ISSN 1062-7421
Vol. 11 No. 11 (November 2001) pp. 528-531.
MONEY TALKS: SPEECH, ECONOMIC POWER, AND THE VALUES OF DEMOCRACY by Martin H. Redish. New York: New York
University Press, 2001. 319 pp. Cloth $35.00. ISBN: 0-8147-7538-1.
Reviewed by John Dinan, Department of Political Science, Wake Forest University.
Martin Redish has been concerned for some time now that "civil libertarians' traditional disdain for economic
rights has misled them into summarily rejecting First Amendment protection for expression designed to promote commercial
and economic interests," (p. ix) and during the last decade he has authored or co-authored a number of law
review articles detailing various aspects of his concern. In MONEY TALKS, he has drawn together several of these
recent articles in an effort 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" (p. ix). The resulting product is a wide-ranging and systematic treatment of the issue, and even in
the event
that his critics are not persuaded to adopt his position on each and every issue, the book is guaranteed to provoke
a great deal of fruitful reflection about the underlying purposes of the First Amendment.
In Redish's view, First Amendment freedoms are threatened by a number of contemporary doctrines. Following a brief
introductory chapter, he proceeds in Chapter Two to consider and rebut the arguments of various commentators to
the effect that "commercial speech deserves either significantly reduced protection or even no First Amendment
protection at all" (p. 18). In Chapter Three, which is addressed to those commentators "who oppose constitutional
protection for corporate speech," he sets out to demonstrate that these scholars "have incorrectly ignored
the numerous ways in which such expression actually fulfills the values served by the
constitutional guarantee of free speech" (p. 64). In Chapter Four, Redish sets out to deconstruct "a
series of empirical or theoretical postulates that, taken together, provide the normative foundations for the argument
that campaign finance regulation is consistent with First Amendment dictates" (p. 116). In Chapter Five, he
turns to assess the arguments in favor of "recogniz[ing] some form of a governmentally enforced right of access
on the part of private individuals and entities to existing privately owned sources of expression and information,"
and he concludes that the creation of such a right would be "fraught with significant dangers" (p. 148).
In Chapter Six, the final substantive chapter, he considers the constitutionality of various forms of "government
subsidization of expression," and he seeks to advance
the debate by developing an "analytical structure" that can help to distinguish government subsidization
that "promotes the values underlying the free expression guarantee" from subsidization that "undermines
those values" (p. 197).
Of the various arguments that Redish considers and critiques in the course of these
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chapters-and the arguments and counterarguments are too numerous and complex to be treated in a comprehensive fashion
in this review-two are of particular importance. First, Redish gives a good deal of attention to the argument that
commercial speech and corporate expression ought to be given reduced constitutional protection because they fail
to advance the core values underlying the First Amendment. Along these lines, Redish notes that commentators occasionally
distinguish commercial and corporate speech from other forms of speech on the ground that the former are "designed
for narrow purposes of personal economic gain" (p. 7). At other times, commentators argue that speech of this
kind "fails to foster the values of personal liberty and self-expression that exclusively underlie the free
speech right" (p. 76). In the view of these commentators, many of whom Redish associates with the civic republican
tradition, "the facilitation of democratic society,
rather than the narrow and selfish concerns of the individual, provides the moral core of free speech protection"
(p. 135).
Redish's response to this argument takes several forms. First, he takes issue with several of the proffered grounds
for distinguishing commercial and corporate expression from other forms of expression. As he notes: "In no
other area of First Amendment construction does a speaker's lack of objectivity or the presence of a speaker's
personal or financial interest in gaining acceptance of the viewpoint expressed in her expression in any way reduce
the constitutional protection afforded to that expression" (pp. 35-36). Even more importantly, he argues that
extending full constitutional protection to commercial and corporate speech should be seen
as entirely consistent with the values underlying the First Amendment, at least insofar as these values are properly
understood. As he explains: "The form of democratic theory on which my free speech arguments rely emphasizes
the value of the personal and intellectual development that result when people participate in making life-affecting
decisions, either collectively or individually" (p. 8). In his view, self-interested speech can help individuals
to better achieve their life goals by serving "as an essential facilitator in the process of personal self-realization"
(p. 40). In addition: "The fact that such expression may be designed primarily to
facilitate personal gain does not necessarily detract from or undermine such development" (p. 8). Finally,
individuals benefit from hearing self-interested speech, especially in light of the fact that "a free flow
of information and opinion is essential for an individual to make life-affecting choice" and that "individuals
develop their personal and intellectual faculties by receiving and processing information" (p. 80). For these
and other reasons, Redish concludes that commercial and corporate speech ought to be accorded as much constitutional
protection as other forms of expression.
