Prior Restraint; R. Foley, Jr.

I. THE SHORT MEANING OF PRIOR RESTRAINT Prior restraint defines a govern mental edict that proscribes as evil or unlawful certain actions poten tially performable in the future. The force of law (rules and orders ema nating from the state threatening punishment for disobedience) inhib its 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 doc trine gained recognition and cur rency in the early twentieth century in such First Amendment arenas as free speech and a free press. 2 View ing the First Amendment as pos609 610 THE FREEMAN October sessing a "transcendent value,"3 psuedo-civillibertarians ofthe 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 consti tutes 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 monu mental avalanche of proscriptions which flow from EPA, OSHA, the Federal Reserve System, the FCC, CAB, ICC, and the like, not to men tion their state and local counter parts. 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 direc tives which apply after the fact in the resolution of human disputes, for such constraints do not restrict human freedom in the same man ner. 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 occa sioned 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 hy pothetical permits maximum hu man liberty but requires responsi bili ty 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 re straint lie deeply embedded in an tiquity, far from the likely gaze of today's scholars. Such a fact should not deter us from the exercise of searching out the probable under pinnings 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 devel opment of the doctrine of prior re1981 PRIOR RESTRAINT 611 straint. Each force represents a known and pervasive component of human nature; together, they rep resent the characteristic duality which besets mankind. First, the human creature con tains 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 "lit tle lower than the angels" in this as pect: he is kind, sympathetic, care ful and, most of all, he wants to prevent catastrophes from assailing those around him.

Thus, fortified with his own sub jective view of what is prudent and good, man seeks to prevent or fore stall harm to himself or to others. If a crib can choke a child of a careless mother, let us do away with that de sign; if green trees and bushes beau tify a town, let us command all in habitants 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 ac tions: 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 percep tion of human nature: incapable of perfection, but quite capable of im provement. 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 dis jointed episodes portraying man's inhumanity to man.

Temptations of Power This sinister part of humankind further explains and refines the rea son 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 en joyment of coercive power. He sup612 THE FREEMAN October poses 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 doc trine may be only glimpsed through the fog of time, so also the conse quences of prior restraint must re main the product of informed spec ulation. However, the reasons for the impediments to this view are quite different. History does not record when the doctrine of prior re straint 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 care ful recording. On the other hand, we cannot know precisely the results of prior restraint by virtue of the very doctrine itself: prior restraint pre vents action and thereby inhibits, proscribes or alters consequences. We cannot tell what choices would fol low 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 cer tain permitted channels and all de viation receives strict punishment.

No one knows how mankind would divide up the airwaves in the ab sence of the FCC. Noone knows how the city of Portland would develop in the absence of land use and zon ing controls, patents, franchises and subsidies. Noone knows how many serious communicable diseases would be conquered in the absence of the FDA. No one knows what the mar ket will bring forth from 225,000,000 prodigious minds and hands if they are left unrestrained! Prior restraint acts as a great cos mic 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 res urrected 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 re sult is lost and the idea emascu lated. Remember that no act or idea stands alone: all are linked inexo1981 PRIOR RESTRAINT 613 rably from cause to effect to cause, by the law of consequences. Prior re straint breaks the chain and alters effects forever.

In away, prior restraint leads to a partially self-fulfilling prophecy. By damning human creativity, the state foreordains the future by de creeing 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 com mand state most certainly will produce an abundance of evils be yond the ken of small-minded men. IV. WHEN CAN PRIOR RESTRAINTBE JUSTIFIED? Few would condemn all forms of prior restraint. Certainly, funda mental justice requires notice of penalties to be exacted upon the conclusion of a given course of con duct. Just as certainly, a free society needs to operate upon basic prem ises 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 at tempted to do so elsewhere on sev eral 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 or derly solution of otherwise insoluble disputes. Such a minimal govern ment 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 mini mum. In areas where regulation to prevent force and deceit become nec essary, prior restraint is justified in order that notice be granted to per sons who might act malevolently to ward others. In the areas where a state system of judicial resolution of interpersonal disputes is necessary, 614 THE FREEMAN the doctrine of prior restraint should playa discrete role: the state should provide such a system and require compliance with its forms and or ders 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 conse quences. In the case of the doctrine of prior restraint, the cause of the concept lies partly in the undesir able 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. ® Economic Harmonies -FOOTNOTESlWeaver, Richard M., Ideas Have Conse quences, (University of Chicago Press, Chicago and London, 1948). 2See, 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. Wil son, 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).

3Speiser 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). 4Roche, George Charles III, Frederic Bastiat: A Man Alone (Arlington House, New Rochelle, New York 1971) 194-197; See also: Russell, Dean, FredericBastiat: Ideas and Influence (The Foundation for Economic Education, Inc., Ir vington-on-Hudson, New York 1969) 13-14,29, 35-36. 5Foley, 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 Perime ter Imperative" (unpublished manuscript). IDEAS ON LIBERTY , A man's happiness and well-being are not measured by his efforts but by his satisfactions, and this also holds true for society at large .... It may happen, and frequently does, that the service we esteem highly is in reality harmful to us; values depend on the judgments we form of them .... In an exchange society, man seeks to realize value irrespec tive of utility. The commodity he produces is seldom intended to satisfy his own wants, and thus he has little interest in its intrinsic usefulness.

It is for the purchaser to judge that. What concerns the producer is that it should have maximum value in the market .... It is in vain that we attempt to separate choice and responsibility. FREDERIC BASTIAT DANGER HIGH VOLTAGE: ON MY WALK to and from elementary school when I was a boy I used to pass a fenced enclosure. A metal sign bearing this legend was attached to the fence: "Danger-High Voltage." Inside the fence were several large transformers to which wires from a high tension power line were at tached. There was a factory across the road which got its power for run ning large machines from the trans formers. Although boys often do daring and foolish things I never heard of anyone who breached this fence to examine the transformers. The warning sign might have served only as an invitation, but it was mightily reinforced by our knowl edge of the dangers of electricity. The recollection of these things Dr. Carson is a specialist in American social and intel lectual history. He is President of the Center for Indi vidual and Family Enterprise. For further information, write him at Route 1, Box 13, Wadley, Alabama 36276.