Speech, intent, and the chilling effect.

• Author: Kendrick, Leslie
• Position: II. Rough Judgment: The Speculative Chilling Effect A. Overinclusiveness 2. Low-Value Expression: Obscenity and Child Pornography through Conclusion, with footnotes, p. 1662-1691

2. Low-Value Expression: Obscenity and Child Pornography

   The standards governing obscenity and child pornography seem similarly overprotective. As noted earlier, in Smith v. California and later cases, the Supreme Court required proof of the distributor's knowledge or recklessness regarding the factual contents of obscene materials. (129) The Court later extended the same standard to the child pornography context. (130) Thus, a standard very close to the actual malice standard governs distribution of obscenity and child pornography, with the caveat that it is unclear whether their recklessness requirement is quite as demanding. (131)

   Again, the comparison with defamation is instructive. Under the logic of the chilling effect, the expression most likely to be chilled is expression at the margins of protection. (132) For the defamatory speech governed by Sullivan, this marginal speech consists of possibly false but ultimately true information about public figures regarding a matter of public concern. (133) It is clear why such speech would contribute to the features that give protected expression affirmative value.

   It is less clear, however, why the Court would insist on the same solicitude for borderline obscenity or child pornography. (134) At first glance, such expression seems to have few of the features that give protected speech affirmative value. Under Farber's view, for example, expression should be promoted because otherwise important information is underproduced. (135) Near-obscene material hardly supplies the sort of information Farber has in mind. Even if it did, Farber says that the market for pornography is so robust that it is not a public good and thus does not require special protection from chilling. (136) Schauer's view similarly invokes the importance of free expression "for the uninhibited exchange of information, the active search for truth and the open criticism of government." (137) The near-obscene, again, seems rather far afield from this mission.

   On these terms, a stronger argument for protection existed when there was a danger that a film adaptation of Lady Chatterley's Lover could be censored--that is, when Smith v. California was decided. (138) But this is only to say that the chilling effect may have been an acceptable justification at the time of Smith, not that it remains one. As early as the mid-1960s, when the Court was writing approvingly of Smith in its defamation jurisprudence, obscenity was already a much narrower category. (139) Since then, the Miller test (140) has still defined the category quite narrowly. (141) And to the extent that some valuable expression still falls at the margins, it is likely dwarfed by less valuable marginal expression.

   The case for child pornography is worse. To apply chilling effect reasoning to child pornography is to claim that sexually explicit materials depicting people who appear to be minors not only should be protected but should be affirmatively insulated from the incidental effects of regulation. (142)

   This is not to say that there are no views under which these materials might merit special protection. One might take the view that sexual speech is vitally important and that its restriction is likely to rest on flawed views of sexuality generally, or female sexuality in particular. (143) Those valuing expression for autonomy-based reasons might view it as facilitating self-expression or self-development. (144) One might argue that, to the extent that sexual speech seeks to influence social mores, it belongs to the political sphere. (145) More broadly, under many First Amendment theories, one could find it either imperative or expedient to resist value hierarchies and to hold all protected expression deserving of equal treatment. (146)

   These approaches, while possible as a matter of normative justification, are not available as long as our mission is to account for the doctrine as it exists. The Supreme Court has quite clearly endorsed some degree of value hierarchy for speech. (147) Most importantly for present purposes, it has said that political speech--of the type protected in Sullivan--is at the "core" of First Amendment protection, (148) and that sexual content--of the type chilled by obscenity and child pornography laws--is at the periphery. (149) Indeed, the Court has recently rejected claims about the chilling of sexual content because of its allegedly minimal value. (150) Under a hierarchical approach, protections for marginal speech in the Sullivan context should look quite different from protections for borderline obscenity and child pornography.

