Legal Commentary

Money and Speech

By Eugene Volokh

People continue to characterize the Court?s campaign finance decisions as resting on the theory that money is speech. And of course money isn?t speech.

But, as I wrote a few years ago, money isn?t abortion, either. Nonetheless, a law that banned the spending of money on abortion would surely be a serious restriction on abortion rights (whether or not you think that the Court was right to recognize such rights). A law that capped the spending of money for abortions at a small amount, far smaller than abortions often cost, would likewise be a burden on abortion rights, and dismissing this argument as ?it is quite wrong to equate money and abortion? would be unsound.

Likewise, money isn?t education, and it isn?t lawyering. Yet a law that capped private school tuitions at $2000 (not just limited the amount of government-provided scholarships, but capped private spending by parents for tuition) would be a serious, likely unconstitutional, burden on the right to educate one?s child at a private school. Likewise, a law that barred wealthy defendants from spending more than $20,000 ? or even $200,000 ? for assistance of counsel would violate the Sixth Amendment. Even if for some reason you thought that these laws should be upheld, the response that ?it is quite wrong to equate money and [education / lawyering]? would be an unsound response.

Similarly, we wouldn?t say ?air travel is speech,? or ?computing power is speech.? Yet surely a law that would limit the use of air travel or computers in political campaigns would be understood as a serious restriction on speech.

The problem with restrictions on independent spending on campaign speech ? a problem recognized by Justices Brennan and Marshall and not just by today?s conservatives (though Brennan and Marshall would have allowed more such restrictions than today?s conservatives do) ? isn?t that money is speech. It?s that restricting the use of money to speak, like restricting the use of air travel or computers to speak, interferes with people?s ability to speak. One can debate whether this interference is justified. But mocking the pro-constitutional-protection position as resting on the notion that ?money is speech? strikes me as quite mistaken.

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