Chilling effect
Encyclopedia
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. 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. 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.
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. 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.
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.
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" to specifically authorize the delivery.
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.
Strategic lawsuit against public participation
A strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....
, or "SLAPP" suit.
Usage
In United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
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. 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.
Recognition that a law may allow for a chilling effect as a vehicle for political libel
Political libel
The criminal statutes protecting nobility from criticism in 16th and 17th century England eventually evolved into various categories of political libel . Cases of political libel and eventually damages actions were handled by the infamous Star Chamber until its abolition in 1641...
or vexatious litigation
Vexatious litigation
Vexatious litigation is legal action which is brought, regardless of its merits, solely to harass or subdue an adversary. It may take the form of a primary frivolous lawsuit or may be the repetitive, burdensome, and unwarranted filing of meritless motions in a matter which is otherwise a...
provides motivation to change such defamation laws, and therefore prevent the suppression of free speech and censorship.
History
The term chilling effect had been in use in the United States since as early as 1950. It, however, became further used as a legal term when William J. Brennan, a justiceAssociate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
of the United States Supreme Court, used it in a judicial decision (Lamont v. Postmaster General
Lamont v. Postmaster General
Lamont v. Postmaster General, 381 U.S. 301 , was a landmark First Amendment Supreme Court case, in which the ruling of the Supreme Court struck down § 305 of the Postal Service and Federal Employees Salary Act of 1962a federal statute requiring the Postmaster General to detain and deliver only upon...
) which required a postal patron receiving "communist political propaganda" to specifically authorize the delivery.
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.
See also
- CensorshipCensorshipthumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
- Culture of fearCulture of fearCulture of fear is a term used by certain scholars, writers, journalists and politicians who believe that some in society incite fear in the general public to achieve political goals, for example......
- Fear mongeringFear mongeringFear mongering is the use of fear to influence the opinions and actions of others towards some specific end...
- Franchise fraudFranchise fraudFranchise fraud is defined by the United States Federal Bureau of Investigation as a pyramid scheme.- Franchise fraud in U.S. federal law :The FBI website states:...
- Legal terrorism
- Media transparencyMedia transparencyMedia transparency is the concept of determining how and why information is conveyed through various means.As used in the humanities,the topic of media transparency implies openness and accountability...
- Prior restraintPrior restraintPrior restraint or prior censorship is censorship in which certain material may not be published or communicated, rather than not prohibiting publication but making the publisher answerable for what is made known...
- Strategic lawsuit against public participationStrategic lawsuit against public participationA strategic lawsuit against public participation is a lawsuit that is intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition....
- Simon SinghSimon SinghSimon Lehna Singh, MBE is a British author who has specialised in writing about mathematical and scientific topics in an accessible manner....
, British author sued by chiropractors in a case widely given as an example of chilling effects
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