Money Talks: Speech, Economic Power, and the Values of Democracy

334 Pages·2001·1.267 MB·English

by  Martin H. Redish

Money Talks

Money Talks
Speech, Economic Power, and the
Values of Democracy
Martin H. Redish
a
NEW YORK UNIVERSITY PRESS
New York and London
NEW YORK UNIVERSITY PRESS
New York and London
© 2001 by New York University
All rights reserved.
Library ofCongress Cataloging-in-Publication Data
Redish,Martin H.
Money talks :speech,economic power,and the values ofdemocracy /
Martin H.Redish.
p. cm.
Includes bibliographical references and index.
ISBN 0-8147-7538-1 (cloth :alk.paper)
1.Campaign funds—United States. 2.Freedom ofspeech—United
States. I.Title.
JK1991 .R423 2001
323.44'3'0973—dc21 2001001102
New York University Press books are printed on acid-free paper,
and their binding materials are chosen for strength and durability.
Manufactured in the United States ofAmerica
10 9 8 7 6 5 4 3 2 1
ToJessica and Elisa,who have put their powers offree
expression to wondrous use

Contents
Preface ix
1 Introduction:The Intersection between Free Speech
and Economic Power 1
2 Commercial Speech and Democratic Values 14
3 Corporate Speech and the Theory ofFree Expression 63
4 Free Speech and the Flawed Postulates ofCampaign
Finance Regulation 115
5 The Right ofExpressive Access,Redistributive Values,
and the Democratic Dilemma 147
6 Government Subsidies and Free Expression 196
7 Conclusion:Free Expression and the Sound ofMoney 232
Notes 237
Index 315
About the Author 319
vii

Preface
In many ways,this book is the culmination of thirty years of
First Amendment scholarship. During my third year of law school and
my Second Circuit clerkship the following year, I authored my first two
scholarly articles: The First Amendment in the Marketplace: Commercial
Speech and the Values of Free Expression,39 George Washington Law Re-
view 429 (1971),and Campaign Spending Laws and the First Amendment,
46 N.Y.U. Law Review 900 (1971). In those articles, I provided a some-
what primitive foundation for much of the analysis that appears in this
book. I argued in both articles that civil libertarians’traditional disdain
for economic rights had misled them into summarily rejecting First
Amendment protection for expression designed to promote commercial
and economic interests. I argued that once one got past constitutional
liberals’ almost reflexive bias against powerful economic interests, one
would recognize that speech promoting commercial sale and campaign
contributions or expenditures substantially furthered long-recognized
free speech values.
At the time,few scholars or jurists even acknowledged the possibility
that substantial First Amendment interests were implicated by the regula-
tion of economic power for expressive purposes. Since then, however,
many courts and commentators have come to acknowledge this fact,
though theoretical controversy and doctrinal confusion continue to pre-
vail. In this book, I seek to develop a coherent theoretical rationale to
support the view that restrictions on the expression of the economically
powerful or the use of money for expression threaten fundamental First
Amendment values.
A number of the chapters derive from articles that I have authored or
coauthored since 1990. These include: Martin H. Redish, Product Health
Claims and the First Amendment: Scientific Expression and the Twilight Zone
of Commercial Speech, 43 Vanderbilt Law Review 1433 (1990); Martin H.
Redish and Gary Lippman,Freedom ofExpression and the Civic Republican
ix