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Prior Restraint

Ridgway K. Foley Jr.

Mr. Foley, a partner in Schwebe, Williamson, Wyatt, Moore & Roberts, practices law in Portland Oregon.

“Ideas have consequences” observed that eminent historian, Richard Weaver,[1] and so they do. But ideas do not only produce, occasion or effect consequences; they are also results of earlier ideas, principles and concepts which, in turn, proceed, true or false, from the gray matter of the human mind. When one happens upon a particularly perturbing doctrine, particularly one which has become accepted to the extent of becoming axiomatic, it becomes fruitful to unveil the causal linkage and probe the aura surrounding the verbal deity. I propose to do just that with the concept of “prior restraint,” a praxeological doctrine now writ large in the juristic process. In short, let us identify the subject and discern from whence it came and whither it leads.

I. The Short Meaning of Prior Restraint

Prior restraint defines a governmental edict that proscribes as evil or unlawful certain actions potentially performable in the future. The force of law (rules and orders emanating from the state threatening punishment for disobedience) inhibits or restricts future conduct and channels embryonic human conduct into, or away from, given courses of action.

While the idea is probably as old as human civilization, the legal doctrine gained recognition and currency in the early twentieth century in such First Amendment arenas as free speech and a free press.[2] Viewing the First Amendment as possessing a “transcendent value,”[3] psuedo-civil libertarians of the court system railed against prior restraint in such fields as the public display of obscene motion pictures or the printing of seditious editorials. Mandatory restrictions before the fact, so the argument ran, unduly circumscribed the free flow of ideas and personal interchange and, for that reason, ought not be tolerated in a free society.

In essence, prior restraint constitutes a label which may be applied fairly to all state restrictions which fetter human action before the fact. It includes in its net all manner of rules, regulations, orders, and guidelines which order personal destiny—for example, the monumental avalanche of proscriptions which flow from EPA, OSHA, the Federal Reserve System, the FCC, CAB, ICC, and the like, not to mention their state and local counterparts. If the law states that any or all persons shall or shall not follow a given choice or range of conduct in the future, the state has engaged in prior restraint.

One salient distinction deserves mention. Prior restraint does not generally encompass legal directives which apply after the fact in the resolution of human disputes, for such constraints do not restrict human freedom in the same manner. A chasm of difference separates a rule which states that no property owner shall construct a dwelling more than two stories high on his real property, and an order which compels A to pay B damages occasioned when A negligently drove his automobile over B’s homestead and uprooted his flower beds. As we shall note, the first example limits human conduct without a determination of whether it will or may occasion fair, wise or just results; the second hypothetical permits maximum human liberty but requires responsibility on the part of free human actors whose untrammeled conduct proves detrimental to another, equally free, human being.

II. The Derivation of Prior Restraint

No doubt the roots of prior restraint lie deeply embedded in antiquity, far from the likely gaze of today’s scholars. Such a fact should not deter us from the exercise of searching out the probable underpinnings of the theory in an attempt to glean some knowledge as to its present appeal.

Two likely candidates appear as the causative factors in the development of the doctrine of prior restraint. Each force represents a known and pervasive component of human nature; together, they represent the characteristic duality which besets mankind.

First, the human creature contains a strong strain of empathy for his fellow beings and a desire to do good things. Few of us are so callous that we begrudge a crust of bread to a sad-eyed waif. Man truly is a “little lower than the angels” in this aspect: he is kind, sympathetic, careful and, most of all, he wants to prevent catastrophes from assailing those around him.

Thus, fortified with his own subjective view of what is prudent and good, man seeks to prevent or forestall harm to himself or to others. If a crib can choke a child of a careless mother, let us do away with that design; if green trees and bushes beautify a town, let us command all inhabitants to decorate their plots with foliage; if televised violence affects weak minds, let us eliminate as saults and substitute symphonies. Prior restraint offers a method of preventing occurrences which are viewed as bad or undesirable with the highest of motives: protection of human life and safety, particularly fortification of those perceived as less well able to care for themselves.

Second, man betrays a deficient and less desirable side to his nature, an aspect which flaws all of his actions: a tendency to evil, a curious concatenation of greed, power, lust, envy and all manner of unlovely traits. Perhaps Bastiat’s greatest gift, among many, was his clear perception of human nature: incapable of perfection, but quite capable of improvement.[4] It is this lesson which the prophets and priests among us have enunciated for so long. In a simple phrase, man does bad things; he is the disorderly creature who rebels against the natural order of his most orderly universe. When he acts in harmony with reality, the human being approaches perfection; when he digresses, he becomes a base and evil fellow. Recorded history, by and large, consists of a series of disjointed episodes portraying man’s inhumanity to man.

Temptations of Power

This sinister part of humankind further explains and refines the reason for the existence of the doctrine of prior restraint. By and large, men enjoy exercising power and control over other persons. People like to run the lives of other, subject people. Flawed man, who possesses serious difficulty in running his own wee life in this amazingly complex world, myopically sees himself capable of managing the lives and choices and destinies of untold multitudes of his neighbors. The dictator operates from a tripartite base: fear; distrust of man’s ability to do well; and, the enjoyment of coercive power. He supposes himself able to manage lives better than the citizens and, in so presuming, he ignores the good in others and magnifies the evil in his own heart. Oddly enough, it seems empirically and naturally true that mandate states and slave societies bring out the venal in the whole population; in contrast, the greater the relative freedom, the more high-spirited the choices actually made.

