Speech, intent, and the chilling effect.

• Author: Kendrick, Leslie
• Position: Introduction to II. Rough Judgment: The Speculative Chilling Effect A. Overinclusiveness 1. Specific-Intent Requirements, p. 1633-1662

Speaker's intent requirements are a common but unremarked feature of First Amendment law. From the "actual malice" standard for defamation to the specific-intent requirement for incitement, many types of expression are protected or unprotected depending on the state of mind with which they are said. To the extent that courts and commentators have considered why speaker's intent should determine First Amendment protection, they have relied upon the chilling effect. On this view, imposing strict liability for harmful speech, such as defamatory statements, would overdeter, or chill, valuable speech, such as true political information. Intent requirements are necessary prophylactically to provide "breathing space "for protected speech.

This Article argues that, although the chilling effect may be a real concern, as a justification for speaker's intent requirements, it proves unsatisfactory. It cannot explain existing intent requirements, and the difficulties of measuring and remedying chilling effects cast doubt on whether they could ever provide the sole justification for the choice of one intent requirement over another. The inadequacy of the chilling effect leaves the problem of speaker's intent in need of further explanation and raises more general concerns about the use of deterrence-based arguments in constitutional law.

TABLE OF CONTENTS INTRODUCTION I. INTENT AND THE CHILLING EFFECT A. Intent Requirements in First Amendment Law 1. Unprotected Categories 2. Other Examples B. The Chilling Effect Account of Speaker's Intent 1. Why Chilling Matters 2. How Chilling Works II. ROUGH JUDGMENT: THE SPECULATIVE CHILLING EFFECT A. Overinclusiveness 1. Specific-Intent Requirements 2. Low-Value Expression: Obscenity and Child Pornography B. Underinclusiveness 1. The Underinclusiveness of an Intent Requirement 2. The Case of Litigation Costs 3. The Chilling Effect and Content-Neutral Laws III. A QUESTION OF POLICY: THE EMPIRICAL CHILLING EFFECT A. Empirical Accounts of the Chilling Effect 1. Litigation Data 2. Quantitative Empirical Comparisons 3. Interviews and Surveys 4. Economic Models B. The Chilling Effect and the Limits of Empirical Inquiry IV. A QUESTION OF PRINCIPLE: BEYOND THE CHILLING EFFECT CONCLUSION INTRODUCTION

Although much has been written about the role of government purpose in First Amendment analysis, (1) remarkably little has been said about speaker's intent. (2) And yet, across many areas, First Amendment law determines the protection of speech by reference to the state of mind, or intent, of the speaker. (3) Incitement, for example, is speech that intends and is likely to produce imminent lawless action. (4) The constitutional standards for defamation famously turn on the state of mind of the speaker. (5) Punishment for distributing obscenity or child pornography requires proof of recklessness or knowledge as to the factual contents of the material. (6) In these and other areas, a speaker's state of mind determines the status of his expression under the First Amendment.

Despite the frequency of these intent requirements, the reasons behind them are not clear. The harm or value inherent in expression is unlikely to change with the state of mind with which it is said. Why, then, should the same statement be treated differently depending on the speaker's intent? This puzzle is rarely remarked upon, let alone analyzed.

To the extent that the Supreme Court has answered the question, it has relied on the chilling effect. (7) The few commentators to address the issue have also concluded that the chilling effect is the only

normatively legitimate reason for constitutional speech protection to turn on speaker's intent. (8) On the chilling effect account, the intent of the speaker has no inherent relation to the protection of the speech: speech is protected or unprotected based upon its value or harm. Intent requirements are useful, however, in ensuring that regulation of unprotected expression does not incidentally deter protected expression. For example, on a chilling effect account, all false and defamatory statements are, on their own merits, unprotected. (9) But allowing liability for all such statements might deter true speech because people might hesitate to speak unless they are certain about the truth of their statements. Protected, true speech will thus be "chilled" by the regulation of unprotected, false speech.

One possible way to prevent this chilling effect is to give some false and defamatory statements "strategic protection." (10) Protecting negligent and good-faith false statements will encourage uncertain speakers to make true statements. By drawing the actual line between protected and unprotected speech prophylactically, courts create "breathing space" for expression that is truly protected. (11) Speaker's intent is simply an expedient basis on which to draw the line.

This chilling effect account holds some appeal. It explains a variety of First Amendment intent requirements with a single theory. That theory neatly resolves the puzzle of why speaker's intent should matter by concluding that, in fact, it does not, except as a convenient way to resolve other concerns. Moreover, the Supreme Court has explained its interest in speaker's intent in chilling effect terms. (12)

But there are reasons to doubt the chilling effect account. A claim of a chilling effect necessarily rests upon suppositions about the deterrent effects of law. These suppositions rest in turn upon predictions about the behavior of speakers under counterfactual conditions. Meanwhile, the selection of a remedy for chilling--such as an intent requirement--rests on similar predictions about the remedy's speech-protective effects. (13) In short, both the detection of a problem and the imposition of a remedy involve intractable empirical difficulties.

In the case of speaker's intent, these difficulties seriously undermine the chilling effect account. Though at first blush the existing intent requirements might seem convincing as products of rough empirical surmise, upon further scrutiny they often fail to persuade even by this standard. The existing empirical literature confirms the implausibility of the current requirements and illustrates the challenge of converting concerns about chilling into reliably precise and accurate legal rules. (14)

This is not to say that the chilling effect is not a real phenomenon. Nor is it to say that the chilling effect should play no role in the development of First Amendment rules. After all, intuition suggests that some legal rules will chill speech. The further a law encroaches on protected speech, the greater the risk that such speech will be penalized. The more likely speakers are to be penalized, the less they will speak. I do not deny this basic intuition. Moreover, First Amendment law should accommodate this intuition. The First Amendment is the appropriate place to acknowledge fears about chilled speech, and it would be unsound to deny such fears simply on the ground that they cannot be measured.

The problem comes in translating a legitimate concern about chilling into a legal rule. Our best instincts about the existence of chilling may be wide of the mark and, in any case, must usually remain a matter of surmise. Likewise, the imposition of a remedy-the choice of one intent requirement over another, not to mention over all other possible remedial rules--is likely to require more refinement than the available evidence will allow. Even when a constitutional remedy seems clearly preferable to the dangers of ignoring chilling, these uncertainties remain. They render it all but inevitable that the chilling effect will be invoked inconsistently across cases whose outcomes cannot be reconciled and whose accuracy must remain largely a matter of faith.

The significance of this conclusion is twofold. First, to the extent that speaker's intent presents a puzzle within First Amendment law, the chilling effect leaves the puzzle unsolved. Reliance on the chilling effect cannot render the existing intent requirements consistent with each other. (15) Furthermore, given the difficulties of measuring chilling and the seemingly subtle differences in the deterrent effects of existing intent requirements, the chilling effect is too weak to serve as the sole justification for the choice of one intent requirement over another. (16) If certain intent requirements...