Chilling Effect

• Author: Kenneth L. Karst
• Pages: 354-355

Page 354

Law is carried forward on a stream of language. Metaphor not only reflects the growth of constitutional law but nourishes it as well. Since the 1960s, when the WARREN COURT widened the domain of the FIRST AMENDMENT, Justices have frequently remarked on laws' "chilling effects" on the FREEDOM OF SPEECH. A statute tainted by VAGUENESS or OVERBREADTH, for example, restricts the freedom of expression not only by directly subjecting people to the laws' sanctions but also by threatening others. Because the very existence of such a law may induce self-censorship when the reach of the law is uncertain, the law may be held INVALID ON ITS FACE. The assumed causal connection between vague legislation and self-censorship was made by the Supreme Court as early as HERNDON V. LOWRY (1937); half a century later, circulating the coinage of Justice FELIX FRANKFURTER, lawyers and judges express similar assumptions in the language of chilling effects.

The assumption plainly makes more sense in some cases than it does in others. For a law's uncertainty actually to chill speech, the would-be speaker must be conscious of the uncertainty. Yet few of us go about our day-to-day business with the statute book in hand. A statute forbidding insulting language may be vague, but its uncertainty is unlikely to have any actual chilling effect on speech in face-to-face street encounters. Yet a court striking that law down?even in application to one whose insults fit the Supreme Court's narrow definition of FIGHTING WORDS?is apt to speak of the law's chilling effects.

For chilling effects that are real rather than assumed, we must look to institutional speakers?publishers, broad-casters, advertisers, political parties, groups promoting causes?who regularly inquire into the letter of the law and its interpretation by the courts. Magazine editors, for example, routinely seek legal counsel about defamation. Here the uncertainty of the law's reach does not lie in any statutory language, for the law of libel and slander is largely the product of COMMON LAW judges. It was a concern for chilling effects, however, that led three concurring Justices in NEW YORK TIMES V. SULLIVAN (1964) to advocate an absolute rule protecting the press against damages for the libel of a public official. The majority's principle in the case, which would allow damages when a newspaper defames an official knowing that its statement

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is false, or in reckless...