First Amendment rights of children

Scarberry, Mark Mark.Scarberry at PEPPERDINE.EDU
Thu Mar 7 17:32:37 PST 2002

Part of my earlier point was that Congress may be recognizing that minors
usually do not control their own property and thus that a political
contribution from a minor is a sort of forced subsidization of political
speech out of funds not belonging to the one who decides to make the
contribution. Congress may see that as an evil. Cf. the union dues cases.
I'm not sure that Congress has Article I authority to prohibit gifts being
made to the NRA or to NARAL out of a minor's property--remember some of the
Founders thought the limited powers given to Congress would prevent it from
acting to prohibit speech--but where Congress is dealing with federal
elections it may have power. Thus the underinclusiveness (failing to
prohibit other kinds of contributions) may be inherent in the limited power
of Congress.

Having said that, I think the provision violates the first amendment as
applied to a minor who has control over the funds which are contributed, at
least where the minor's contributions when attributed to a parent would not
cause the parent to exceed the contribution limits.
Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at

 -----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Wednesday, March 06, 2002 10:55 PM
Subject: Re: First Amendment rights of children

        Indeed, if a law prohibited *all* gifts by children, in any amount,
we might have a different story; that law could be seen as genuinely aimed
at protecting the child's property.  I wouldn't support such a law, and
perhaps even this law would have some constitutional problems, but I agree
that it could be defended by the protect-the-property rational.

        But when the law allows gifts generally -- and surely no law
prohibits a child from giving, say, $50 gifts to a charity or a religious
body or even NARAL or NOW -- and then prohibits only those gifts that are
the exercise of a particular kind of First Amendment right, I find it hard
to see how the law can be defended on the grounds that it's merely aimed at
protection of the minor's property.  (Cf. Simon & Schuster v. New York Crime
Victims Bd.; the state legislature there could surely have required
criminals to turn over *all* income, however derived, to the victims, but
when it singled out income derived from First Amendment-protected activity
-- writing a book about one's crimes -- the First Amendment came into play.)

        As to the foreign nationals analogy, I'm not sure that the ban on
foreign nationals' contributions is constitutional; certainly the Court
hasn't passed on it.  But even if the Court upholds it, I suspect that it
would uphold it on the grounds that there's a particularly strong interest
in minimizing foreign influence over American politics -- and obviously no
such interest wouldn't apply here.


        -----Original Message-----
From:   James Lindgren [SMTP:jlindgren at WORLDNET.ATT.NET]
Sent:   Wednesday, March 06, 2002 8:58 PM
Subject:        Re: First Amendment rights of children

        Scarberry, Mark wrote:

        > Perhaps the law presumes that minors do not control their own
property and
> that any political contribution from a minor is actually controlled by the

> parent (or by the guardian of the minor's property). I wonder then whether

> such a contribution would violate the parent's obligation to manage the
> minor's property for the minor's benefit rather than to use it to further
> the parent's ends.

        Mark was thinking along somewhat similar lines to me.

        Most states have restrictions on minors owning any substantial
outright--typically requiring that it be in a guardianship of the property,
conservatorship, custodial account, or joint tenancy.  Although it is not
impossible to get a court in equity to approve a gift in a fiduciary estate
an adult, you usually have to show a pattern of similar gifts predating the
fiduciary relationship.

        In short, children's abilities to make substantial gifts are so
constrained by
state law that it seems a trivial restriction to prohibit contributions from


        Also, foreign nationals are prohibited from giving (which was
ignored in some
1990s campaigns when foreign nationals were specifically targeted for
fundraising), so the nonvoting children argument has merit as well.

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