some limits on donations, are unconstitutional because money is itself speech and the ?quantity of expression??the amounts of money?can?t be limited.

But in subsequent cases, the conservative justices who had emphatically embraced the money-is-speech principle didn?t apply it to money solicited by speakers of ordinary means. For example, the court limited the First Amendment rights of Hare Krishna leafleters soliciting donations in airports to support their own leafleting. The leafleting drew no money-is-speech analysis. To the contrary, the conservative justices, led by Chief Justice Rehnquist, found that by asking for money for leafleting?their form of speech?the Hare Krishnas were being ?disruptive? and posing an ?inconvenience? to others. In other words, in the court?s view, some people?s money is speech; others? money is annoying.

The problem with this argument is that the Hare Krishna case did not involve a money-as-speech claim. The Hare Krishna leafletters were not trying to spend money in order to be heard, only find their efforts to spend money blocked by law. Instead, they were trying to speak in order to raise money. In order to, well, have more money. Whatever you think of the money-as-speech argument ? and I have found Eugene?s short article on it quite persuasive ? it doesn?t seem to be implicated in a case that involves the regulation of speech directly.

Full post as published by The Volokh Conspiracy on January 24, 2010 (boomark / email).