First Amendment rights of children

[Tobias Barrington Wolff]

Minors are categorically prohibited from running for public office or from
voting, throughout the U.S.  The Court has not felt the need to subject
these prohibitions to exacting scrutiny.  The Court's justification for
this approach, though not always expressly stated, seems to rely upon
presumptions about a minor's level of maturity and capacity to make an
informed decision about political issues.

 From this doctrinal starting point, there seems to be a strong argument
that children can also be categorically prohibited from attempting to
influence the outcomes of public elections through campaign
contributions.  Here, the difference between expenditures or pure speech,
on the one hand, and contributions, on the other, comes sharply into
focus.  In making a contribution, you seek to facilitate the speech of
others whom you wish to have as your political representatives (whether as
candidates or parties).  While a contribution has speech elements, it
necessarily is mediated through the political agent one selects.  If minors
can be prohibited from becoming political agents themselves, or from
selecting political agents through voting, it would seem to follow that
they can be prohibited from selecting political agents through making
contributions.

-- T

At 05:07 PM 3/6/2002 -0800, you wrote:

>         Adam makes a good point about Nixon, but even in Nixon the Court
> acknowledged that there was going to be substantial scrutiny on
> contribution limits -- certainly more than just O'Brien/Ward intermediate
> scrutiny, 120 S. Ct. at 903.  (Incidentally, I agree that contribution
> limits should be judged under a less demanding standard than expenditure
> limits, perhaps even under the O'Brien/Ward standard, see
> <http://www.law.ucla.edu/faculty/volokh/election.htm>http://www.law.ucla.edu/faculty/volokh/election.htm,
> Part III; I just don't think that the Court has taken this view.)
>
>         But even under this somewhat reduced standard, it seems to me
> that the ban is substantially overinclusive.  It applies even to small
> contributions (say, $50 that a politically active teenager might give to
> a candidate who endorses some cause that the teenager really supports)
> that have no real potential to corrupt anyone; and it applies even to
> contributions by children when the sum of the child's contribution and
> the parent's is far below $1000.  And policing this should be easy:  Just
> require all donations by minors to include the names of the parents, and
> treat contributions of parents and minor children together for purposes
> of the $1000 limit.
>
>         Finally, I'm not sure how much Austin helps here.  First,
> children aren't corporations, and if I'm right in my analysis above, the
> ban on contributions by children is overinclusive even with regard to the
> interest in policing the adult contribution limits; it would surely be
> overinclusive with regard to the Austin interest in preventing supposed
> corrosion of the political process.  Second, if Austin is really the
> relevant precedent, then doesn't that prove too much?  After all, Austin
> allowed a ban even on *independent expenditures* by corporations -- Adam,
> are you saying that the government can bar a child from spending $50 to
> buy a political ad in a school newspaper?
>
>         Eugene
>-----Original Message-----  From:   Adam Winkler
>[SMTP:winkler at ucla.edu]  Sent:   Wednesday, March 06, 2002 4:50
>PM  To:     CONLAWPROF at listserv.ucla.edu  Subject:        Re: First
>Amendment rights of children
>
>In Nixon v. Shrink Missouri Government, the SCt held that  restrictions on
>contributions to candidates leave speech interests  "significantly
>unimpaired" and thus are judged by a less exacting  standard than strict
>scrutiny.  The governmental interests served by  the ban on minor children
>contributions is not to protect children's  assets, but to combat the
>potential for corruption arising from large  campaign contributions. In
>Nixon, as well as a host of early campaign  finance cases going back to
>Buckley v. Valeo, this interest has been  upheld as a compelling one.  It
>is served by the ban on minor  children contributions because thirty years
>of experience with the  FECA has shown that it is a common practice for
>wealthy contributors  to skirt the individual contribution limits by
>contributing in their  children's names.
>
>There is no such experience of regular use of adult "straw men."  Besides,
>the dynamics of the situation are inherently distinct.  In  the two adults
>case, both have to agree and be willing participants  in the fraud.  With
>children, parents just make the contributions and  the children are not
>directly involved.
>
>As for the parade limitation analogy, that would be a much
>more  significant restriction on children's First Amendment rights
>under  the Court's current doctrine.  Contribution limits -- even
>outright  bans (see Austin v. Michigan Chamber of Commerce) -- can be
>justified  to combat political corruption.
>
>Adam Winkler  CLEO/Olin Fellow, University of Southern California Law School


* * *
Tobias Barrington Wolff
Assistant Professor of Law
U.C. Davis Law School
530-754-6981
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20020306/a48ddd7c/attachment.htm