The “chilling effect” refers to a phenomenon where individuals or groups refrain from engaging in expression for fear of running afoul of a law or regulation. Chilling effects generally occur when a law is either too broad or too vague. Individuals steer far clear from the reaches of the law for fear of retaliation, prosecution, or punitive governmental action.
Chilling Effect in the Courts
Justice Felix Frankfurter referred to the chilling effect in his concurring opinion in Wieman v. Updegraff (1952), a case involving a loyalty oath imposed on teachers. In that opinion, Justice Frankfurter declared:
[The loyalty oath] has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers.
Vague laws produce chilling effects because individuals do not know exactly when their expressive conduct or speech crosses the line and violates such rules. The Supreme Court explained this when examining the constitutionality of two provisions of the Communications Decency Act (CDA) that criminalized the online transmission of “patently offensive” and “indecent” communications. However, the law failed to define either term, thus creating a chilling effect.
Writing for the Court in Reno v. ACLU (1997), Justice John Paul Stevens explained:
The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content based regulation of speech. The vagueness of such a regulation raises special First Amendment concerns because of its obvious chilling effect on free speech.
Vague laws are not the only ones that can cause chilling effects. Overbroad laws and laws that impose a prior restraint on expression also can chill expression. Justice William Brennan referred to this in his dissenting opinion in Walker v. City of Birmingham (1967) when he wrote of “our overriding duty to insulate all individuals from the chilling effect upon exercise of First Amendment freedoms generated by vagueness, overbreadth and unbridled discretion to limit their exercise.”
Laws that chill free expression do not provide the appropriate level of breathing space for First Amendment freedoms. The Court in New York Times Co. v. Sullivan (1964) created a new rule for allegedly defamatory statements about public officials—the actual malice rule—in order to combat the chilling effects that many state libel laws had on free expression.
A law that made the media and individuals liable for every false statement would have palpable chilling effects and dampen political discourse on important public issues. In his concurring opinion, Justice Arthur Goldberg recognized that “[t]he opinion of the Court conclusively demonstrates the chilling effect of the Alabama libel laws on First Amendment freedoms in the area of race relations.”
The late Yale Law Professor Alexander Bickel recognized that while “the criminal statute chills, the prior restraint freezes.” In this spirit, some lower court jurists have spoken not just of chilling effects but also of “freezing effects” when speaking of laws that negatively impact First Amendment freedoms.
Bickel, Alexander. The Morality of Consent. (1975).
Kendrick, Leslie. “Speech, Intent and the Chilling Effect.” William & Mary Law Review 54 (2013): 1633.
“Note: Chilling Effect in Constitutional Law.” Columbia Law Review 69 (1969): 808.
Schauer, Frederick. “Fear, Risk and the First Amendment: Unraveling the Chilling Effect.” Boston University Law Review 58 (1978): 685.