Definition and the American exception
Bob Zadek defines prior restraint as the government saying ab initio, “You cannot say it,” and treats that as the difference between America and the rest of the free world. In his framing, America does have limitations on speech, but they are narrow: the Supreme Court about 40 years ago struggled to define obscenity, and slander and lying carry civil penalties. What is absent is the government’s power to forbid the statement in advance. Jonathan Rauch on the New Attacks on Free Thought (2015)
The same distinction is drawn through the founding. Zadek says the founders knew they could not have prior censorship, could not have prior restraint, and that press in the First Amendment meant the printing press rather than the media alone. At the time of the founding, he says, almost every broadsheet was biased and in the election of 1800 every newspaper had a profound bias and was paid by government to have it. The founders, on this account, preserved everybody’s right to speak out even knowing some published material would be harmful to the citizenry. Who Will Censure the Censors? (2019)
Prior restraint as a lens on gun control
The most developed extension of the concept comes in the conversation with David Harsanyi. Zadek asks listeners to imagine that freedom of speech came with prior restraint: that whenever you spoke in public you needed a license in advance to prevent you from saying something illegal. That, he says, is gun control in a nutshell — you need a license in advance to prevent you from misusing your speech or misusing your gun — and he calls it abhorrent to the norms on which the country was founded. Harsanyi agrees: “Absolutely. That’s what it is.” [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
Harsanyi anticipates the counterargument that guns are dangerous and can kill someone whereas slander cannot, and answers that there is a process and a way to get rid of the Second Amendment if gun controllers really wanted to. He calls the gun control argument brand new, noting that in the 1930s automatic weapons were banned because they were not in common use, and that a normal person did not have a Maxim gun in their front lawn. He concedes that most people agree certain real-life military weapons should probably not be handled by people, comparing them to a tank you cannot drive down the road but a Hummer you can, and says the framework for dealing with guns has already been laid out. Everything past that, he says, gun owners see as incremental steps to inhibit them from owning guns in general. [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
Earlier in the same episode, Zadek frames the underlying principle: merely having the right to own a gun does not mean you are determined to use it, and many people who own guns for self-defense hope they never have to. He argues that the right to gun ownership does not mean the right to harm somebody, because an extensive civil and criminal legal system punishes improper harm, just as you may own a car but are punished if you improperly harm somebody with it. He calls this one of the few bodies of policy where the attempt is to cut off the crime by denying a freedom rather than punishing the crime after it occurs, likening it to a law that arrests you before the crime happens. Harsanyi supplies the comparison to Minority Report. [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
Harsanyi then lists measures he treats as due-process problems: a Democratic sit-in for more gun control seeking to prohibit people who had ever been on a secret government terror watch list, which he says would cover a million Americans with no due process from owning a firearm ever in their lives; a bill Dianne Feinstein pushed that would have banned people who traveled to certain countries like Syria from ever owning a gun, or perhaps for five years, he does not recall; and new laws in California that allow your neighbor, if you scare them in some way, to call the police and have your gun taken away, after which you get due process. He calls these attacks on the Second Amendment but also on the Fourth and the Fifth. [[episodes/entrepreneurs__outlaws__and_the_right_to_bear_arms|Entrepreneurs, Outlaws, and the Right to Bear Arms – David Harsanyi on First Freedom (2018)]]
Campus speech codes and the hostile environment doctrine
Jonathan Rauch identifies two notable exceptions to the tendency against speech restrictions: campaign finance law, where restrictions on political expression are being struck down by the Supreme Court, and speech codes on college campuses. Zadek raises Brandeis University as a private institution free to do what it wants, and says college campuses go out of their way to prevent students with tender sensitivities from being exposed to points of view they may find offensive. Rauch declines to treat the problem as entirely private: speech codes also appear at public universities that are government-funded and subject to the First Amendment, and while courts in some cases strike the codes down as unconstitutional, that does not stop the universities from having them. Jonathan Rauch on the New Attacks on Free Thought (2015)
Rauch then names a source of government pressure on universities and employers: the hostile environment doctrine, which says that if a college or employer creates an environment seen as pervasively hostile either to workers or to students, they cannot do that. Those rules, he says, come with federal money and sometimes federal civil penalties attached, pressuring institutions to adopt codes creating a friendly environment — which means people are not saying stuff that is offensive — so colleges wind up in a balancing act where sometimes the First Amendment gets lost in the mix. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek observes that employers are not regulated by the First Amendment because they are not government, and that what goes on in the employment area is looked at through the prism of workplace equality under a different standard. Rauch responds that a lot of government pressure is being brought to bear on private employers to police the speech of their workers, so that in effect the government requires employers to do in the workplace what the government could not itself do. He reports a body of legal thinking holding that the courts need to get active on this, because they cannot let the government force employers to do what the government cannot do, and calls telling employers they must act against a sexist employee who says something that might offend a woman in the workplace very problematic from a free speech point of view. Jonathan Rauch on the New Attacks on Free Thought (2015)
