The Jury Talks Back


A (Hopefully) Provocative Question

Filed under: Uncategorized — Leviticus @ 9:54 pm

Regarding the recent Supreme Court ruling which classifies as unconstitutional previous restrictions on the donation of money to political campaigns/causes:

Assume the following set of premises:

1) The donation of money to political causes may be classified as a manifestation of the right to free speech (per Supreme Court precedent, apparently).

2) It is unconstitutional to restrict free speech.

3) The government is constitutionally empowered to tax its citizens.

4) To take money from someone is to restrict their ability to donate that money to a cause (political or not).

5) To tax someone is to take money from them.


Conclusion: taxation is unconstitutional, as a restriction on free speech.

Could someone point out the flaw in this reasoning? I mean, I’m certainly willing to accept that there is one, but I’d like someone to point out which of the assumptions I’ve made is incorrectly worded, or unwarranted (per stare decisis), or whatever.

For my part – insofar as both the power of Congress to tax and the right to free speech are expressly delineated in the Constitution – I’m inclined to think that the treatment of monetary donation as a form of free speech is bullshit, especially for anyone who argues that we ought to try to discern the intent of the Framers in our judicial decisions. I’m inclined to think that it was an ill-considered decision designed to complement corporate personhood, and nothing more.


  1. I think not paying taxes could equally impact freedom of speech. Cause of the anarchy.

    Comment by happyfeet — 2/4/2010 @ 10:06 pm

  2. It’s hard to follow this hypo because #4 is stretching. Sure, it’s strictly accurate in the most extreme sense.

    But we have never recognized a single word in our constitution to that level. congress can restrict libel, even though the 1st amendment says it can’t restrict speech. Congress can keep me from bearing arms in divorce court, even though the 2nd Amendment seems to say no infringing is possible.

    I guess once you say money = speech or contributions = speech, you open up the door to absurd language analysis. Of course contributing to a political campaign is speech and freedom of association, but those interests compete with other interests.

    And it’s by that framework that we look at how our government infringes are most crucial rights. Does the government have a good enough interest to, say, restrict me from bearing a bazooka in a public school? Yes. To restrict me from having a shotgun in my truck? No. To tax me even though I want to spend every penny I have on speech? Yes. To tell me I cannot speak out against a politician 3 days before an election? No.

    It’s just possible to make this black and white enough to avoid these frameworks. It’s unfortunate. I’d love to just have total freedom of speech, no exceptions. But no one is seriously arguing for that, so it’s OK to tax even though it is an abysmally slight restriction on a potentiality for speech.

    Comment by Dustin — 2/4/2010 @ 10:08 pm

  3. I spell “our” as “are” lol. I am such a putz.

    Comment by Dustin — 2/4/2010 @ 10:09 pm

  4. “To tell me I cannot speak out against a politician 3 days before an election?”

    – Dustin

    Yeah, but what the hell does that mean? Does it mean “donate 2 million dollars with the stipulation that it be used to put out an attack ad that smears my opponent, provided that I disclose my donation within a reasonable time frame?”

    And where the hell did that come from, from a judicial standpoint? Where is the Constitutional argument that the Founding Fathers meant it to be construed as such?

    I don’t know.

    Comment by Leviticus — 2/4/2010 @ 10:18 pm

  5. I don’t know.

    That’s ok… No one who supports it knows either…

    But they sure do believe it.

    Comment by Scott Jacobs — 2/4/2010 @ 10:36 pm

  6. You have a government mandated obligation to pay income taxes if you are in the half of the population which owes them.

    If you have any money left over after satisfying your obligation to the government, the government may not restrict your free speech rights by limiting your ability to donate your money to a political campaign.


    Comment by daleyrocks — 2/4/2010 @ 11:10 pm

  7. Good Question Leviticus –
    My answer would be that taxation is applied equally, and therefore does not restrict speech.

