Courts frequently assess the constitutionality of government regulation on free speech by reference to the law’s impact on hypothetical expression not before the court. In some instances, courts have permitted litigants whose speech is not regulated by a statute to nevertheless raise First Amendment overbreadth challenges on the basis that third-party expression might be chilled—as in, silenced. Still, in other instances, courts have invalidated government regulation on the basis of its impact upon the hypothetical expression of others. In either event, the concept of a chilling effect is a speculative and superfluous misnomer that has no place in First Amendment free speech jurisprudence. The chilling effect doctrine, which reasons that laws that chill speech are unconstitutional, makes too many false assumptions about the speakers’ knowledge of the law, their ability to correctly apply the law, and their willingness to conform to the law in order to adequately capture constitutionally protected speech. For this reason, whether a law might deter putative speakers from engaging in their desired expression is an important concern, but one that should be abandoned as a measure of constitutional standing and harm.
To date, scholars have addressed the chilling effect doctrine only in relation to other aspects of constitutional law without fully contemplating its role in First Amendment jurisprudence. As a result, the relevant literature is highly fractured. By focusing solely on the chilling effect doctrine and its shaky underpinnings, this Article draws from existing scholarship to create a new, universal framework for critiquing the doctrine. Because the chilling effect doctrine arises from faulty assumptions regarding knowledge and conformity, it should be abdicated and replaced with a direct impact test premised on how hypothetical expression would fare under the challenged regulation.
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol48/iss1/7