Redish also considers and critiques a second argument, which is advanced by scholars who are concerned with achieving
economic and political equality, or at least with reducing existing inequalities. Equality is, without a doubt,
the guiding concern of many commentators who advocate a lower level of constitutional protection for commercial
and corporate speech, or who defend restrictions on campaign contributions and expenditures, or who support a right
of expressive access, or who would permit the government to selectively subsidize certain forms of speech. Thus
restrictions on corporate speech are frequently supported out of a desire to prevent such speech from "drown[ing]
out competing views due to its sheer volume;"
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(p. 114) campaign finance limits are thought to be necessary "to assure political equality among economically
disparate groups and individuals;" (p. 137) and supporters of a right of expressive access are motivated in
part by a belief that "disparities in expressive power invariably derive from disparities in economic power"
(p. 162).
In the face of this argument, Redish is prepared to acknowledge the possibility "that the unrestrained use
of money for expressive purposes leads to invidious inequalities in the ability of citizens to communicate information
or to express themselves" (p. 12). At the same time, he is unwilling to view these inequalities as providing
sufficient justification for "limiting the use of economic power for purposes of expression" or "controlling
the expression of the economically powerful" (p. 1). Not only would these sorts of restrictions lead to a
reduction in the overall amount of speech, which would, in turn, lead to a less-informed public, but also,
even more importantly, they would violate a conception of equality that is even more fundamental to the First Amendment.
As he argues, "Correctly understood, the equality element in free speech thought dictates that the government
must remain neutral among competing ideas in restricting the expression of private individuals and entities; all
ideas must be treated equally" (p. 113). In Redish's view, this core commitment to an equality of ideas, which
is grounded in the principle of "epistemological humility," is violated in several ways by efforts to
regulate speech for the purpose of ameliorating economic inequalities. Restrictions on the speech of the economically
powerful would have the practical effect of privileging certain speakers, such as consumer advocates, over other
speakers, such as corporate
entities, and therefore "give rise to a stark gradation in the level of constitutional protection for expression
solely on the basis of which side of a controversy the expression takes" (p. 10). In addition, such restrictions
appear to be motivated, in his view, "by a normative choice in favor of the substantive value of economic
redistribution" (p. 10). Thus, their adoption would violate the core First Amendment principle of government
neutrality in regard to competing ideas.
As Redish acknowledges, his principal dispute in a number of these instances is not so much with the current Supreme
Court, which has come closer in recent years to adopting his positions on several of these issues, but rather with
various academic commentators. In highlighting the theoretical disagreements underlying the differences between
his conclusions and those of his academic critics, Redish has performed a valuable service. He is convincing when
he contends that where one stands on each of these particular free-speech controversies will likely depend on what
one conceives to be the underlying purpose of the First Amendment. To the extent that scholars are disposed to
accept Redish's view that the fundamental values underlying the First Amendment are the promotion of individual
self-
realization and the requirement of governmental neutrality among competing ideas, they will likely accept his conclusions
in regard to particular policy issues. To the extent, on the other hand, that scholars are inclined to adopt alternative
understandings of the underlying purpose of the First Amendment or to emphasize different conceptions of equality,
they will be less likely to agree with his particular conclusions.
At a certain point, though, one is led to confront an even more fundamental question of why one ought to prefer
Redish's conceptions of these underlying
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values to those of his critics. Redish will likely be pressed by his critics to provide additional arguments in
favor of his view that a self- realization rationale for the First Amendment ought necessarily take precedence
over alternative rationales, as well as for his view that a commitment to an equality of ideas ought to be preferred
to other means of defining equality. And these critics may not always be persuaded, at the end of the day, that
Redish has succeeded in demonstrating that their alternative conceptions must yield to his preferred conceptions.
In particular, commentators whose positions on free-speech issues are grounded in a concern
for securing economic equality may not be wholly persuaded by Redish's argument that their concern for economic
equality ought to yield to his concern for an equality of ideas. At the least, these commentators are likely to
respond by bringing forth additional arguments to demonstrate the centrality of their value and by pushing Redish
to do more to refute their arguments.
In the end, though, regardless of whether or not First Amendment scholars end up agreeing with each of Redish's
various conclusions, they are bound to profit from an encounter with the wide-ranging and stimulating arguments
that he has assembled in this collection. It is a provocative book in the truest sense of the term, in that it
challenges widely-shared assumptions and prompts scholars to either reassess their conclusions or respond with
even more effective counterarguments.
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Copyright 2001 by the author, John Dinan.