Pornography / prostitution and campaign contributions / gift bans

Volokh, Eugene VOLOKH at
Mon Oct 19 20:41:29 PDT 2009

             I think the Freeman problem is very interesting and difficult.  So is the broader problem (on which I'm writing an article) of when a constitutional right is violated by a restriction on some activity - itself an activity that might not be seen as within the scope of the right itself - because the activity is very useful to the exercise of the right.  The classic example is that the right to free speech may be violated by a restriction on association; but there are many other such examples, many of which aren't recognized as such.

             In any case, let me pose three examples that I think help show the difficulty, and the scope of the overall problem:

             1.  A generally applicable law bans the payment of money for sex.  The law is applied to the making of a porn movie.

             2.  A generally applicable law bans gifts of $100 or more to a Congressman (I think this is indeed the current rule) or to any organization controlled by the Congressman (this, I think, would require an extension to the current law).  The law is applied to a campaign contribution of $100 to the Congressman's reelection committee.  This is certainly not the current rule, but imagine that Congressmen who disapprove of Buckley and Randall v. Sorrell enacted such a law, piggybacking on the generally applicable gift ban.

             3.  A generally applicable law bans the payment of money for kidneys.  The law is applied to a scientist who is doing research - which he fully plans to publish - on kidney transplants, and who concludes that he needs to pay money for kidneys in order to get enough kidneys for his research.

             Should the First Amendment trump the generally applicable law in all these examples, on the theory that applying the law substantially interferes with the ability to speak?  Should it trump none of them, on the theory that generally applicable laws should be applicable even to activity that's a precursor to speech, and that's necessary to speak effectively?  Or is there a difference between some of these examples?

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