III. The Consequences of the Idea of Prior Restraint

Just as the derivation of the doctrine may be only glimpsed through the fog of time, so also the consequences of prior restraint must remain the product of informed speculation. However, the reasons for the impediments to this view are quite different. History does not record when the doctrine of prior restraint first came into being nor the reasons therefor, probably because any “history” at that time consisted of an informal oral tradition and ideas do not lend themselves to careful recording. On the other hand, we cannot know precisely the results of prior restraint by virtue of the very doctrine itself: prior restraint prevents action and thereby inhibits, proscribes or alters consequences. We cannot tell what choices would follow ideas if the seminal choice is thwarted.

Herein lies the seed of the great evil of prior restraint: free flow of human action is restricted into certain permitted channels and all deviation receives strict punishment. No one knows how mankind would divide up the airwaves in the absence of the FCC. No one knows how the city of Portland would develop in the absence of land use and zoning controls, patents, franchises and subsidies. No one knows how many serious communicable diseases would be conquered in the absence of the FDA. No one knows what the market will bring forth from 225,000,000 prodigious minds and hands if they are left unrestrained!

Prior restraint acts as a great cosmic ideological prophylactic, cutting off life from ideas, forms and actions which may be beneficial but which will never see the light of day. Once destroyed, ideas seldom can be resurrected as they are fleeting and fragile things. In place of vibrant new ideas we retain stale old forms which may have lost meaning and most certainly vitality. Thus, the result is lost and the idea emasculated. Remember that no act or idea stands alone: all are linked inexorably from cause to effect to cause, by the law of consequences. Prior restraint breaks the chain and alters effects forever.

In a way, prior restraint leads to a partially self-fulfilling prophecy. By damning human creativity, the state foreordains the future by decreeing a string of”thou shall nots.” Yet, for all the gloating attempts of the tyrants to foresee and constrain results, the future seems to ever surprise them: slaves make dull but still unpredictable subjects. The perceived harm may never occur if creative man is left alone to work out solutions to his life. The command state most certainly will produce an abundance of evils beyond the ken of small-minded men.

IV. When Can Prior Restraint Be Justified?

Few would condemn all forms of prior restraint. Certainly, fundamental justice requires notice of penalties to be exacted upon the conclusion of a given course of conduct. Just as certainly, a free society needs to operate upon basic premises which will insure all participants free rein to their liberty of choice, for if I can impose my will upon you by force or deception, you have lost control over your destiny just as surely as if the government passed a law fixing your course of conduct.

This essay does not present the apt place to define the fundamental and irreducible minimum nature of governmental authority. I have attempted to do so elsewhere on several occasions.[5] Suffice it to say, I consider the appropriate role of the state as twofold: the prevention of force and fraud from within and without the perimeters, and the orderly solution of otherwise insoluble disputes. Such a minimal government comports with the basic tenets of freedom and with the duality of human nature discussed in Section II. It permits the maximum release of creative energy untrammeled by unnecessary and fixed barriers, while providing those sanctions necessi tated by man’s irrational sinister side.

Within the framework of a thus-limited state, regulations of human conduct should be kept to a minimum. In areas where regulation to prevent force and deceit become necessary, prior restraint is justified in order that notice be granted to persons who might act malevolently toward others. In the areas where a state system of judicial resolution of interpersonal disputes is necessary, the doctrine of prior restraint should play a discrete role: the state should provide such a system and require compliance with its forms and orders if one party to the dispute chooses to involve the system; it should leave wide open the doors of private arbitration, conciliation and conflict resolution if the parties so choose.

We come full cycle to Mr. Weaver’s wisdom: ideas do have consequences. In the case of the doctrine of prior restraint, the cause of the concept lies partly in the undesirable grounds of the desire for power, and partly in the fallacious grounds of the belief that mere man can mandate good results by coercion. The inexorable consequences of prior restraint, where employed outside the bounds of the doctrine of limited government, are simply an unwise and needless loss of liberty. []

1.   Weaver, Richard M., Ideas Have Consequences, (University of Chicago Press, Chicago and London, 1948).

2.   See, e.g., Carroll v. President and Com’rs of Princess Anne, 393 U.S. 175, 89 S. Ct. 347, 21 L.ed.2d 325 (1968); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S. Ct. 777, 96 L.ed 1098 (1952); Chaplinsky v. State of New Hampshire, 315 U.S. 568, 62 S. Ct. 766, 86 L.ed 1031 (1942).

3.   Speiser v. Randall, 357 U.S. 513, 526, 78 S. Ct. 1332, 2 L.ed.2d 1460 (1958); Adderly v. State of Florida, 385 U.S. 39, 48-49, 87 S. Ct. 242, 248, 17 L.ed.2d 149 (1966).

4.   Roche, George Charles III, Frederic Bastiat: A Man Alone (Arlington House, New Rochelle, New York 1971) 194-197; See also: Russell, Dean, Frederic Bastiat: Ideas and Influence (The Foundation for Economic Education, Inc., Ir-vington-on-Hudson, New York 1969) 13-14, 29, 35-36.

5.   Foley, Ridgway K., Jr., “Individual Liberty and the Rule of Law.” 21 Freeman 357-378 (June, 1971) and 7 Willamette Law Journal 396-418 (December 1971) and Foley, Ridgway K., Jr., “In Search of Sovereignty: The Perimeter Imperative” (unpublished manuscript).

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