[EL] the 99%

[Smith, Brad]

I hope that you challenged students on their attraction to this passage. 
 
After all, by this logic, 99% of the people are unable to exercise their right to an attorney (they can't afford the people at the top of the profession, relying on pro bono representation or public defenders of varying quality); their right to property (they can't afford million dollar homes, nice cars, etc); their right to assemble (they can't afford to travel far for meetings) and their right to travel (they just can't travel far); their right to practice religion (they can't leave a large bequest to their church or finance missionary work); or their right to bear arms (few people can afford to buy lots of high quality weapons). Their rights to avoid unreasonable search and seizure are limited (again, they can't hire high priced lawyers). It would also raise serious questions about restricting the rights of media access - for example, why should Stephen Colbert have a TV show, and why should Trevor Potter be allowed to appear on it over and over, when 99.9% will never get such an opportunity? Surely, then, it would not restrict Colbert's rights to limit him to one show per quarter. At least if you think that is a substantial restraint on his First Amendment rights (and those of Viacom), we'd have to wonder what that says about the 99.9% that will never get 23 minutes of television time in their lives.
 
Issues of economic equality are real, but while many have sought to address these inequalities, few have argued that they are best addressed by restricting the rights of those with more resources, or that the rights of "the 1%" are contingent on the economic condition of the "99%," or vice versa.  One might even legitimately ask about whether the costs of limiting First Amendment speech rights are outweighed by the benefits in any particular instance. But the idea that one's ability to exercise one's rights depends on the economic status of others seems like something that students should think about hard. I doubt that many who think about it much really would choose to take that route - at least for those reasons.
 
Bradley A. Smith
Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law
Capital University Law School
303 E. Broad St.
Columbus, OH 43215
(614) 236-6317
http://www.law.capital.edu/Faculty/Bios/bsmith.asp

________________________________

From: law-election-bounces at department-lists.uci.edu on behalf of Rick Hasen
Sent: Fri 11/4/2011 10:46 AM
To: law-election at UCI.EDU
Subject: [EL] ELB News and Commentary 11/4/11



The Ninety-Nine Percent <http://electionlawblog.org/?p=25035>  

Posted on November 4, 2011 7:43 am <http://electionlawblog.org/?p=25035>  by Rick Hasen <http://electionlawblog.org/?author=3>  

Yesterday I began the unit on campaign finance in my election law seminar, and many of the students' reacton papers pointed with admiration to a quote from John S. Shockley, Money in Politics: Judicial Roadblocks to Campaign Finance Reform, 10 Hastings Constitutional Law Quarterly 679 (1983), which appears in an annotated footnote in Buckley v. Valeo.  Here's what John wrote:

	If one agrees with the Court that being able to spend only $25,000 to $50,000 annually on campaigning is in fact a substantial restraint upon constitutional expression, what does this say about the rights of the ninety-nine percent of the American electorate who cannot expend even this 'substantially restrained' amount? Since their ability to speak is presumably restrained even more, where are they to look for the protection of their First Amendment rights?

It is good to know that John's work has stood the test of time, and his 99% reference was entirely prescient!

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