Prior restraint, incommensurability, and the constitutionalism of means

In American law, the doctrine of prior restraint regulates the means that the government can use to restrict speech. This doctrine forbids the implementation of any pre-publication regulations that prevent the publication of speech, such as administrative licensing schemes and judicial injunctions against certain types of speech. One analysis of the doctrine of prior restraint views it as an attempt to ensure that speech rights are protected using liability rules instead of property rules. While it is permissible to punish certain harmful expressions, such as libels, after their commission, there are strict limitations on the constitutionality of preventing them before they occur. Because of this general constitutional prohibition against prior restraints, restrictions of speech ordinarily must be enforced by the imposition of ex post criminal or civil sanctions. Justifications of the rule against prior restraints tend to focus either on the possible damage that prior restraints could do to politically controversial speech or on the chilling effect they might have on challenges to the constitutionality of a given speech restriction. The Article argues that both the doctrine itself and its customary justifications lack clarity and consistency. The problem of incommensurability provides a strong argument against limiting speech regulation to enforcement of liability rules in both civil and criminal adjudication. Incommensurability, in this context, refers to the impossibility of providing a reasonable substitutive or comparative value for an item. The Article challenges the possibility, the propriety, and the morality of enforcing incommensurable anti-speech entitlements such as the individual rights to good reputation and privacy, and the right of the state to national security, with ex post criminal sanctions or civil penalties. The negative externalities that the prior restraint regime generates pose a collateral difficulty. In essence, the system allows the public to enjoy benefits at the expense of particular individuals. Because the harms suffered by individuals from unrestrainable speech are incommensurable, a liability rule system cannot provide full compensation for them. Speakers are therefore not made to bear the full costs of their speech, creating a classic negative externality problem. In addition to the freedom to speak, the Article also focuses on anti-speech entitlements. An appropriate constitutionalism of means must reflect, and attempt to achieve, a society's substantive constitutional balances. Substantive constitutional arrangements do not entrench freedom of speech alone - freedom of speech is not, after all, absolute. These arrangements also aim to protect certain anti-speech entitlements. In systems that provide for an expansive substantive freedom of speech, anti-speech entitlements take on an even greater weight because they come into play only in those extreme situations where there is no choice but to limit the protection afforded to speech. An effective constitutionalism of means must attempt to secure these valuable anti-speech entitlements in addition to substantive free speech rights. One of the undesirable ramifications of the doctrine of prior restraint is that it often ironically leads to the constriction of substantive free speech rights. If a legal system becomes overly reliant on the doctrine of prior restraint, it may focus unduly on procedural protections at the expense of constitutionally protected substantive speech rights. Moreover, a reliance on the prohibition against prior restraints assumes incorrectly that subsequently-imposed penalties will always be less burdensome on speech than prior restraints. The Article develops a criticism of the doctrine of prior restraint using the relationship between means-centered and substantive constitutional theories. By applying liability rules to incommensurable entitlements, the doctrine produces suboptimal levels of protection for both speech and anti-speech entitlements and creates a number of intractable moral dilemmas. This analysis explores the meaning of incommensurability and presents a number of potential definitions – some of which are radical and some more moderate. Even under a moderate view of the incommensurability of anti-speech entitlements, the doctrine of prior restraint produces problematic results. Further, the problems with the current regime are grounded in remediable institutional and structural aspects of the law. The need to implement the substantive constitutional arrangements (the constitutionalism of substances) creates a constitutional duty to change these doctrines and structures (the constitutionalism of means). The Constitution must dictate the form of legal doctrines and institutional structures, and not vice versa.