    Which is what Justice Thomas seemed to be saying today when he described his fascination “that the people who were editorializing against it (free corporate speech) were The New York Times Company and The Washington Post Company,…These are corporations.”

    Allowing the government to pick and choose which corporations are allowed to sponsor political speech and which ones are not seems to me to be a pretty blatant Constitutional violation.

    Ideas should stand or fall on their own merit, not due to the origins of the messenger.

    Comment by Apogee — 2/4/2010 @ 11:26 pm

  8. I think it would be something of a stretch to say that taxation is applied equally, one way or another (though I agree with your last two sentences).

    Comment by Leviticus — 2/4/2010 @ 11:50 pm

  9. The problem isn’t so much with your logic as your premise: #2 is too broad. If any law that restricted any constitutionally protected right at all were unconstitutional, all laws would be unconstitutional. Since you liberals don’t get those pedestrian rights like freedom of speech that are actually written in the Constitution, let’s consider instead the most important constitutional right of all, the one too important to actually include in the Constitution itself: abortion. No one argues that sales tax on Blu-Rays is unconstitutional because paying a little more for a movie leaves less money in the bank to pay for that all-important abortion. But suppose instead we had a tax specifically targeting abortion, especially if that tax was extremely high? Or if, rather than merely taxing abortions we forbade people to spend any money on it at all? No problem, you say. Money is not abortion!

    Or suppose that DC wants to get around Heller, and Chicago wants to get around the expected result of McDonald, so rather than trying to ban guns per se they pass new ordinances forbidding every resident to spend any money at all in the acquisition, use or maintenance of a firearm. No problem by Leviticus. Money isn’t guns!

    And everyone knows we are an overlawyered country, with justice only for the highest bidder. Let’s have “clean” law where public funds provide free lawyers under certain circumstances, and no one is allowed to pay a private lawyer anything. No constitutional problems there, money is not due process!

    OK, so maybe the lame “money isn’t X” meme doesn’t work for the Abortion Amendment, the Second Amendment, or any other amendment except that embarrassing First. Surely it does apply to other clauses of THAT amendment, right? I take it you’d have no problem with a law providing public financing for churches (and synagogues, mosques, etc.) while forbidding individuals to donate any money of their own. Money is not religion!

    Bugger that. You liberals know as well as the rest of us that money is whatever the hell you spend it on. You just don’t like the free exchange of ideas.

    Comment by Xrlq — 2/5/2010 @ 5:25 am

  10. No problem by Leviticus. Money isn’t guns!

    I think you’re putting words in Leviticus’s mouth. He specifically equates money with free speech, so I find it unlikely that he would not extend the same sort of logic to gun ownership (or at the least he would consider your example, well, stupid).

    For that matter, I’m not sure I can recall Leviticus’s stance on a) Heller or b) gun ownership in general…

    Comment by Scott Jacobs — 2/5/2010 @ 6:56 am

  11. “I’d love to just have total freedom of speech, no exceptions. But no one is seriously arguing for that, so it’s OK to tax even though it is an abysmally slight restriction on a potentiality for speech.”

    – Dustin

    I think that’s right – in fact, I think your whole comment encapsulates the logical response to this line of reasoning fairly well: there will of course be some minor restrictions on the rights delineated in the Constitution, to account for the necessary powers of government, but it is the job of the Courts to ensure that those restrictions remain minor – exceedingly minor, in fact.

    And actually, Scott, Xrlq understood the implicit point I was trying to make – that money is not in fact speech – and (frankly) demolished it. I hadn’t really thought about it that way, Xrlq – because, to my mind, a government ban on spending money on firearms would indeed be a clear violation of the Second Amendment. And I think the parallel is legitimate, so (by the logic of the argument), a government ban on political donations (designed to communicate preference)would indeed be a clear violation of the First Amendment.

    I think the reason this seemingly simple parallel never occurred to me is that I was (at least in the context of this question) stuck in the mindset of “money is speech“, not (as you say) the correct mindset of “money is whatever the hell you spend it on” – perhaps speech, in certain instances, and thus speech, in certain instances. If money is nothing more than a means to an end, than interfering with the means interferes with the end.