   The picture grows even more puzzling if one recalls that defamatory statements about private figures regarding matters of public concern are protected by a negligence standard, not actual malice. (151) Thus, borderline obscenity and child pornography actually receive more protection against chilling than certain possibly false, but ultimately true statements pertaining to matters of public concern. One might justify this result through a conception of free expression that provides a great deal of privacy protection, but the Supreme Court generally places a premium on the production of public information and tips the balance in favor of this imperative. (152) The fact that sexual speech receives more protection than production of some public information makes it all the more difficult to rationalize the existing intent requirements in terms of the chilling effect.

   Thus, the chilling effect account of existing intent requirements seems overinclusive in important respects. Some might argue that protecting more speech than necessary is not a serious fault for a First Amendment system. One need not take issue with this statement as a general matter to conclude that, as applied to the chilling effect, it is an unavailing dodge. All laws have incidental effects on expression. (153) The goal of the chilling effect is to identify when these incidental effects are out of range and to readjust them through appropriate remedies. If there is no such thing as too much protection, then many more laws should come under scrutiny. As we shall see in the next Section, there is already a good case that, under existing standards, many more laws should do just that. But the chilling effect cannot be a one-way ratchet without opening all laws up to serious question. It must help to decide when special solicitude against deterrent effects is appropriate.

   2. Underinclusiveness

   As suggested earlier, the Sullivan actual malice standard--unlike the specific-intent requirements of incitement and threats--has some intuitive plausibility as a remedy for chilling. (154) Even here, however, the chilling effect proves unsatisfactory. First, it is not clear that an intent requirement for defamation reduces chilling. Second, other aspects of defamation law seem equally reasonable candidates for chilling analysis. Finally, acceptance of the chilling rationale here conflicts with the fundamental First Amendment distinction between content-based and content-neutral laws.

1. The Underinclusiveness of an Intent Requirement

   Though the chilling effect may plausibly capture a problem with the common law of defamation, intent requirements may not be an effective answer to this problem. In the defamation context, chilling largely occurs through the mechanism of financial cost. (155) Legal liability costs defendants money, which they do not wish to pay. Their desire to avoid the costs of liability prompts them to avoid making statements the truth of which is uncertain. This, at least, is the hypothesis of the chilling effect.

   But intent requirements may do very little to change the costs of libel for potential defendants. (156) First, the actual malice standard does not assure correct outcomes, as Sullivan itself illustrates. The Court in Sullivan was so concerned that an Alabama jury would misapply the actual malice standard on remand that, in extremely pointed dictum, it reviewed the evidence itself and concluded that it would not meet the newly established standard. (157) Given that the Supreme Court cannot review every case, Sullivan left a risk of error for subsequent cases.

   Even if Sullivan materially reduces the likelihood of adverse judgments, these are not the only costs of litigation. Defense costs can far outweigh the costs of a judgment, and even when the likelihood of an adverse outcome is low, litigation costs can remain high. (158) Intent requirements do little to address these costs because they "operate[] at the wrong end of the litigation." (159) They may increase the defendant's prospect of victory, but this alteration may do very little to affect the likelihood of suit or the costs of a defense. (160) True, the prospect of having to establish knowledge or recklessness may deter some would-be plaintiffs, but it may be hard for plaintiffs to estimate their likelihood of showing actual malice in advance of discovery. (161) In addition, some may sue, not strictly for the prospect of victory, but because suing is its own form of vindication. (162) These suits will occur despite the legal standard, and they will still be quite costly to defend. This line of argument receives support from the number of jurisdictions that have supplemented the constitutional rules with other protections, most notably anti-SLAPP provisions against strategic lawsuits. (163) On one view, then, intent requirements are not sufficient to address the problem of chilling.

   On an even darker view, intent requirements may actually exacerbate the problem. (164) Post-Sullivan, the defendant's state of mind is a central legal question in any defamation case. This is a question of fact, which justifies exhaustive discovery into what information the defendant had and what she did with it. (165) In addition, as the Supreme Court has recognized, courts may be unwilling to answer this question as a matter of law, such that a trial is...