Chilling effect (law)

For other uses, see Chilling effect (disambiguation).

Part of a series on
Censorship
By media
Banned books · Banned films Re-edited film · Internet Music · Press · Radio · Thought Speech and expression Video games
Methods
Bleeping · Book burning Broadcast delay · Chilling effect Concision · Conspiracy of silence Content-control software Euphemism · Expurgation Gag order · Heckling Internet censorship circumvention Memory hole · Newspaper theft Pixelization · Political correctness Postal · Prior restraint Propaganda model Revisionism · Sanitization/Redaction Self-censorship · Speech code Strategic lawsuit · Verbal offence Whitewashing
Contexts
Corporate · Political · Religious Ideological · Criminal speech Hate speech · Media bias Suppression of dissent · Systemic bias
By country
Censorship · Freedom of speech Internet censorship
v · d · e

In a legal context, a chilling effect is the term used to describe the inhibition or discouragement of the legitimate exercise of a constitutional right by the threat of legal sanction.^[1] The right that is most often described as being supressed by a chilling effect is the right to free speech. A chilling effect may be caused by legal actions such as the passing of a law, the decision of a court, or the threat of a lawsuit; any legal action that would cause people to hesitate to exercise their right to free speech for fear of the legal consequences. When that fear is brought about by the threat of a libel lawsuit, it is called libel chill.^[2] A lawsuit that is started specifically for the purpose of creating a chilling effect may be called a Strategic Lawsuit Against Public Participation, or "SLAPP" suit.

Usage

In United States and Canadian law, the term chilling effects refers to the stifling effect that vague or overbroad laws may have on legitimate speech activity.

An example of the "chilling effect" in Canadian case law can be found in Iorfida v. MacIntyre where the constitutionality of a criminal law prohibiting the publication of literature depicting illicit drug use was challenged. The court found that the law had a "chilling effect" on legitimate forms of expression and could stifle political debate on issues such as the legalization of marijuana. ^[3] The court noted that it did not adopt the same "chilling effect" analysis used in American law but considered the chilling effect of the law as a part of its own analysis.^[4]

Recognition that a law may allow for a chilling effect as a vehicle for political libel or vexatious litigation provides motivation to change such defamation laws, and therefore prevent the suppression of free speech and censorship.^{[citation needed]}

History

The term chilling effect had been in use in the United States since as early as 1950.^[5] It, however, became further used as a legal term when William J. Brennan, a justice of the United States Supreme Court, used it in a judicial decision (Lamont v. Postmaster General) which required a postal patron receiving "communist political propaganda"^[6] to specifically authorize the delivery.^[7]

The Lamont case, however, did not center around a law that explicitly stifles free speech. The "chilling effect" referred to at the time was a "deterrent effect" on freedom of expression — even when there is no law explicitly prohibiting it. However, in general, "chilling effect" is now often used in reference to laws or actions that do not explicitly prohibit legitimate speech, but that impose undue burdens.^{[7][not in citation given]}

See also

• Censorship
• Culture of fear
• Fear mongering
• Franchise fraud
• Legal terrorism
• Media transparency
• Prior restraint
• Strategic lawsuit against public participation
• Simon Singh, British author sued by chiropractors in a case widely given as an example of chilling effects

References

1. ^ chilling effect. (n.d.). Retrieved October 19th, 2011, from http://law.yourdictionary.com/chilling-effect
2. ^ Green, A. (2009, October 15). Banish the libel chill. The Guardian. Retrieved from http://www.guardian.co.uk/commentisfree/libertycentral/2009/oct/15/simon-singh-libel-laws-chiropractic
3. ^ Iorfida v. MacIntyre, 1994 CanLII 7341 (ON SC)at para. 20, <http://canlii.ca/s/wwhi> retrieved on 2011-10-25
4. ^ Iorfida v. MacIntyre, 1994 CanLII 7341 (ON SC) at para. 37, <http://canlii.ca/s/wwhi> retrieved on 2011-10-25
5. ^ Freund, Paul A.. "4 Vanderbilt Law Review 533, at 539 (1950-1951): The Supreme Court and Civil Liberties". http://heinonline.org/HOL/Page?handle=hein.journals/vanlr4&id=547&collection=journals. 
6. ^ Safire, William (2005-07-20). "Safire Urges Federal Journalist Shield Law". Center For Individual Freedom. http://www.cfif.org/htdocs/freedomline/current/guest_commentary/saffire-shield-law.htm. Retrieved 2008-06-18. "Justice Brennan reported having written a 1965 decision striking down a state’s intrusion on civil liberty because of its “chilling effect upon the exercise of First Amendment rights...”" 
7. ^ ^{a b} "LAMONT V. POSTMASTER GENERAL, 381 U. S. 301 (1965)". Justia. http://supreme.justia.com/us/381/301/. Retrieved 2008-06-18. 

External links

• Chilling Effects Clearinghouse, containing many current examples of alleged chilling effects
• Terms associated with libel cases
• Cato Policy Analysis No. 270 Chilling The Internet? Lessons from FCC Regulation of Radio Broadcasting
• Libel Reform Campaign The Chilling Effect of English libel law