Cornell Law Review Volume 67 Article 2 Issue 2 January 1982 Toward a Better Understanding of the Prior Restraint Doctrine: A Reply to Professor Mayton Howard O. Hunter Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation Howard O. Hunter, Toward a Better Understanding of the Prior Restraint Doctrine: A Reply to Professor Mayton, 67 Cornell L. Rev. 283 (1982) Available at: http://scholarship.law.cornell.edu/clr/vol67/iss2/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. TOWARD A BETTER UNDERSTANDING OF THE PRIOR RESTRAINT DOCTRINE: A REPLY TO PROFESSOR MAYTON Howard 0. Huntert In his Article on first amendment process,' Professor Mayton chal- lenges a "sacred cow" of current first amendment theology and, in so doing, forces us to consider more carefully the implications of certain accepted approaches to the resolution of disputes about speech. Much of what he says about the process by which government restrains speech is true, especially that the prior restraint doctrine has often been inade- quately understood and inappropriately invoked. 2 Nevertheless, some of his premises are subject to question. Furthermore, his conclusion- that a prior restraint model provides a better mechanism for the protec- tion of speech than does a subsequent punishment modd 3-does not necessarily follow from his premises, nor does the conclusion reflect an adequate understanding of the prior restraint doctrine. What follows is an effort to highlight some of these problems, in the hope that the argu- ments presented will focus and perhaps add to Professor Mayton's discussion. I THE PROBLEM OF COSTS Professor Mayton argues that a state bent on restraining speech will prefer a system of post-speech punishment because it is less costly than a system favoring injunctive relief.4 There may sometimes be cost advan- tages to a system of subsequent punishment, but certainly this is not always the case. We can begin with two assumptions that lack empirical t A.B. 1968, J.D. 1971, Yale University. Associate Professor of Law, Emory University School of Law. [While this Article was in the stages of final preparation, Professor Blasi published an article in the Minnesota Law Review that touches upon many of these issues. Time constraints prevent an incorporation of Professor Blasi's ideas into this dialogue, but I can say that I find myselfin general agreement with his conclusions. Se Blasi, Towarda Theory of PriorRestraint The CentralLinkage, 66 MINN. L. REv. 11 (1981)-Author's Note]. I Mayton, Towarda Theor of FirstAmendment Process- Injunctions of Speech, Subsequent Pun- ishment, and the Costs of the Pi"orRestraint Doctrine, 67 CORNELLu L. REv. 245 (1982). 2 Id. at 247-49. 3 Id. at 279-81. 4 The cost of each enforcement process is measured both in terms of time, including administrative delays, and in dollars spent. Id. at 266-74. CORNELL LAW REVIEW [Vol. 67:283 support, but seem to make sense:5 (1) most people are risk-averse;6 and (2) a government will prefer a simple, cost-effective means to reach a certain end, all other things being equal. 7 Accordingly, we can posit that most people will ordinarily act as self-censors and not engage in speech that may lead to legal or social opprobrium. A government that wants to limit speech will prefer the enforcement process that most effec- tively induces a natural tendency toward self-censorship.8 This may or may not be a subsequent punishment system. Assume, for example, that an empirical study shows that the word "mud," when spoken aloud or printed in newspapers, magazines, and books of general circulation, causes antisocial behavior. Based on the study, a state legislature decides to prohibit the use of the word "mud" except in private communications and academic research. If the propo- sition is debated in the legislature and if the study in question is publicly discussed, the debate itself will have an educative effect that may begin the entire process of self-censorship. Although iconoclasts, free-will types, and others will shout "mud" in public places and write books filled with thousands of "muds," the average citizen will eschew the use of "mud" if told that its use leads to bad ends and may be punishable by the state.9 Passage of a law prohibiting its use will further encourage the self-censorship already begun. To make its prohibition effective, the legislature will have to choose an enforcement mechanism. The most effective means to censor printed works, movies, videotapes or videodiscs would be an administrative li- censing system. Although it may be highly effective, such a system would hardly be cost-efficient, because it would require the creation of a bureaucracy of indefinite duration. Furthermore, licensing schemes are generally disfavored because they are especially intrusive. As Professor Mayton correctly observes,10 the American doctrine of free speech was 5 These assumptions are developed at various points in Mayton's Article. See, e.g., Mayton, supra note 1, at 253-54, 256, 272. 