[EL] Money as speech

[Paul Sherman]

Howard,

These aren't simple-minded questions; you've pointed out widely used analogies in campaign-finance debates, and they merit a serious response.  So here goes:

There are two questions here:  Why is money speech?  And why isn't money merely volume?

As to the first question, the argument for why the First Amendment is implicated when government restricts spending on political speech has been covered in lots of places, so for more on that, I'll just direct you to this blog post by Eugene Volokh, which I would have just ended up paraphrasing anyways: http://www.volokh.com/2010/01/24/money-and-speech-2/.

As to the second question, the analogy of money to a sound system fails because it conflates two different meanings of the word "volume."  Volume can mean the quantity or power of sound, or it can mean a quantity or amount of something else.  These different meanings matter.  If you're on a public street and someone is using a bull horn at high volume, it may make it physically impossible to hear other messages.  But if you're on a public street and someone is engaged in a "high volume" of handbilling, there's no problem, because handbilling-even a lot of it-doesn't prevent you from discerning other messages.  Similarly, a high volume of television ads doesn't actually prevent you from hearing other television ads, because television ads run sequentially, not simultaneously.  (There are lots of other relevant distinctions between publicly owned physical spaces and privately owned communications media that make the broader "drowning out" analogy either unpersuasive or constitutionally problematic, but these few are sufficient to convey my point.)

To be sure, volume in the sense of amount makes a big difference in political debates.  A message heard or read multiple times is likely to be more persuasive than a message heard or read only once.  But as a general matter we don't allow (or trust) the government to regulate speech for the purpose of ensuring that speakers are not unduly persuasive.  Instead, we let speakers decide for themselves how much of their own money they want to spend on peaceful political expression, and we trust the public to decide for itself whether that expression is persuasive.

Best,
Paul



---------------------------
Paul M. Sherman
Senior Attorney
Institute for Justice
901 N. Glebe Rd., Suite 900
Arlington, VA 22203
Phone: (703) 682-9320
Fax: (703) 682-9321
psherman at ij.org

From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of demesqnyc at aol.com
Sent: Tuesday, September 23, 2014 9:57 AM
To: law-election at department-lists.uci.edu
Subject: [EL] Money as speech

I have what is probably a simple and simple minded question for the assembled delegation: Why is money speech?  It seems to me money is not speech, it is volume.  We would not allow the person with the largest sound system to drown out all others, we would regulate the volume at which they communicate.

Why is money different.  It does not convey any message in and of itself, it simply amplifies the speech you choose to make.  It is not only acceptable, but expected, that we will not allow unlimited noise, on our streets or in our debates, why is money more sacrosanct than the maximum ability of my vocal cords and diaphragm?

Howard Leib
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