Zadek generalizes the mechanism: government has become skillful at appointing deputies, albeit vigilantes, to do its work, deputizing large segments of the commercial and academic communities to do for the government what it cannot do directly. He compares it to the federal government using the purse to influence state governments on things as easy as speed limit and minimum wage, and says employers have become agents of the federal government to some degree, not to the benefit of society. Jonathan Rauch on the New Attacks on Free Thought (2015)
Conditional funding as stealth prior restraint
The New Civil Liberties conversation with Philip Hamburger supplies the article’s most explicit equation of funding conditions with prior restraint. Zadek calls free speech a cherished right that distinguishes America from any Western democracy, with the most protected speech rights of any country on the planet, and says the government now regulates in a very profound way what a scholar or anybody else can publish. He calls it prior restraint — not quite prior restraint, except that if you do it once you can never do it again — and then accepts the term outright: it is prior restraint, prior licensing of speech, a stealthy assault on free speech that could never have been done directly but is done with money. Hamburger answers, “That’s right.” The New Civil Liberties Movement (2021)
Zadek traces the mechanism to taxation: the federal government does not earn money but takes it from taxpayers, then gives it back conditionally, not for the common defense or the common good but to coerce the surrendering of constitutional rights. He says the government takes money from us with us getting no benefit, only so that it can have the power to coerce, and he objects to Hamburger’s book title Purchasing Submission on the ground that purchasing sounds like willing buyer, willing seller, whereas the government takes away your money and gives it back only on conditions. Without the money it took, he says, it cannot have the power. The New Civil Liberties Movement (2021)
Hamburger’s example is Title IX, which he says bars sex discrimination in educational institutions but has been misused through interpretation or guidance from the Department of Education to suppress sexual and political speech in nasty little inquisitorial tribunals. His point is that this is not a general prohibition in Title IX: the law says that if you get educational spending from the federal government, the institution has to start censoring speech, or stop discrimination including censoring speech, according to the interpretation. He notes it is rather dubious whether the federal government has any congressional power over education, that this is largely undisputed, and that Title IX reflected that acknowledgment by using money to control what otherwise lies outside the constitutional ambit of the federal government. The New Civil Liberties Movement (2021)
Proposals to regulate social media
In the censorship episode, Zadek states that we have freedom of the press embodied in the First Amendment, that the concept is misunderstood, and that we take it to mean newspapers initially and now all media, which is not what the founders had in mind. He describes the Hawley suggestion as sending checks to Washington if you are a social media company in the hopes that they do not close you up, and contrasts it with Frank Buckley’s proposal and with what he calls the Zadek proposal: do absolutely nothing because there is no problem. Who Will Censure the Censors? (2019)
Buckley answers that the problem with the Zadek solution is that people think there is a problem and there is a demand to do something. What he proposed was the least intrusive thing available: employ more lawyers and set up a commission not composed of anti-trust experts but of people charged with investigating how social media might abuse its position for political reasons. He argues that merely doing this solves the problem, because the media giants having to share information with the commission would be adequately policed by themselves, and that if the commission discovered an effort to subvert one particular viewpoint that would itself suffice to police them. Who Will Censure the Censors? (2019)
Buckley grounds the approach in an older regulatory debate: in securities law there was something called merit regulation in state securities law, under which three states decided not to permit Apple to sell its shares in 1977, which he offers as evidence of stupidity. Against that he sets disclosure — sunlight, shining a flashlight on it, electric light as the most efficient policeman. If people are upset, he says, it is because they think something secret is happening, so shine some light on it, and that is the maximum anyone should do. Zadek presses him on whether the agency would have any enforcement powers, and Buckley answers that it would have no police powers and no breakup powers, merely reporting what it found — and probably, he adds, it would report nothing and everyone could relax. Who Will Censure the Censors? (2019)
Across episodes: no development
The excerpts show no development across episodes on the meaning of prior restraint: Zadek states the definition in the Rauch conversation, applies it to gun licensing with Harsanyi, treats funding conditions as prior licensing of speech with Hamburger, and invokes the founders’ rejection of prior restraint with Buckley, but no guest revises or extends the concept itself, and the later treatments repeat rather than refine the earlier one.
What the sources do not cover
The excerpts do not state the holding of any prior restraint case, the amendment on which any such case turned, or the name of any statute other than Title IX. They do not say what city Brandeis University is in, when it was founded, or what FIRE’s full name is beyond the two forms the speakers use. Several sections break off mid-sentence, and the excerpts supply no account of how prior restraint doctrine developed after the founding period.