6 This certainly seems to be true for businessmen. For an interesting discussion, see Breit & Elzinga, Antitrust Penalties andAttiludes TowardRisk: An Economic Analysis, 86 HARv. L. REv. 693 (1973). 7 All other things are rarely equal. There may be good social or political reasons for choosing a more expensive means, or the process of government may itself be so cumbersome that the most cost-effective method is overlooked. 8 1 assume that the state has a legitimate interest in limiting speech and that it has the power to do so. Although thepower is usually present, the legitimacy of the limitation is often subject to question. 9 This will only be true if some societal consensus exists as to both the legitimacy of state intervention and the dangers of the word "mud." As in most speech cases, the danger lies not in the utterances but in the reactions of others to those utterances--in the actions likely to occur rather than in the speech. Mayton correctly points out that the speech/action prob- lem is central to an understanding of what is actually meant by free speech. Mayton, sura note 1, at 253-59. 10 Id. at 247-49. 1982] PRIOR RESTRAINT DOCTRINE founded in large measure on opposition to the English system of licens- ing-the classic prior restraint. Such procedures were once used widely in this country to control pornography, but they have largely fallen into desuetude, albeit more often for reasons of constitutional infirmity than for purposes of governmental economy." In our example, then, the leg- islature more likely will choose to enforce its prohibition either by pro- viding criminal sanctions for use of the word "mud" or by granting jurisdiction to the appropriate court to enjoin its usage. Which of these two systems is less costly? Mayton argues that the former is cheaper. In many instances, however, the latter may prove equally effective and no 2 more costly.1 Every state has a system already in place to pursue either criminal prosecutions or equitable restraints. Neither process requires additional personnel. To make out a criminal case, however, the local prosecutor normally must secure the help of the police, make a grand jury present- ment, prepare for and prosecute a jury trial, prove his case beyond a reasonable doubt, and contend with the complexities of the criminal process from arrest through arraignment, indictment, and trial. The en- tire process usually takes several months. In contrast, to seek an injunc- tion the prosecutor need only file a complaint, perhaps post a bond, and prepare for a non-jury hearing in which he will bear only a civil burden of proof. If he seeks a temporary restraining order, the hearing will oc- cur within a matter of days or even hours. A hearing on a preliminary injunction is also held quite soon after the filing of a complaint. The trial on the merits may not take place any sooner than a criminal trial, but if the prosecutor is successful in obtaining a temporary restraining order or a preliminary injunction, the issue may well become moot. There are, to be sure, instances in which an equity action may not be practicable. If the speech in question has already occurred or will occur before the prosecutor can prepare a complaint, find a judge, and obtain hearing, he may well prefer a criminal process of subsequent punishment. A legislature could provide him with both, and even the current prior restraint doctrine recognizes that equity can intervene in 13 some extreme cases despite the availability of a criminal sanction. Most of the time, however, the prosecutor can proceed with equal or greater speed, with fewer people, fewer hearings, and a less burdensome 11 Se, e.g., Freedman v. Maryland, 380 U.S. 51 (1965); Kingsley Int'l Pictures Corp. v. Regents of the Univ. of N.Y., 360 U.S. 684 (1959); cf. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952) (motion picture licensing scheme held invalid for denying license on ground that film was "sacrilegious"). 12 Mayton does recognize that in limited circumstances an injunction may be more ef- fective. Mayton, supra note 1, at 272. 13 Both the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971), and the Progressive case, United States v. Progressive, Inc., 467 F.