“Chilling effect” on speech is the most common metaphor in First Amendment law. The government may not punish people for expressing unpopular views, nor may it create a climate of fear (i.e., a chill) that induces citizens to censor themselves to stay out of trouble. Not surprisingly, chill is notoriously difficult to quantify. Courts have spilled many gallons of ink explaining why one government action would cause someone to remain silent, thus violating the First Amendment, whereas another doesn’t cross the line.
As regular Torch readers know, one of FIRE’s ongoing Stand Up For Speech Litigation Project lawsuits challenges the constitutionality of Chicago State University’s efforts to shut down a faculty blog, CSU Faculty Voice, that harshly criticizes the CSU administration. After the court denied CSU’s motion to throw the case out of court, the plaintiffs—Professors Phillip Beverly and Robert Bionaz—asked the court to order CSU to suspend the policies that they are challenging while the lawsuit is pending. (For those who speak legalese, the plaintiffs filed for a preliminary injunction.)
This kind of order is not easy to get—courts call it “extraordinary relief”—because it requires a court to decide that a case is so clear-cut that the plaintiffs are entitled to a remedy (in this case, the suspension of unconstitutional policies) before an ultimate decision is reached. Judges are reluctant to grant a preliminary injunction without strong evidence that (1) the plaintiffs will win the case in the end, and (2) that the plaintiffs will suffer further injustice by having to wait for the judicial process to be complete.
Magistrate Judge Sheila Finnegan, who is deciding the motion, is no different. Accordingly, she asked Beverly and Bionaz to convince her that the defendants are still violating their First Amendment rights even though the CSU Faculty Voice is operational and seemingly as critical as ever of President Wayne Watson and his administration.
In a supplemental brief filed on Wednesday, the professors demonstrated what chill looks like. Since the lawsuit was filed on July 1, 2014, the number of posts on the blog by authors other than Beverly and Bionaz has dropped by more than 60 percent. Of the original group of regular contributors, just half remain, leaving only three bloggers in addition to the plaintiffs, two of whom have not posted for the last several months. Before the administration targeted the blog, nearly half of the postings had comments; since the beginning of 2014, that number has dropped to 19 percent.
At a recent hearing, CSU’s lawyer suggested that the decrease in participation showed that “maybe [CSU community members are] bored with the blog.” That’s an interesting theory for a blog whose readership has increased 630 percent from September 2013 until now, with an average of 23,874 page views per month in 2015.
The question is not whether the blog has continued to function in spite of CSU’s actions, but whether those actions would “deter a person of ordinary firmness” from speaking freely. Professors Beverly and Bionaz are from particularly hardy stock and have continued to post on the blog. Even for them, however, it has not been business as usual. For instance, Professor Bionaz states in a sworn declaration to the court at paragraph 7 that “out of concern for the CSU administration retaliating against me or students or staff, I have refrained from publishing a number of pieces that would further demonstrate the misdeeds of the Watson administration.”
It should not take an act of heroism to exercise a constitutional right. In response to Magistrate Judge Finnegan’s request, plaintiffs have demonstrated not just chilled speech, but speech in a polar vortex.
Magistrate Judge Finnegan should issue her ruling sometime in June. We’ll report on what she says as soon as we hear.