    Okay. Thanks. Consider my position on this one altered. I really meant it when I said my position on this could change – I just didn’t pick up on the subtlety of the distinction between “money is speech” and “money is what you spend it on.”

    But Scott’s right – my actual political stances on some of these things might suprise you. My stance on gun ownership, for instance, is that it’s constitutionally protected (with allowance for minor restrictions, per Dustin’s comment above). I actually like guns quite a lot, and come from an extended family of gun owners.

    Comment by Leviticus — 2/5/2010 @ 12:50 pm

  12. Neither Leviticus nor I have views which strictly adhere to what many regular posters here believe to be the liberal party line.

    As an example: I don’t like guns and am part of a social milieu which considers gun ownership to be eccentric at best and dangerous at worst, but I think it’s clear that the constitution protects gun ownership. I don’t like it, but the issue was decided long before I was born, and unless I can convince everyone else, I have to live with it.

    Comment by aphrael — 2/5/2010 @ 1:26 pm

  13. unless I can convince everyone else, I have to live with it.

    Not everyone else..

    Just 2/3 of the House and Senate, then 50+% of the population of 75% of the States…


    Comment by Scott Jacobs — 2/5/2010 @ 6:57 pm

  14. Just 2/3 of the House and Senate, then 50+% of the population of 75% of the States…

    and ultimately, the people with the guns.

    just because the people in elected office vote for ratification doesn’t mean the people necessarily support the decision. if they decide to write a new declaration of independence, they can start over without the sheep, but with the guns. molon labe.

    Comment by redc1c4 — 2/6/2010 @ 3:17 pm

  15. There’s also that pesky 16th Amendment.

    Comment by nk — 2/7/2010 @ 3:32 am

  16. […] restrictions on campaign contributions and ads are okey dokey under the First Amendment because “money is not speech.” Technically, of course, it’s not, but has anyone seriously considered the implications of the […]

    Pingback by damnum absque injuria » “Money Is Not Speech” — 2/12/2010 @ 6:58 pm

  17. Nicely done. A salute to Leviticus.

    Comment by Machinist — 2/22/2010 @ 8:30 pm

  18. I’m inclined to think that the treatment of monetary donation as a form of free speech is bullshit

    I’m inclined to agree. If somebody is busted for buying drugs, can he claim that his “free speech rights” are violated because he can’t spend his money as he pleases?

    I don’t think this question is directly related to the recent SCOTUS opinion though.

    Comment by Subotai — 2/23/2010 @ 3:44 pm

  19. I’m inclined to think that it was an ill-considered decision designed to complement corporate personhood, and nothing more.

    I think the real question here relates to “corporate personhood”. It’s definition has largely been forged by “common law” – the decisions of a succession of judges. Those decisions are based on little more than the opinions of earlier judges.

    Personally, I’d be fine with Congress stripping corporations of most of the attributes of personhood. Including that they pay taxes and can donate to political campaigns.

    But that’s a policy decision. As a legal matter I think the recent SCOTUS ruling was in line with legal precedent.

    Liberals being liberals, they probably agree with me on the solution but will always prefer that policy be set by the Court and not the Congress.

    Comment by Subotai — 2/23/2010 @ 3:54 pm

  20. Leaving aside the monetary aspect, I think your logic fails in that you assume that anything government-mandated that takes away your time to engage in speech is unconstitutional:

    1. I have the right to spend “my time” on free speach.
    2. Anything that takes away my freedom of speech is unconstitutional.
    3. Jury duty takes away “my time” that could otherwise be used for free speech.
    4. Jury duty is unconstitutional.

    As a second hypothetical, if you are correct regarding freedom of speech not applying to corporate entities, does freedom of the press apply to corporate entities? If so, why?

    Comment by Civilis — 2/24/2010 @ 3:23 am

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