Pornography / prostitution and campaign contributions / gift bans
mtushnet at law.harvard.edu
Mon Oct 19 21:05:36 PDT 2009
Sorry for the truncated reply. To begin again: These are indeed interesting problems. As I've indicated, I personally don't have any problems leaving all three of them to legislative discretion. Historically, I think, what made the right of association cases difficult for some -- the First Amendment absolutists -- was that Justice Harlan's formulation applied a balancing test to determine when the burden on the right of association was so substantial that the interests the state was pursuing didn't justify the intrusion of core First Amendment interests occasioned by the inquiry into association. And a balancing test was probably necessary (though I haven't thought enough about the issues associated with the right of association to be confident in that assertion). But, if one is OK with balancing, and perhaps willing to come up with a list of "considerations to be taken into account" but none of which are dispositive (candidates might be the regulated actor's intent, the risk that the regulation is of a type that might too often be imposed as a subterfuge for direct regulation of expression, and a bunch of others), I don't see any *inherent* difficulty in the cases.
William Nelson Cromwell Professor of Law
Harvard Law School
Cambridge, MA 02138
ph: 617-496-4451 (office); 202-374-9571 (mobile)
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 10/19/2009 11:41 PM
To: conlawprof at lists.ucla.edu
Subject: Pornography / prostitution and campaign contributions / gift bans
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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